author: JUSTICE GREEN

text:
    GERARD E. TANNER, Plaintiff-Appellant, v. THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, Defendant-Appellee.
    Fourth District
    No. 4—83—0425
    Opinion filed January 18, 1984.
    Rehearing denied February 21, 1984.

      James A. Martinkus, of Erwin, Martinkus, Cole & Ansel, Ltd., of Champaign, for appellant.
    Charles L. Palmer, of Franklin, Flynn & Palmer, of Champaign, and James J. Costello and Timothy Madigan, both of Office of University Counsel, of Urbana, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

Plaintiff, Gerard E. Tanner, appeals a judgment of the circuit court of Champaign County entered on June 1, 1983, after a bench trial, refusing to issue a writ of mandamus ordering defendant, the Board of Trustees of the University of Illinois, to award to plaintiff a degree of doctor of philosophy in business. We affirm.

Plaintiff filed a two-count complaint in the circuit court of Cook County on August 4, 1975. Both counts alleged that plaintiff had enrolled as a graduate student at the University of Illinois, Urbana-Champaign campus, and had completed the requirements for the doctorate sought. One count requested that defendant be ordered to issue the degree. The other count sought monetary damages for defendant’s wrongful denial of the degree. Upon defendant’s motion, the venue was transferred to Champaign County. On defendant’s motion, both counts were dismissed on February 15, 1976. On appeal this court held that the mandamus count stated a cause of action and reversed and remanded as to that count. The judgment on the count for money damages was affirmed on the theory that such an award could properly be awarded only in the court of claims. Tanner v. Board of Trustees (1977), 48 Ill. App. 3d 680, 363 N.E.2d 208.

Upon remand, and after various preliminary rulings were made, a bench trial commenced on May 26 and 27, 1982, with evidence being heard upon a second amended complaint sounding only in mandamus. Nearly a year later, on April 27, 1983, further evidence was presented and on April 28, 1983, oral arguments were heard and the court pronounced a ruling which was reduced to a written judgment denying relief and filed on June 1,1983.

On appeal, plaintiff maintains (1) the trial court abused its discretion in finding that defendant required a candidate for a doctorate to submit to oral preliminary examination; (2) even if such requirement existed, defendant had waived the requirement or was estopped from enforcing it; (3) the trial judge denied plaintiff a fair hearing because it failed to review all of the evidence; and (4) plaintiff was denied a fair hearing because the trial court refused to require counsel for plaintiff to withdraw from the case.

The thrust of plaintiffs case is based upon our language in deciding the case in the previous appeal. We said:

“Although we recognize that the University is under a discretionary and not a mandatory duty to issue degrees to persons participating in its curricula *** the University may not act maliciously or in bad faith by arbitrarily and capriciously refusing to award a degree to a student who fulfills its degree requirements.” (Tanner v. Board of Trustees (1977), 48 Ill. App. 3d 680, 682-83, 363 N.E.2d 208, 209-10.)

Plaintiff testified to certain conduct by faculty members which would have been arbitrary and capricious. However, these allegations were strongly denied by either the persons involved or other witnesses. The trial court could properly have rejected this testimony, and we see no purpose in repeating it here. In the succeeding paragraphs we set forth the evidence, omitting plaintiff’s testimony which was denied by credible testimony and which could have been rejected by the trier of fact.

The evidence showed that the program for obtaining a degree of doctor of philosophy usually has three stages. In the first stage the candidate (1) is accepted by the school, (2) obtains an advisor from the faculty, (3) with the guidance of the advisor, selects certain classroom study to undertake, (4) completes the courses, and (5) takes a comprehensive examination covering those courses. In the second stage, the candidate undergoes preliminary examinations to determine whether the candidate is knowledgeable in his selected field and likely to be able to write a worthwhile thesis. In the third stage the candidate performs the research, writes a thesis, and defends it before a committee selected to examine the candidate. If the candidate successfully defends his thesis and it is accepted by the committee, the candidate has completed requirements for the degree.

The evidence is undisputed that plaintiff was accepted by the defendant institution for its Ph.D. program in business, took the various courses agreed upon, passed those courses with high grades and was excused from taking the comprehensive examinations. The major dispute concerns plaintiff’s performance on the oral examination, preliminary to his writing his thesis.

In seeking the Ph.D. in business, plaintiff selected management science as his “major area” of study and statistics as his “minor area.” Richard Evans was the leader of the faculty group interested in management science.

In September 1972, Evans asked plaintiff to select a preliminary examination committee who would give him those examinations. Plaintiff selected his advisor, Vjvijay Marathe, Walter Rom, and Donald Roberts. Marathe and Rom specialized in management science, while Roberts specialized in statistics. Plaintiff originally planned to take the exams in October, but Evans suggested that December would be a better time. The committee decided to have each of the members prepare written questions to be given to plaintiff to answer in the week between Christmas and New Year’s Day with oral examination to follow. Marathe and Rom were to submit questions concerning management science, while Roberts’ questions were to be on the subject of statistics. Marathe and Rom submitted their questions at the proposed time, but Roberts did not submit his questions.

While awaiting the preliminary examinations, plaintiff had secured employment as a lecturer at the University of Illinois at the Chicago Circle campus which was to begin in January 1973. In early January, plaintiff left for the new job after having obtained a waiver of the requirement that a doctoral candidate remain in residence until preliminary examinations had been completed. For this and other reasons, plaintiff made several requests to Roberts to give him Roberts’ portion of the written examination. In March, plaintiff made a request to Marathe that Roberts be removed from the committee. A few days later Roberts submitted an examination and plaintiff completed it. Oral examinations were set for April and plaintiff made preparations, but a few days before the scheduled date Roberts said he was unavailable. A June date was set, but Roberts would not participate then. The oral preliminary examination was finally given on August 25, 1973.

The parties do not dispute that plaintiff did not do well on the questions asked by Roberts. The questions concerned the field of statistics which was plaintiff’s minor area of study. The examination was halted at this point. The committee decided to allow plaintiff a second examination. That examination was conducted in Marathe’s office. Plaintiff was unable to answer certain of Roberts’ questions, and Roberts became frustrated. The committee offered plaintiff the alternative of presenting a paper in a classroom setting, but plaintiff rejected this on the basis that he had already demonstrated his teaching ability. Roberts then left the committee and plaintiff was given the option of preparing a paper to be evaluated by the committee or taking a new comprehensive “written exam.” Although the proposal presented to plaintiff called for the examination to be available in January 1974, it was not available until March of that year and when offered, the department of business took the position that the examination should have to be followed by an oral examination. The department later offered the alternative of an in-class examination to last a maximum of six hours. Plaintiff rejected the offer.

After the offer of an in-class written examination was rejected, further negotiations took place, but were futile and this litigation ensued.

In its findings the trial court noted:

“[Throughout all of this, it’s obvious that so far as the University was concerned, he [Tanner] must be in some manner successful in these oral prelims.”

Plaintiff contends that this finding was not supported by the evidence because no catalog sent by the department to prospective Ph.D. candidates for the 1971-72 school year set forth that oral examination was a necessary part of the preliminary examinations. Plaintiff maintains that the failure of that particular catalog to provide for preliminary oral examination prevented the defendant from making that requirement. Plaintiff relies on the rule that the catalog of a university forms the basis of the contract between the pupil and the university. Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634; see Wilson v. Illinois Benedictine College (1983), 112 Ill. App. 3d 932, 445 N.E.2d 901.

Here, plaintiff admitted at trial that before he started the preliminary examination process, the faculty had explained to him and he understood that part of the preliminary examination would be oral. He proceeded with the preliminary examination process without complaint as to this requirement and the faculty continued to work with him on this basis. Thus, any original contract between the parties that included the terms of the catalog was modified by plaintiff’s tacit assent to the proposed procedure. Substantial evidence was presented that in practice the department of business did require an oral examination as part of the preliminary examination. On the basis of the foregoing evidence the trial court (1) did not abuse its discretion in finding that defendant did require oral examination as part of the preliminary examination, and (2) was not in error in ruling that defendant was not prohibited from imposing the requirement.

Plaintiff asserts that defendant’s faculty waived any requirement for preliminary oral examination by (1) permitting an undue lapse of time between the written and oral preliminary examinations, (2) also permitting an undue disparity of time between the preliminary examinations in the “major area” and the “minor area,” (3) allowing plaintiff to work on his thesis prior to passing the preliminary examinations, and (4) promoting him at the Chicago Circle campus to the rank of assistant professor without requiring completion of those examinations. He also maintains that defendant was estopped to deny him his doctorate because the conduct of the faculty members involved was arbitrary and capricious.

The trial court heard the evidence in regard to waiver and estoppel. A substantial case was made that Roberts was dilatory in fulfilling his function on the committee and that the examining committee lacked firm leadership. However, much of the time lag may well have resulted from (1) the concession to plaintiff which allowed him to leave the campus before completion of his preliminary examinations, and (2) plaintiff’s unwillingness to cooperate with attempts to reach a reasonable solution to the problem. Considering all of the evidence, the trial court was not required to find the conduct of defendant’s faculty to be arbitrary or unreasonable.

Neither the concession permitting plaintiff to leave the campus, nor a concession permitting him to start on his thesis should operate as a waiver or an estoppel. No evidence gave any indication that defendant’s faculty misled plaintiff into relying on the fact that he would not have to complete his preliminary oral examinations. The trial court’s rejection of plaintiff’s theories on waiver and estoppel was not contrary to the manifest weight of the evidence.

In upholding the trial court’s determination that defendant’s faculty was not arbitrary and capricious in its dealings with plaintiff, we have considered the reluctance of courts to intervene in matters concerning awards for academic achievement. (Olsson v. Board of Higher Education (1980), 49 N.Y.2d 408, 426 N.Y.S.2d 248, 402 N.E.2d 1150; Goldberg v. Board of Regents (1979), 43 Colo. App. 340, 603 P.2d 974.) Because of the discretion properly possessed by defendant’s faculty in the matter and the lack of a clear right by plaintiff to the degree, the trial court did not err in denying mandamus. People ex rel. Hamer v. Board of Education (1974), 22 Ill. App. 3d 130, 316 N.E.2d 820; People ex rel. McGrady v. Carmody (1968), 104 Ill. App. 2d 137, 243 N.E.2d 19.

In August 1982, the trial judge who had heard most of the evidence, recused himself. A new judge was assigned. That judge conducted a pretrial conference on March 4, 1983, heard further evidence on April 27, 1983, and heard closing arguments on the next day. The judge then pronounced judgment. Prior to doing so, the judge stated:

“Well, gentlemen, yesterday I indicated I was not going to rule on this today. However, I took the transcript home with me and I set up past my usual bedtime and read the transcript of Mr. Tanner’s testimony.
I find — actually what happened, I had not read the cross-examination of Mr. Tanner, and what I’m saying is, I’m going to rule this morning, to move the case along.”

Plaintiff maintains that the foregoing statement indicates that the judge had not read the entire transcript. We disagree. The statement does not necessarily indicate that the court had not previously read the transcript. It could be taken as meaning that the judge read the transcript of plaintiff’s testimony the night before because he had not previously read the portion of that transcript containing the cross-examination of plaintiff. We note that in the formal order entered, the court stated that it had reviewed the transcript of the evidence taken before the previously presiding judge. The record does not show that the new judge gave insufficient consideration to the case.

An additional problem arose in this case because of the length of time that elapsed from the filing of the complaint to the judgment on appeal. When the venue was changed to Champaign County, the predecessor firm to plaintiff’s present law firm was retained. Gary Lietz was employed by that firm as an attorney and did certain work on the case. In June of 1979, Lietz left that firm and joined a firm not involved in the litigation. Then in June 1982, he went to work with counsel for defendant. The only hearing held in the instant case after that time, other than the March 4, 1983, pretrial conference, was that on April 27 and 28, 1983, when plaintiff was allowed to reopen his case and present the testimony of Roberts and plaintiff. Defense counsel did not present any evidence, but did cross-examine Roberts and plaintiff.

On April. 27, 1983, prior to the evidentiary hearing, plaintiff made a motion to disqualify defendant’s counsel on the basis that Lietz’ addition to defense counsel’s firm created a conflict of interest for that firm. The motion was supported by plaintiff’s affidavit stating in general terms that Lietz had been given confidential information. Lietz filed a counteraffidavit stating that he had attended three hearings on pleadings in the case, but could not remember participating in any discovery except to obtain documents requested by plaintiff. Lietz further swore that (1) he did not recall hearing, obtaining, or discussing any confidences or privileged information, and (2) since joining the defendant’s counsel’s firm he had not discussed any substantial matters of the case with defense counsel, nor done any work on the case. Defense counsel, Charles L. Palmer, presented his affidavit confirming Lietz’ denial of having any discussion of substance of the case with Palmer. Palmer alleged that plaintiff’s counsel had known of Lietz’ affiliation with defense counsel’s firm since June 1982, but had made no motion for disqualification until the date of the hearing. The trial court denied the motion.

Rule 5 — 105(a) and (d) of the Code of Professional Responsibility, adopted in 1980, provides:

“(a) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment ***.
* * *
(d) If a lawyer is required to decline employment or to withdraw from employment under Rule 5 — 105, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment.” 87 Ill. 2d R. 5 — 105(a), (d).

Prior to the adoption of the above rule, this court had held that where a husband had discussed his marital problems with a lawyer and that lawyer later filed a petition for separate maintenance on behalf of the wife, the lawyer had a conflict of interest which precluded his continued representation on behalf of the wife. (King v. King (1977), 52 Ill. App. 3d 749, 367 N.E.2d 1358.) Although the husband’s undisputed affidavit there stated that confidential matter had been disclosed to the lawyer, we stated that the holding would have been the same even though no confidential information had been given.

Complex problems arise when an attorney leaves one firm to join another. In many instances, there will be some litigation pending between the firms. Here, the attorney causing the alleged conflict of interest, Lietz, had spent a period of time with an intervening firm before joining defense counsel’s firm. Because, Lietz had actually participated earlier on behalf of plaintiff, the claimed conflict is more than vicarious. However, plaintiff’s affidavit made no showing of diligence in complaining of the conflict of interest, and the affidavit of Palmer which stated that plaintiff’s attorneys had known of Lietz’ entry into Palmer’s firm since July 1982 was not denied. Under these circumstances, we need not make a definitive holding on this difficult subject because we conclude that plaintiff waived the issue by not raising it earlier, preferably at the pretrial conference on March 4, 1983. Mullaney, Wells & Co. v. Savage (1980), 78 Ill. 2d 534, 402 N.E.2d 574.

In holding waiver to have occurred, we consider that there was no showing of actual prejudice to plaintiff. Our ruling is not to be taken to mean that lack of prejudice would cure a conflict of interest if timely raised.

Our affirmance is for the reasons stated.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LELAND WRESTLER, Defendant-Appellant.
    Third District
    No. 3—83—0224
    Opinion filed January 6, 1984.

      Edward R. Danner, of Malmgren Law Offices, Ltd., of Canton, for appellant.
    Joan C. Scott, State’s Attorney, of Lewistown (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant, Leland Wrestler, was charged with three counts of indecent liberties with a child (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 4(a)) and tried by a jury in the Fulton County circuit court. He was found guilty on all three counts and was sentenced to serve concurrent terms of four, eight and 12 years imprisonment for the three offenses.

In this appeal, the defendant raises two primary issues: (1) whether the trial court erred in denying the defendant’s motion to suppress ■ three tape-recorded telephone conversations and one face-to-face conversation between the defendant and the child victim; and (2) whether the defendant’s concurrent terms of imprisonment are excessive given the testimony adduced on defendant’s behalf at his sentencing hearing. We affirm.

The facts underlying the defendant’s three convictions of indecent liberties with a child are not, for the most part, in dispute. They need not be related except as necessary to explain our determination of the issues. Out of deference to the minor victim, her name will not appear in this opinion. She will be referred to, instead, as “the child.”

On January 27 and 28, 1982, the child and her mother met with Sergeant Daniel R Daly of the Fulton County Sheriff’s Department and then assistant State’s Attorney of Fulton County, Joan C. Scott.

The child provided detailed accounts of three of the occasions of sexual intercourse between herself and the defendant, who was age 59 at the time of his trial. The first instance of intercourse had occurred during early summer of 1979, when the child was 10 years old; the second, on the occasion of the celebration of her 11th birthday in March 1980; and the third, in the latter part of December 1981, when she was 12 years old. The child estimated that she had had intercourse with the defendant from 20 to 25 times between the summer of 1979 and December of 1981.

Based upon the information related during these meetings, Sergeant Daly prepared an application for an eavesdropping order. The three-page application summarized the child’s detailed accounts of the three acts of intercourse, including the fact that the defendant had applied contraceptive cream to the child's vagina prior to intercourse on the last two occasions described. Daly expressed his opinion that a telephone call by the child to the defendant “could result in discussion and admissions by [the defendant] of his participation in indecent liberties with a child” which would constitute evidence of the crime. Accordingly; Daly requested "that an order for the use of an eavesdropping device be used [sic] to record any and all phone conversations ■with [the defendant] from January 29, 1982 at 2:00 p.m. until February 9,1982 at 2:00 p.m. between *** [the child] and [the defendant].”

At 2:35 p.m. on January 29, 1982, Judge Wilhelm entered an order for use of an eavesdropping device, finding that "reasonable grounds *** to believe that the felony of indecent liberties with a child *** [had] been committed by [the defendant], and *** that there [was] reasonable cause to believe that the particular conversations specified in the application” would occur during the period specified, and that the child and her mother consented to the recording and/or overhearing of such conversations. The order granted authority to Daniel P. Daly. Finally, the order specified that it was “to terminate as soon as said conversations are recorded.”

Pursuant to the eavesdropping order, telephone conversations were recorded in the evening of January 29 and again on January 31, 1982. In the first conversation, the child told the defendant that she had missed her period and she thought that she might have become pregnant as a result of sexual relations they had had in December. She asked him if he thought the contraceptive cream had been effective. He said he was sure it had been. He was “very, very” concerned about her, but indicated that he could not speak freely because of the presence of other persons in the room where he was speaking.

During the second conversation, the child said she still thought she was pregnant and was scared. The defendant offered to meet her to talk the next day, but again said that he was not free to speak over the telephone. He indicated that “Mom” was in the room. The child asked how old the cream was that he had used. He said it was not old.

On February 1, 1982, Deputy Curtis Pierce of the Fulton County Sheriff’s Department filed a supplemental application for use of an eavesdropping device in which he summarized the recorded telephone conversations and concluded that the defendant was inhibited about discussing sexual matters with the child when he was in the presence of other persons. Pierce requested that the prior order remain in effeet and that a supplemental order be issued authorizing the use of an eavesdropping device to record face-to-face conversations between the child and the defendant during the remainder of the period for which the prior order was in effect. An order granting the supplemental application was approved by Judge Wilhelm at 1:15 p.m. on February 1, 1982. That order specifically provided that it was to terminate as soon as the particular face-to-face conversations were recorded.

Then, around 2:30 p.m. of February 1, 1982, a third telephone call was placed by the child to the defendant and recorded. She told him she was home alone until 6 p.m. The defendant stated that he would stop by to talk to her and that “the things she was worrying about” were “all taken care of.” An hour later the defendant appeared at the child’s home and their conversation was there recorded.

The defendant produced an early pregnancy test kit and explained to the child that she was to secretly collect a sample of her urine the next morning and tell her mother that she was sick so that she would not have to go to school. Then, when everyone in the household had left, the defendant would come by her home and conduct the pregnancy test. The defendant further explained that if the results indicated pregnancy he was going to take her to an abortion clinic in Peoria and return her to her home, nonpregnant, by the time the school bus reached her house after school. The defendant acknowledged that he knew he was the only person who had ever “bothered” her. He told the child that her mother would put her in a “home” if she told her mother about the pregnancy; that rather than go to prison, the defendant would take his own life if she told her mother she was pregnant by him; that as far as the defendant was concerned, the child “belonged” to him, not to her mother; and that they would never again have sex together. The defendant then said that he was going to change his own and his wife’s wills to provide for her.

As the defendant left, he was met by Deputy Pierce, who had overheard the face-to-face conversation from the adjoining apartment. Pierce arrested the defendant and removed the pregnancy test kit from his person.

Prior to trial the defendant moved to suppress all of the recorded conversations on grounds that they were illegally obtained. The motion was denied, as was a subsequent motion in limine advanced on the same grounds. The recordings were played to the jury during the State’s case-in-chief over defendant’s objection.

In his appeal, the defendant contends that the admission into evidence of the tape recorded conversations was error for several reasons. Initially, defendant asserts that Judge Wilhelm’s first order illegaily authorized the use of an eavesdropping device for 11 days, one day in excess of the statutory maximum. (See Ill. Rev. Stat. 1981, ch. 38, pars. 108A — 5(b), 108A — 9(a)(2).) While the defendant’s point is well taken, we do not believe that the trial court, to whom the point was first put, erred in rejecting this argument.

When the one-day discrepancy was brought to the court’s attention, the prosecutor explained that she had referred to a calendar which provided space or lines for five, rather than six, calendar weeks per month. Consequently, when January 31 fell on a Sunday, as it did in 1982, her calendar displayed the dates in question as follows:

5th Calendar week: 24/31 25 26 27 28 29 30

(January)

1st Calendar week: 1 2 3 4 5 6

(February)

2nd Calendar week: 7 8 9 10 11 12 13

(February)

In counting out the 10-day statutory period, the prosecutor inadvertently missed the 31st of January. The trial court apparently found this explanation credible under the circumstances. The court held that the State’s error was technical and did not invalidate the order since it was actually in effect for less than 10 days.

In urging a reversal of the denial of defendant’s motion to suppress on the basis of the technical error, the defendant relies solely upon the doctrine of strict construction in applying the eavesdropping statute. (People v. Monoson (1979), 75 Ill. App. 3d 1, 393 N.E.2d 1239.) Interestingly, while Monoson specifically approves the “strict construction” standard for reviewing eavesdropping orders, the court there skirted the defendant’s claims of “procedural” defects and applied the strict construction standard only to substantive defects in the content of the State’s applications for use of eavesdropping devices and affirmed the trial court’s order of suppression on the substantive grounds. The court did not reach the defendant’s additional contention that the consenting party had consented to the use of the eavesdropping device after the State’s Attorney authorized the application for an eavesdropping order. People v. Monoson (1979), 75 Ill. App. 3d 1, 5, 393 N.E.2d 1239, 1243.

Subsequent decisions in which technical, or procedural, defects in eavesdropping applications have been considered by reviewing courts indicate that the rule of strict construction may not require suppression where the legislative intent of the eavesdropping act is not impaired and where no possibility of prejudice to the defendant is stated. (People v. Sylvester (1980), 86 Ill. App. 3d 186, 407 N.E.2d 1002; People v. Pitchford, (1983), 115 Ill. App. 3d 164, 450 N.E.2d 349.) Thus, judgment granting motions to suppress were reversed where the claimed defect was failure to notarize or incorporate by reference the State’s Attorney’s authorization form into the application (Sylvester (violation of Ill. Rev. Stat. 1977, ch. 38, par. 108A — 3(a)(1))); and where an eavesdropping order was signed by the judge more than an hour after the beginning of the period for which use of an eavesdropping device was authorized (Pitchford).

In our opinion, the 11-day period authorized by Judge Wilhelm on January 29, 1982, in violation of section 108A — 5(b) was a technical defect which, in this case, did not warrant the drastic remedy of suppression. Where, as here, a technical defect is not the product of intentional misconduct by law enforcement officials and does not defeat the legislative intent of protecting the citizenry from unnecessary and prolonged governmental intrusion into their private lives when less intrusive methods of investigation are available (see Sylvester), then, absent of any showing of actual prejudice to the defendant, suppression of an overheard and/or recorded material is not required.

In so ruling, we are not unmindful of the statutory mandate of section 108A — 9(a)(2). That section of the eavesdropping statute requires suppression when an order is “improperly” granted. We hold that the type of “impropriety” referred to in section 108A — 9(a)(2) does not include technical defects which are purely inadvertent, nonprejudicial and do not impair the legislative intent embodied in the statute.

The defendant argues next that the initial application for use of an eavesdropping device was fatally defective because it failed to establish reasonable cause to believe that the defendant had committed a felony and reasonable cause to believe that particular conversations would be obtained through the use of an eavesdropping device. (Ill. Rev. Stat. 1981, ch. 38, pars. 108A — 4(b), (c).) We disagree with both facets of defendant’s argument.

The expression “reasonable cause” for purposes of the eavesdropping statute has been equated with “probable cause” (Monoson). To determine whether probable cause is sufficiently stated in a complaint for issuance of a search warrant, the trial court is required to examine the facts under a “totality of the circumstances” analysis to determine whether “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Illinois v. Gates (1983), 462 U.S. 213, 238, 76 L. Ed. 2d 527, 548, 103 S. Ct. 2317, 2332.) Circumstances set forth relative to the informant’s veracity or reliability are relevant factors to the court’s probable cause determination. On review, it is our duty to ensure that the trial court “had a ‘substantial basis for *** concluding]’ that probable cause existed.” 462 U.S. 213, 238, 76 L. Ed. 2d 527, 548, 103 S. Ct. 2317, 2332, quoting Jones v. United States (1960), 362 U.S. 257, 271, 4 L. Ed. 2d 697, 708, 80 S. Ct. 725, 736.

The “totality of the circumstances” analysis is appropriate for rendering “reasonable cause” determinations on an application for use of an eavesdropping device as well. Our review of Sergeant Daly’s January 29 application convinces us that the trial court had a substantial basis for determining that reasonable cause existed under both subsection 108A — 4(b) and subsection 108A — 4(c) of the eavesdropping statute. The application provided sufficient details about the developing relationship to indicate the child’s intelligence, and considering her age and the circumstances surrounding her discussion of the offenses, the child’s reliability was adequately demonstrated. The factual details related in the application about specific places where the acts of intercourse occurred and the particular circumstances that on each occasion afforded the defendant an opportunity to be alone with the child, together with her recollection that there were somewhere between 20 and 25 instances of intercourse, were sufficient to support Judge Wilhelm’s determination that reasonable cause existed to believe that the defendant had committed a number of acts of indecent liberties with a child and that reasonable cause existed to believe that the relationship between the defendant and the victim was such that recorded conversations could be expected to result in admissions by the defendant.

Defendant’s third argument on the suppression issue is that the eavesdropping was conducted by an unauthorized individual. This argument proceeds from the fact that the January 29 order granted “an Order to Daniel P. Daly to overhear or record the *** conversations.” The record indicates that Daly was hospitalized shortly after the entry of the order. Consequently, Deputy Curtis Pierce assumed Daly’s duties in the investigation of this case. Pierce overheard and recorded the telephone conversations authorized by the January 29 order.

Initially, we note that in Sylvester the defendant advanced a similar argument on grounds that the court’s order authorizing “the agents of Chief Joseph Sylvester” and other named individuals to use an eavesdropping device inadequately identified the law enforcement officers. The court reviewed the applicable statutory provision (Ill. Rev. Stat. 1977, ch. 38, par. 108A — 1), which empowers the circuit judge to authorize the use of an eavesdropping device “by a law enforcement officer or agency having the responsibility for the investigation of any felony under Illinois law” (People v. Sylvester (1980), 86 Ill. App. 3d 186, 191, 407 N.E.2d 1002, 1007), and concluded that the order was not defective for failing to name the individual agents of Chief Sylvester. Specifically, the court held:

“There is no requirement that the application or order must identify the individuals or agency so authorized (see Ill. Rev. Stat. 1977, ch. 38, pars. 108A — 3(a), 108A — 5(a)), and we will not impose such a requirement when the legislature has not done so. People v. Kezerian (1979), 77 Ill. 2d 121, [32 Ill. Dec. 321], 395 N.E.2d 551.” 86 Ill. App. 3d 186, 191, 407 N.E.2d 1002, 1007.

The defendant attempts to distinguish Sylvester on grounds that the order in that case was sufficiently broad to encompass certain unnamed law enforcement officers, but that the order in the instant case was specifically limited to Sergeant Daly. While this argument is facially appealing, we are not persuaded that suppression of the recorded conversations was required merely because Deputy Pierce was not specifically named in the order.

The State argues that the order is sufficiently ambiguous to be construed as granting the order to Sargeant Daly, but not requiring him to carry it out personally. Thus, the State reasons, there was no legal impediment to Deputy Pierce carrying out the order as Daly’s agent. The State’s argument, though strained, recognizes the day-today operation of an investigative department and appears to comport with the spirit of the eavesdropping statute as interpreted in Sylvester.

In our opinion, and had time permitted, it may have been preferable procedure for the State’s Attorney, upon learning that Daly was incapacitated, to have had the order judicially amended prior to permitting Deputy Pierce to execute it. In any event, it is clear that under the circumstances presented in this case the eavesdropping was in all other respects conducted in compliance with Judge Wilhelm’s order, and the defendant was not in any way prejudiced by Pierce’s assumption of Daly’s authority to use the eavesdropping device. Accordingly, we hold that the trial court did not err in admitting the tape recordings into evidence over defendant’s objection on this basis.

Finally, defendant contends that there is no statutory authority for “supplemental” applications and orders for use of eavesdropping devices — ergo, the face-to-face conversation of February 1, 1982, should have been suppressed. Although the eavesdropping statute consistently refers to “an eavesdropping device” in the singular, it does not explicitly proscribe the issuance of multiple orders. Authority for multiple applications and orders appears in section 108A — 3. That section, in pertinent part, reads as follows:

“Each application for an order authorizing *** the use of an eavesdropping device shall be made in writing upon oath or affirmation to a circuit judge and shall state the applicant’s authority to make such application. Each application shall include the following:
* * *
(4) a statement of the existence of all previous applications known to the individual *** which have been made to any judge requesting permission to use an eavesdropping device involving the same persons in the present application, and the action taken by the judge on the previous applications;
(5) when the application is for an extension of an order, a statement setting forth the results so far obtained from the use of the eavesdropping device or an explanation of the failure to obtain such results.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, par. 108A — 3.

However, since the statute does not expressly refer to overlapping applications and orders, we must consider the legislative intent of the statute to resolve the question before us. As stated in Sylvester, the statute was intended “to protect the right of privacy and to provide [a] comprehensive [scheme] for authorization of communication interceptions.” People v. Sylvester (1980), 86 Ill. App. 3d 186, 192, 407 N.E.2d 1002, 1007.

The five-page supplemental application in this case complies -with the requirements for applications for subsequent orders in that it explained why the results under the prior order were unsatisfactory, what those results were, and why a face-to-face conversation about the felony could be expected to result from the use of the additional eavesdropping device. The defendant, during the January 31 telephone conversation, clearly indicated that he was anxious to discuss the child’s purported quandary with her in person. This situation presented something of a dilemma to the investigating officers, since their eavesdropping order was limited to telephonic conversations. It was impractical to have the child make arrangements for a time and place for a face-to-face conversation before the court had approved the use of an eavesdropping device to record such conversation. Consequently, the supplemental application, in addition to seeking authority to use another eavesdropping device, requested that the prior order remain in effect. This procedure enabled the officers to record both the telephone conversation in which arrangements were made to meet and the ensuing face-to-face conversation without unduly disrupting and prolonging the investigation. Certainly, had the State’s Attorney so chosen, he could have permitted the child to make the arrangements to meet in person before applying for a new eavesdropping order in hopes that a subsequent order would be issued promptly. This latter procedure would have posed additional risks for the child, but unquestionably would have been permissible under the statute. Yet the consequences to the defendant in terms of governmental intrusion on his right to privacy would have been no different had the latter procedure been followed in this case. The defendant’s apparent inhibitions about discussing sexual matters with the child over the telephone while he was in the presence of others was adequately explained in Deputy Pierce’s supplemental application of February 1, 1982. The parties to be overheard, the last effective date of the applications and the content of the conversations sought were common to both applications. The only significant difference between the two applications concerned the mode of conversation-telephonic or face-to-face — and the use of appropriate devices to record such conversations. Both orders specified that they automatically terminated as soon as the sought-after conversations about the felony were recorded.

It is our opinion that the orders as issued provided adequate protection against excessive or prolonged surveillance. Since the legislature chose not to expressly prohibit the use of supplemental eavesdropping applications, and we find that the orders in this case adequately complied with the spirit of the Act, we hold that the issuance of the supplemental order was not error and that the defendant’s motion to suppress was properly denied.

Lastly, we consider the defendant’s sentencing issue. The defendant contends that his sentence is excessive because the sentencing judge did not favorably consider the existence of certain mitigating factors and because he found in aggravation that the sentence imposed was necessary to deter others from committing the same crime. At the sentencing hearing, several witnesses testified on the defendant’s behalf. The defendant’s friends and neighbors testified that they had never seen the defendant make sexual advances to anyone, and they were not concerned about the safety of their minor daughters when their daughters were alone with him. In addition, the defendant’s wife testified that she would have a hard time supporting herself if her husband were imprisoned. The defendant’s son testified that he would give his father a job in Texas if he were placed on probation. The defendant, himself, testified that he had arthritis and a slight heart condition.

While the foregoing testimony constitutes some evidence of factors in mitigation under sections 5 — 5—3.1(8), (9), (10), (11) and (12), the sentencing judge was free to deemphasize these factors in arriving at an appropriate sentence. We have read the record of the sentencing hearing and it is clear that the judge considered all of the foregoing mitigating factors suggested by the defense, but did not find that they weighed significantly in his determination. The judge specifically found that section factors (6) and (7) — that the defendant was willing to make restitution and that he had no significant history of criminality — did carry weight in the defendant’s favor.

In aggravation, the court considered the child’s age at the times of the offenses and that the sentence was necessary to deter others. The record sufficiently supports the court’s findings of these aggravating factors. The sentences imposed for these repeated offenses are well within the statutory range for Class 1 felonies (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—l(aX4)). We cannot state based on the record before us that the sentencing judge abused his discretion in imposing concurrent sentences of imprisonment of four, eight and 12 years.

For the foregoing reasons, we affirm the judgment and sentence of the circuit court of Fulton County.

Affirmed.

STOUDER, P.J., and SCOTT, J., concur.


author: JUSTICE SULLIVAN

text:
    LOCAL 3236 OF THE ILLINOIS FEDERATION OF STATE OFFICE EDUCATORS, IFT-AFT, AFL-CIO, et al., Plaintiffs-Appellants, v. THE ILLINOIS STATE BOARD OF EDUCATION et al., Defendants-Appellees.
    First District (5th Division)
    No. 83—1612
    Opinion filed January 13, 1984.

      Stephen A. Yokich, of Cornfield and Feldman, of Chicago, for appellants.
    Neil F. Hartigan, Attorney General, of Chicago (Susan C. Weidel, Assistant Attorney General, of counsel), for appellees.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Plaintiffs appeal from an order of the trial court dismissing for lack of subject matter jurisdiction their action to compel defendants to arbitrate certain salary grievances. The sole issue before us is the propriety of that dismissal.

This dispute arose from a collective bargaining agreement (the agreement) entered into on July 1, 1981, between Local 3236 of the Illinois Federation of State Office Educators, IFT-AFT, AFL-CIO (the Federation) and the Illinois State Board of Education (the Board), which provided for an 8% increase in annual salary effective July 1, 1982. According to plaintiffs’ complaint, the Board notified the Federation in January of 1982 that because of expected decreases in governmental funding for education, it would be necessary to lay off several Federation members. In order to avert the impending layoffs, the Federation and the Board entered into a supplemental agreement on June 24,1982, which provided in relevant part:

“A. The Federation agrees to postpone the scheduled 8% increase due July 1, 1982.
B. Management agrees to defer all current layoff notices for bargaining unit members.
C. Once the final appropriations amount is law and the first priority of eliminating layoffs of bargaining unit personnel is accomplished, additional available and useable personal service funds will be committed to salary increases to a maximum of 8%.
D. Management further agrees that once the final appropriation amount is law and layoffs have been eliminated, one (1) additional negotiation session will be scheduled (no more than eight hours of bargaining during a twenty-four hour period) for the sole purpose of reviewing and identifying useable and available resources in order to implement item C.”

Sometime thereafter, the personal services appropriation became final, and the Board implemented a 2.2% salary increase. Plaintiffs, asserting that the appropriation contained sufficient funds to implement a greater increase, filed the following grievance:

“In accordance with Article 20, Grievances, of the AGREEMENT BETWEEN THE ILLINOIS STATE BOARD OF EDUCATION AND THE ILLINOIS FEDERATION OF STATE OFFICE EDUCATORS, I am filing the following grievance on behalf of myself and all bargaining unit members:
That the Employer (management) has failed to comply with Section I, C and I, D of the contract as it was amended as well as Article 27, Salary, and Article 28, Salary Schedule, by failing to commit available and useable resources to increase salaries to a maximum of 8 percent in addition to implementing step increases when and where appropriate.
Whereas, the General Assembly has appropriated adequate funds and the Governor has signed into law these appropriations enabling management to comply fully with Section I, C of the contract as amended, I am requesting that all appropriated step increases and across the board raises of 8 percent be implemented immediately retroactive to July 1,1982.”

Plaintiffs allege in their complaint that they followed the five-step grievance procedure set forth in the agreement, and that their grievance was denied at each step. They then demanded that the matter be submitted to arbitration pursuant ito article 20 of the agreement, which provides in relevant part:

“Section 1. A grievance shall mean a dispute or difference of opinion raised by an employee against the Employer involving the meaning, interpretation, or application of the specific provisions of this Agreement.
* * *
Section 4. If the grievance is not settled in accordance with [5-step procedure], the Federation may refer the grievance to arbitration within ten (10) weekdays after receipt of the Superintendent’s answer in Step 5.
* * *
Section 5. The arbitrator shall have no right to amend, modify, nullify, ignore, add to, or subtract from the provisions of this Agreement. *** The award shall be based solely upon his/her interpretation of the meaning or application of the specific terms of this Agreement to the facts of the grievance submitted. *** The award shall be binding on the parties.”

Defendants refused to submit the matter to arbitration, and plaintiffs brought the instant action on December 27, 1982, seeking a declaration of the parties’ rights and an order directing defendants to comply with the demand for arbitration.

Defendants filed a motion to dismiss, alleging that the Board is an agency of the State of Illinois; that the individual defendants are officers of the Board, sued in their official capacities; that the complaint presented a claim founded upon a contract; and that the matter was therefore within the exclusive jurisdiction of the Illinois Court of Claims. The complaint was dismissed on May 14, 1983, without prejudice to plaintiffs’ right to file a claim with the Illinois Court of Claims. Plaintiffs’ motion to reconsider was denied, and this appeal followed.

Opinion

Plaintiffs acknowledge that the legislature has provided for limited sovereign immunity in section 1 of “An Act in relation to immunity for the State of Illinois” (the immunity statute), which states that “[ejxcept as provided in ‘An Act to create the Court of Claims ***’ the State of Illinois shall not be made a defendant or party in any court.” (Ill. Rev. Stat. 1981, ch. 127, par. 801.) It is their position, however, that the immunity statute is inapplicable here because (a) this action is not one against the State, (b) immunity has been waived, and (c) a suit to compel arbitration is not within the exclusive jurisdiction of the Illinois Court of Claims.

With regard to plaintiffs’ first argument, the question whether the State is a party for purposes of the immunity statute is determined by the issues involved and the relief sought. (Sass v. Kramer (1978), 72 Ill. 2d 485, 381 N.E.2d 975.) Thus, it has been stated that, even where the State is not a named party, an action “may be deemed a suit against the State if it would serve to control the action of the State or subject the State to liability” (Board of Education v. Cronin (1979), 69 Ill. App. 3d 472, 474, 388 N.E.2d 72, 74), but an action to enjoin an officer of the State from acting in excess of his delegated authority (see, e.g., Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 370 N.E.2d 223) or in abuse of his discretion (see, e.g., Houseknecht v. Zagel (1983), 112 Ill. App. 3d 284, 445 N.E.2d 402) or an action to compel him to perform a clear statutory duty (see, e.g., Board of Education v. Cronin ) is a suit against the officer, not against the State, and therefore are exceptions to the immunity statute.

In the case before us, plaintiffs maintain that the action is not against the State, but against the named defendants to compel them to perform a legal duty. They posit that defendants’ exercise of their authority to enter into a collective bargaining agreement created a legal duty on their part to comply with the arbitration clause contained therein, and that this duty is enforceable in the circuit court as provided by section 2 of the Uniform Arbitration Act. (Ill. Rev. Stat. 1981, ch. 10, par. 102.) Thus, plaintiffs seek to bring this action within the above-noted exceptions by placing the label “legal duty” on what is clearly a contractual obligation arising from the agreement, asserting that there is no difference between a contractual duty and the statutory duty enforced in Board of Education v. Cronin.

Initially, we note that dismissal as to the defendant Board was proper because it is a department of the State, and it has been held that where the named defendant is such a department the suit is one against the State and may not be maintained in any court except as provided in the Court of Claims Act. (Gordon v. Department of Transportation (1982), 109 Ill. App. 3d 1071, 441 N.E.2d 904.) However, because an action to compel performance of a legal duty may be brought against the department officers rather than against the department as an entity (see Gordon v. Department of Transportation), we have considered plaintiffs’ arguments with regard to the three individual defendants named in their official capacities as officers of the Board to determine whether, as plaintiffs assert, an action to require those officers to comply with a contractual obligation is the equivalent of an action to compel performance of a statutory duty. Plaintiffs have not cited, nor has our own research discovered, any case so holding, and we do not agree with plaintiffs that an action to enforce the terms of a contract is within the exception to the immunity statute allowing suits against State officers to compel compliance with a statutorily mandated duty. If we were to accept plaintiffs’ position, we would render meaningless section 8(b) of the Court of Claims Act, which provides that the Illinois Court of Claims “shall have exclusive jurisdiction to hear and determine *** all claims against the state founded upon any contract entered into with the State of Illinois.” (Ill. Rev. Stat. 1981, ch. 37, par. 439.8(b).) Moreover, under plaintiffs’ theory, every time a State official signed a contract, all of its provisions would become enforceable in the circuit court under the guise of “compelling” the official to “perform a legal duty.” This result would be untenable because the State, which can act only through its agents, would then have no immunity against any breach of contract claim.

Plaintiffs posit that their action is an exception for the additional reason that it does not involve a claim for money. However, the Court of Claims Act is not limited to money claims — it encompasses all claims against the State founded upon a contract, and thus the the seminal question here is not what types of claims are within the Court of Claims Act, but whether the instant action is against the State rather than against the individual officers. These officers entered into a contract on behalf of the State, and it is our view that plaintiffs’ action seeks to control the actions of the State in performing that contract by controlling the actions of these officers. Therefore, it is our view that the present action is a suit against the State for purposes of the immunity statute. See Board of Education v. Cronin (1979), 69 Ill. App. 3d 472, 474, 388 N.E.2d 72, 74-75.

Plaintiffs also argue that by entering into this contract, the State has waived the immunity statute and is therefore subject to the Uniform Arbitration Act. A similar argument was rejected recently in S. J. Groves & Sons Co. v. Illinois (1982), 93 Ill. 2d 397, 444 N.E.2d 131, where the plaintiff sought to bring a breach of contract action against the State in the circuit court, arguing that by authorizing the State to enter into contracts, the General Assembly consented to be sued thereon. The supreme court held that the action was properly dismissed, noting:

“Consent to be sued cannot be implied when there is an express statutory provision to the contrary. Whether the State is liable on a particular contract is a different question from whether the State is immune from being sued by an aggrieved party on that contract.” (93 Ill. 2d 397, 404, 444 N.E.2d 131, 134.)

Thus, the authorization to contract does not, as plaintiffs suggest, imply a consent to be sued in the circuit court.

Furthermore, it appears that neither the Board nor the individual officers named herein had the authority to waive the State’s immunity. In J.L. Simmons Co. v. Capital Development Board (1981), 98 Ill. App. 3d 445, 424 N.E.2d 821, the plaintiff demanded arbitration under a contract providing therefor, but the defendant, an agency of the State, refused to participate. The arbitrator found for the plaintiff, who then brought an action in the circuit court to enforce the award, arguing that by virtue of its contract the defendant had waived the right to have the action decided by the Illinois Court of Claims. This court held:

“The State can consent to suit, but only through the affirmative action of the General Assembly. [Citations.] An officer or agency of the State does not have the authority to waive laws that are for the benefit of this State. [Citation.] Thus, this cause must be brought in the Court of Claims despite the Board’s apparent agreement to subject any contract disputes to arbitration.” (98 Ill. App. 3d 445, 447, 424 N.E.2d 821, 822-23.)

Similar reasoning was used recently in People v. Patrick J. Gorman Consultants, Inc. (1982), 111 Ill. App. 3d 729, 444 N.E.2d 776. There, the Attorney General filed charges against the defendant for violation of a statute, and the defendant counterclaimed against the State for damages, alleging that the action was tortiously brought and in violation of the Federal Civil Rights Act. The trial court dismissed the counterclaim, finding that the State was immune from suit. On appeal, the defendant argued that the Attorney General waived the State’s sovereign immunity by filing suit against it and, in rejecting that argument, we held that “only the General Assembly, and not the Attorney General, can determine when claims against the State will be allowed. [Citations.] And the legislature has determined that sovereign immunity is waived only when suits against the State are brought pursuant to the Court of Claims Act.” (Ill Ill. App. 3d 729, 731, 444 N.E.2d 776, 778.) Based on the foregoing, it is our view that defendants had no authority to waive the State’s sovereign immunity by entering into an agreement providing for arbitration, and we therefore reject plaintiff’s argument to the contrary.

Plaintiffs further contend that this action is not within the exclusive jurisdiction of the Illinois Court of Claims, maintaining that there is no authority for the proposition that the Illinois Court of Claims has the power to grant the relief requested, and that an action to compel arbitration must be treated differently from other contract actions because of the strong public policy favoring the resolution of disputes through arbitration.

We have found no support for plaintiffs’ assertion that the Illinois Court of Claims may decide only monetary claims based on contracts and, as noted above, there is no such limitation expressed in the Court of Claims Act. Furthermore, we fail to see how the policy favoring arbitration is better served by an order of the circuit court compelling arbitration than by an order of the Illinois Court of Claims granting the same relief. However, we need not decide here what precise powers are vested in the Illinois Court of Claims regarding contracts, for underlying plaintiffs’ arguments is the erroneous assumption that jurisdiction in this case may be established by default; i.e., if the Hlinois Court of Claims does not have exclusive jurisdiction, then the circuit court must have jurisdiction. The Hlinois Constitution of 1970 empowered the General Assembly to determine the parameters of the sovereign immunity doctrine within this State. (Ill. Const. 1970, art. XIII, sec. 4.) It has exercised that authority through enactment of the immunity statute and specifically provided therein that the State may not be made a defendant or party in any court except as provided in the Court of Claims Act. (Ill. Rev. Stat. 1981, ch. 127, par. 801.) Thus, we must look to the Court of Claims Act to determine whether the General Assembly has made any provision for the maintenance of this action in the circuit court (Sass v. Kramer (1978), 72 Ill. 2d 485, 381 N.E.2d 975), for it must be brought pursuant thereto or not at all. We have examined the provisions of that Act and found nothing therein which grants jurisdiction of this matter to the circuit court. Therefore, we believe that plaintiffs’ only remedy is an action before the Illinois Court of Claims pursuant to its jurisdiction over contractual claims.

For the foregoing reasons, the order of the trial court is affirmed.

Affirmed.

LORENZ and WILSON, JJ., concur.


author: JUSTICE STAMOS

text:
    TAYSIR A. YASIN, Plaintiff-Appellant, v. JANE BYRNE, Mayor of the City of Chicago, et al., Defendants-Appellees.
    First District (2nd Division)
    No. 82—2938
    Opinion filed January 17, 1984.

      Freeman, Atkins & Coleman, Ltd., of Chicago (John L. Gubbins and Eugene J. Schiltz, of counsel), for appellant.
    James D. Montgomery, Acting Corporation Counsel, of Chicago (Jerome A. Siegan and Maureen Kelly Ivory, Assistant Corporation Counsel, of counsel), for appellees.
   JUSTICE STAMOS

delivered the opinion of the court:

This action was brought by plaintiff Taysir A. Yasin, seeking a writ of mandamus to compel several officials of the city of Chicago to issue to him tax emblems for two electronic video games. The city had refused to issue emblems for the games on the ground that they were illegal gambling devices under section 28 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 28 — 2). The two principal issues addressed at trial were whether any skill is involved in playing the video games and whether the games could be altered to permit their use as gambling devices. The trial court issued a writ of mandamus as to one of the games but refused to issue the requested writ as to the other. Defendants appealed and plaintiff cross-appealed. Subsequently, defendants voluntarily dismissed their appeal, and only plaintiffs cross-appeal remains before this court.

In December 1981, plaintiff Yasin applied for and received an automatic amusement device operator’s license from the city of Chicago. Plaintiff had purchased several of each of two coin-operated video card games produced by Computer Kinetics Corporation, a California company, with the intention of installing the games in public places in Chicago. The machines purchased by plaintiff were “Monte Carlo Blackjack,” a video game which simulates the card game of blackjack, and “Draw 5,” a video game which simulates the card game of draw poker. Plaintiff then applied for city tax emblems for the machines pursuant to chapter 104.2 of the Municipal Code of the city of Chicago, and submitted examples of each game with its owner’s manual to the Mayor’s License Commission for inspection. Plaintiff was subsequently advised by mail that this application for tax emblems had been denied. No reasons were given by the Commission for the denial.

Plaintiff filed suit in the circuit court of Cook County, seeking a writ of mandamus compelling the issuance of tax emblems for the machines. Defendants’ answer denied the material allegations of plaintiff’s complaint and raised no affirmative defenses. Plaintiff made an oral motion to strike defendants’ answer as insufficient, but withdrew the motion when the court refused to let plaintiff present his out-of-town witnesses at that time. Both parties moved for summary judgment. Both motions were denied and the case went to trial on the issue of whether the machines were illegal gambling devices under section 28 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 28 — 2) or whether they could be altered to permit their use as gambling devices.

At trial, expert testimony was heard as to several characteristics of plaintiff’s machines. Richard Calverley, president of Computer Kinetics, testified that the machines were programmed to simulate exactly the card games of blackjack and draw poker; that skill is required to successfully operate the machines; and that the machines do not pay out, return coins, give free games or store point totals and cannot be modified or altered to do so. Mr. Calverley also testified that Computer Kinetics games are not comparable to or competitive with games that pay out or return coins. In addition, Mr. Calverley testified that a single-player version of “Monte Carlo Blackjack,” called “Vega 21,” had been approved for use in Illinois by the Attorney General of Illinois.

Ehud Kalai, an expert in applied mathematics and game theory, testified that skill is required to play blackjack successfully, and that greater skill is required in playing draw poker. Mr. Kalai operated the “Monte Carlo Blackjack” game and demonstrated to the court the element of skill involved. He also discussed the skill and strategy required to successfully play blackjack and draw poker. The “Draw 5” game was not demonstrated to the court.

Several police officers testified as to how various mechanical devices are used for gambling purposes and an expert in gambling casino auditing practices testified as to the infeasibility of using Computer Kinetics machines for gambling purposes.

After considering briefs and hearing closing arguments, the trial court found that “Monte Carlo Blackjack” is a game requiring skill and therefore that the city of Chicago improperly denied the amusement license for that game. The court ordered that a writ issue directing the city to issue tax emblems for plaintiff’s “Monte Carlo Blackjack” machines. The court held that “Draw 5” is a game of chance and denied the writ of mandamus as to that machine. Plaintiff appeals from this order.

Plaintiff first contends that the city waived any defenses to his petition by failing to assert in its answer that the tax stamps had been denied because plaintiff’s machines were illegal gambling devices.

It is well settled that in a mandamus proceeding the burden of proof is on the petitioner to establish a clear legal right to the relief sought. (People ex rel. Donnelly v. McHenry County Sheriffs Department Merit Com. (1980), 83 Ill. App. 3d 957, 958, 404 N.E.2d 1033.) Plaintiff relies upon the cases of People ex rel. Mercantile National Bank v. City of Chicago (1941), 377 Ill. 573, 37 N.E.2d 151, and City of Chicago v. People ex rel. Union Trust Co. (1905), 215 Ill. 235, 74 N.E. 137, for the position that the city’s failure to raise defenses in its answer bars any defense. However, this reliance is misplaced. People ex rel. Mercantile National Bank and People ex rel. Union Trust Co. involved mandamus proceedings in which the petitioner sought payment of outstanding judgments from the city. In each case the city admitted in its answer that it owed on the judgments. The city therefore had no justification for its failure to pay the judgments and the trial court properly entered the writ ordering payment. In each case, the material allegations of the petition were not denied by the city and these allegations were therefore considered to be true. See People ex rel. Shell Oil Co. v. City of Chicago (1972), 9 Ill. App. 3d 242, 292 N.E.2d 84.

In contrast is the instant case, in which the city’s answer denied all the material allegations of the petition. The burden therefore remained upon plaintiff to establish a clear legal right to a writ of mandamus. (See School Directors v. People (1902), 106 Ill. App. 620, 622-23.) The parties proceeded to trial on the merits on these pleadings. We find that plaintiff’s contention that the city waived all defenses by failing to raise in its answer reasons for its denial of the tax emblems is without merit.

Plaintiff next contends that the trial court erred in denying the writ of mandamus as to his “Draw 5” machines.

The only issue at trial was whether plaintiff’s machines were illegal gambling devices as defined in section 28 — 2 of the Criminal Code of 1961. (Ill. Rev. Stat. 1979, ch. 38, par. 28 — 2.) The statute provides, in part, that its definition of a “gambling device” does not include

“(1) A coin-in-the slot operated mechanical device played for amusement which rewards the player with the right to replay such mechanical device, which device is so constructed or devised as to make such result of the operation thereof depend in part upon the skill of the player and which returns to the player thereof no money, property or right to receive money or property.” Ill. Rev. Stat. 1979, ch. 38, par. 28 — 2(a)(1).

This statutory exception has been interpreted to include pinball machines (People v. One Mechanical Device (1957), 11 Ill. 2d 151, 155, 142 N.E.2d 98; White v. Ogilvie (1964), 51 Ill. App. 2d 181, 188, 201 N.E.2d 122), and to exclude slot machines. Plaintiff argues that his machines fall within this statutory exception because they require skill to operate successfully and do not return money.

The testimony at trial established that both “Monte Carlo Blackjack” and “Draw 5” exactly simulate the card games for which they are respectively named. The machines are programmed to deal a fixed number of hands, five in the case of “Monte Carlo Blackjack,” and to provide the player with a number of points with which to bet. The number of points initially provided depends on the number of coins inserted into the machine. A winning player is rewarded with extra hands in addition to the points won. The maximum number of extra hands which can be won with the “Monte Carlo Blackjack” machine is three. The testimony also established that these machines are not well suited to use in gambling enterprises because of their inability to return coins to winning players or to reliably keep track of point totals. In addition, experts testified as to the element of skill involved in the card games of blackjack and draw poker and this element of skill was demonstrated to the court through the operation of the “Monte Carlo Blackjack” machine. Expert testimony established that the elements of skill involved in the card games of blackjack and draw poker were also present in “Monte Carlo Blackjack” and “Draw 5.”

After this evidence was heard, the trial court found that “Monte Carlo Blackjack” was a game requiring skill, as defined in the statutory exception, but that “Draw 5” was a game of chance and was therefore an illegal gambling device.

We find that the decision of the trial court was not supported by the evidence and that the trial court erred in holding that “Draw 5” is an illegal gambling device. The record contains sufficient evidence to clearly show that the “Draw 5” machine comes within the statutory exception to section 28 — 2. The evidence shows that “Draw 5” exactly simulates the card game of draw poker, that draw poker is a game requiring skill and that the “Draw 5” machine does not return money, property or the right to receive money or property and cannot be altered or modified to do so. While the “Draw 5” machine was not demonstrated to the trial court, the uncontradicted testimony of the various experts at trial established that the “Draw 5” machine is nearly identical mechanically to the “Monte Carlo Blackjack” game and would in fact require a greater degree of skill to play. The evidence does not support the distinction made by the trial court between the two machines. The court should have concluded that this evidence shows that the “Draw 5” machine falls within the statutory exception to the definition of a gambling device and that the city had no basis for denying tax emblems for plaintiff’s “Draw 5” machines. It is clear that the trial court erred in denying the requested writ of mandamus as to these machines.

The decision of the circuit court denying the requested writ as to the “Draw 5” machine is reversed and the cause is remanded with directions to enter such writ.

Reversed and remanded.

HARTMAN, P.J., and DOWNING, J., concur.


author: JUSTICE DOWNING

text:
    FRANK LOIZZO, Plaintiff-Appellant, v. ST. FRANCIS HOSPITAL et al., Defendants-Appellees.
    First District (2nd Division)
    No. 82—2733
    Opinion filed January 17, 1984.

      Smith & Munson, of Chicago, for appellant.
    James G. Meyer, of Hogan, McNulty & Meyer, and Stanley J. Davidson, Douglas H. Momeyer, and Robert L. Martier, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, and Robert Marc Chemers, of Pretzel & Stouffer, Chartered, and Francis D. Morrissey, Thomas R. Nelson, Charles B. Lewis, and Mark L. Karasik, all of Baker & McKenzie, and Williams P. Dorr, Hugh C. Griffin, and William D. Frazier, all of Lord, Bissell & Brook, and Richard C. Bartelt and Kathy Pinkstaff Saxton, both of Wildman, Harrold, Allen & Dixon, all of Chicago, for appellees.
   JUSTICE DOWNING

delivered the opinion of the court:

Plaintiff, Frank Loizzo, brought this action in the circuit court of Cook County to recover damages for personal injuries allegedly occasioned by a catheter which was negligently left in his body following surgery. All of the defendants had rendered medical care to the plaintiff for treatment of his heart condition, but they were not all involved concurrently. Plaintiff filed a complaint, which was later amended to include all of the defendants, under the res ipsa loquitur doctrine. The trial court, finding that the requisite element of exclusive control of the catheter had not been established, granted each of defendants’ motions for summary judgment.

On March 30, 1977, while preparing to perform a surgical procedure known as a left and right cardiac catheterization with coronary angiogram at defendant St. Francis Hospital in Evanston, defendants Dr. Edward Pinsel and Dr. A. Jerald Rothenberg discovered a 12-inch size 6 French catheter in plaintiffs body. The catheter extended from the iliac vein into one of the chambers of plaintiff’s heart. The plaintiff underwent a thoractomy on April 1,1977, to remove the catheter.

Plaintiff had been previously hospitalized at defendant Northwest Community Hospital on December 16, 1976, December 25, 1976, and March 21, 1977, for treatment of severe chest pain. During these hospitalizations he was under the care of defendants Dr. Miles Lynch, Dr. John L. Lynch, and Dr. Joseph E. Frangen His condition was diagnosed as a myocardial infarction and coronary insufficiency. On the latter two occasions plaintiff was admitted through the emergency room of the hospital which was staffed by physician-employees of defendant Medical Emergency Services Associates (MESA).

The amended complaint, stated in five counts, alleges that each of the defendants was guilty of one or more of the following negligent acts or omissions:

“(a) Caused a certain radio-opaque [sic] catheter, size 6 French, approximately 12 inches long to be placed into the plaintiff’s body; whereupon, it was not removed;
(b) Caused the aforesaid catheter to become broken and displaced;
(c) Allowed a portion of the catheter to remain in the plaintiff’s body after his discharge from the hospital;
(d) Used the aforesaid catheter in a manner not intended by its manufacturer;
(e) Was otherwise careless and negligent.”

Each of the defendants denied placing the catheter in the plaintiff’s body and denied knowledge of the identity of the person or persons who inserted the catheter. The doctors Lynch and Franger stated that they did not place any catheters in plaintiff’s body. Doctors Pinsel and Rothenberg inserted several catheters, but claimed that they had never used the type of catheter they found in plaintiff. Hospital personnel from each of the defendant hospitals submitted affidavits asserting that the catheters of the type found were never purchased or used by their employers. Doctors Leslie Webber and Lawrence Cohen, MESA’s employees who treated plaintiff at Northwest Community Hospital’s emergency room, claimed not to have inserted any catheters into plaintiff. Although plaintiff was billed by Northwest Community Hospital for a central venous pressure (CVP) monometer unit, Dr. Miles Lynch asserted that plaintiff’s treatment did not include a CVP monometer unit. There was further evidence that the catheter in a CVP monometer unit is small and clear, unlike the catheter found in plaintiff’s body.

The amended complaint does not allege that plaintiff’s hospitalizations at St. Francis and Northwest Community hospitals were the only occasions in which he was treated at a hospital or in which he underwent invasive procedures. To the contrary, plaintiff had been treated previously at Norwegian American Hospital for a bladder ailment. Plaintiff’s answers to defendants’ interrogatories also reveal that he was examined or treated by seven other physicians in the 15-year period prior to the discovery of the size 6 French catheter. His answers fail to disclose, as requested by the interrogatories, the reasons for each of these consultations.

Plaintiff testified in his deposition that only clear tubing was utilized at Northwest Community Hospital, that he was unaware of MESA personnel inserting any catheters into his body, and that paramedics may have inserted an I.V. catheter on the way to Northwest Community’s emergency room. (Other testimony indicated that, if the paramedics had inserted an I.V. catheter, it would have been a size 18 or size 20 catheter approximately IV2 inches long.) Plaintiff proffered no evidence contrary to the contentions of the various defendants.

Following discovery, each defendant moved for summary judgment based upon plaintiff’s failure to show when, where, or by whom he was injured and the defendants’ contentions that they had not caused the catheter to be placed in plaintiff’s body. The trial court, finding that the res ipsa loquitur doctrine raised an inference of negligence, thereby creating a factual issue to be resolved at trial, denied the motions.

Immediately prior to trial, and shortly after the supreme court’s decision in Spidle v. Steward (1980), 79 Ill. 2d 1, 402 N.E.2d 216, requiring a trial court to determine as a matter of law whether the res ipsa loquitur doctrine is applicable to the circumstances alleged by the plaintiff, the defendants renewed their motions for summary judgment. The trial court, determining that the plaintiff had failed to show the requisite exclusiveness of control of the instrumentality causing plaintiff’s injuries, granted summary judgment in favor of each of the defendants. Plaintiff’s motion for rehearing was denied. Plaintiff brings this appeal arguing that summary judgment was inappropriate since the issue of which of the defendants is (or are) responsible for the placement and failure to remove the catheter found in his body is a question of fact. Additionally, plaintiff contends that sufficient control of the catheter was established to invoke the doctrine of res ipsa loquitur.

I

The doctrine of res ipsa loquitur, actually a rule of evidence (J. Henderson & R Pearson, The Torts Process 365 (1975); see also 3 J. Dooley, Modern Tort Law sec. 48.22, at 351 (1977)), permits an inference of negligence from circumstantial evidence when direct evidence of the cause of an injury is primarily within the knowledge and control of the defendant. (Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 449, 207 N.E.2d 305.) Application of the res ipsa loquitur doctrine requires a showing that plaintiff’s injury (1) resulted from an occurrence which does not ordinarily occur in the absence of negligence, (2) was caused by an instrumentality or agency under the exclusive management or control of the defendant, and (3) occurred under circumstances indicating the injury was not due to any voluntary act or negligence on the part of the plaintiff. (Spidle v. Steward (1980), 79 Ill. 2d 1, 402 N.E.2d 216; 3 J. Dooley, Modern Tort Law sec. 48.02 (1977); see E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 302.2 (1979).) There is no question that the first and third elements are satisfied here.

The trial court granted summary judgment for the reason that exclusive control was not shown. The reason for the exclusive control requirement is that it must appear that the negligence of which the doctrine warrants an inference is probably that of defendant and not of another. (2 F. Harper & F. James, Torts sec. 19.7, at 1085 (1956).) Courts generally do not apply the exclusive control requirement as it is literally stated. (2 F. Harper & F. James, Torts sec. 19.7, at 1086 (1956); see, e.g., 3 J. Dooley, Modern Tort Law sec. 48.05 (1977) and 1 Speiser, Medical Malpractice sec. 4:10, at 151 (1972).) As Prosser reported,

“ ‘Control’ if it is not to be pernicious and misleading, must be a very flexible term. It must be enough that the defendant has the right or power of control, and the opportunity to exercise it ***.” (Prosser, Torts sec. 39, at 220 (4th ed. 1971).)

“The requirement as it is generally applied is more accurately stated as one that the evidence must afford a rational basis for concluding that the cause of the accident was probably ‘such that the defendant would be responsible for any negligence connected with it.’ ” 2 F. Harper & F. James, Torts sec. 19.7, at 1086 (1956), quoting from Prosser, Res Ipsa Loquitur in California, 37 Calif. L. Rev. 183, 201 (1949).

Plaintiff, citing Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 207 N.E.2d 305, and Martino v. Barra (1973), 10 Ill. App. 3d 97, 293 N.E.2d 745, contends that the instrumentality need not be in the exclusive control of one or more of the defendants. In Metz, although two separate entities may have had access to the injurious instrumentality, the court noted that the defendant at all times was solely responsible for the maintenance of the instrumentality causing the injury. Due to the nature of the accident, it was most likely caused by the defendant’s negligence. In Martino, the defendant had exclusive control of the rear wheels of a cement-mixer truck while repairing a flat tire. The wheels apparently were not attached properly to the rear axle while defendant was in control of the wheels. There was no evidence from which to impute negligence to any other party.

Plaintiff argues that the flexible standard of control announced in Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 443 N.E.2d 569, governs this action. Lynch concerned damages to the defendant’s gearbox which the defendant’s employees helped the plaintiff repair. Our supreme court noted that comment g to section 328D of the Restatement explains that the key question regarding control is whether the probable cause for the harm is one which the defendant was under a duty to the plaintiff to anticipate or guard against. (See Restatement (Second) of Torts sec. 328D, comment g, at 161 (1965).) In adopting a flexible standard of control, the court distinguished the situation involved there from “a multiple-defendant case like Kolakowski [v. Voris (1980), 83 Ill. 2d 388, 415 N.E.2d 397,] or Ybarra v. Spangard (1944), 25 Cal. 2d 486, 154 P.2d 687, where a joint-control theory was applied to hold defendants liable.” (Lynch v. Precision Machine Shop, Ltd. (1983), 93 Ill. 2d 266, 274-75.) The court’s holding was premised upon the plaintiff’s contractual obligation as well as the degree of supervision, inspection and control over the gearbox and defendant’s employees actually exerted by Lynch at the time of the probable negligence. Lynch is distinguishable as not being a multiple defendant case. Too, although not requiring “exclusive” control of the gearbox by the plaintiff, the Lynch opinion noted that the plaintiff at all times had responsibility for the repairs undertaken and supervised the actions of defendant’s employees. That is a far cry from the situation here where the defendants named in each count of the complaint acted independently from each other.

Ybarra v. Spangard (1944), 25 Cal. 2d 486, 154 P.2d 687, cited by the plaintiff, is also distinguishable. In Ybarra, the plaintiff was injured during a surgical procedure while unconscious. The California Supreme Court held “that where a plaintiff received unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct.” (25 Cal. 2d 486, 494, 154 P.2d 687, 691.) Different from the situation in Ybarra, the plaintiff here has not named as defendants all of the entities who might have caused his injuries. This is fatal to his action since “[t]he plaintiff [must] eliminate the possibility that the accident was caused by someone other than any defendant.” (3 J. Dooley, Modern Tort Law sec. 48.19, at 347 (1977); see also Spannaus v. Otolaryngology Clinic (1976), 308 Minn. 334, 242 N.W.2d 594.) Too, the situation in Ybarra concerned a single surgical procedure at a known time and location. Because all of the multiple defendants were present during Ybarra’s surgery, they each had superior knowledge as to the cause of his injuries. Their shared, joint, and concurrent control was sufficient to raise the inference and require them to dispel the prim a facie case of their negligence. (Accord, Kolakowski v. Voris (1980), 83 Ill. 2d 388, 396, 415 N.E.2d 397 (concurrent control situation where “the cause [of plaintiff’s injury] was within the exclusive knowledge of the defendants”); see also Drewick v. Interstate Terminals, Inc. (1969), 42 Ill. 2d 345, 247 N.E.2d 877.) Since the situation here differs from that in Ybarra, the California Supreme Court’s limitation in Ybarra becomes extremely significant:

“We do not at this time undertake to state the extent to which the reasoning of this case may be applied to other situations in which the doctrine of res ipsa loquitur is invoked.” Ybarra v. Spangard (1944), 25 Cal. 2d 486, 494,154 P.2d 687, 691.

The trial court expressed its opinion that the present situation went beyond that found in Ybarra, and plaintiff’s counsel agreed. At the hearing on defendant’s motion for summary judgment, plaintiff’s counsel made the following comments:

“There is no question that I can’t prove that any of these defendants had exclusive control individually of the instrumentality that caused the injury in this case. That’s why they are all here.
* * *
If I have to prove that one of these people had exclusive control, I can’t do it. I couldn’t do it five years ago, and after discovery, I can’t do it today. But what I can prove is one of them had control of this instrumentality while this man was under their care.”

This last statement by plaintiff’s counsel is not accurate. Since the catheter may have been inserted by a nonnamed party, plaintiff cannot prove that any of the defendants had any control over the instrumentality.

“It is never enough for the plaintiff to prove merely that he has been injured by the negligence of someone unidentified. Even though there is beyond all possible doubt negligence in the air, it is still necessary to bring it home to the defendant. On this too the plaintiff has the burden of proof ***.” (Prosser, Torts sec. 39, at 218 (4th ed. 1971); see also Drewick v. Interstate Terminals, Inc. (1969), 42 Ill. 2d 345, 247 N.E.2d 877; 1 Speiser, Medical Malpractice sec. 2:10, at 49 (1972); Restatement (Second) of Torts 328D, comment f, at 160 (1965); 3 J. Dooley, Modern Tort Law sec. 48.20, at 347 (1977).)

Each of the defendants affirmatively asserted and established that they had no control of the catheter and no knowledge concerning its placement in plaintiff’s body. Plaintiff failed to present any evidence to contradict the defendants’ assertions which must be taken as true. Stringer v. Zacheis (1982), 105 Ill. App. 3d 521, 434 N.E.2d 50; see also Prather v. Decatur Memorial Hospital (1981), 95 Ill. App. 3d 470, 420 N.E.2d 810.

In cases of medical malpractice against multiple defendants the doctrine has been held applicable where the defendants were in joint control of the agency causing the injury. Conversely, the doctrine has been held not applicable against multiple defendants where it was not shown that they were in joint or exclusive control of the injuring agency. (2 Speiser, Medical Malpractice sec. 24:6 (1972), citing Shutts v. Siehl (1959), 109 Ohio App. 145, 10 Ohio Op. 2d 363, 164 N.E.2d 443, and Meyer v. St. Paul-Mercury Indemnity Co. (La. App. 1952), 61 So. 2d 901, affd (1953), 225 La. 618, 73 So. 2d 781.) Too,

“[I]f the negligence can be attributed to any one of several persons, and there is no principle which would make all of them liable in solido, there is no basis on which the case can be submitted to the jury under the res ipsa loquitur doctrine.
* * *
It has been recognized that, as a general proposition, where there are multiple defendants, any one of whom might have been at fault, it is ordinarily not proper to say that any one had exclusive control of the instrumentality or that any one had or should have had exclusive knowledge as to how or why the accident occurred.” (1 Speiser, Medical Malpractice sec. 4:9 at 149-50 (1972).)

Similarly, the majority of courts have held that “[wjhenever the injury could have been caused by a person not a joint actor, or a person not in joint control of the patient, the theory is inapplicable.” (Note, The Application of Res Ipsa Loquitur in Medical Malpractice Cases, 60 Nw.U.L. Rev. 852, 870 (1966); see also Prosser, Torts sec. 39, at 221 (4th ed. 1971).) The defendants here, as shown, were not acting jointly with each other. The situation here involves different treatment by different entities at different times in different locations. Neither plaintiff nor the defendants have knowledge of the who, when, or where questions surrounding plaintiffs injury. Without knowledge of the event causing the injury, it cannot be said under the facts here that any medical personnel who treated plaintiff was more probably negligent than any other. (See Politakis v. Inland Steel Co. (1983), 118 Ill. App. 3d 249, 454 N.E.2d 811.) Further complicating the matter is the fact that the catheter may have been inserted by a nonnamed medical provider.

II

Summary judgment is appropriate where the pleadings, depositions, admissions, affidavits, and exhibits-submitted to the trial court reveal that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005(c); Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.) A mere allegation that there exists a genuine issue of material fact does not create such an issue. (Turner v. City of Chicago (1980), 91 Ill. App. 3d 931, 937, 415 N.E.2d 481.) Plaintiff is required to present some factual basis that would arguably entitle him to a judgment under the applicable theory of law. (Schoondyke v. Heil, Heil, Smart & Golee, Inc. (1980), 89 Ill. App. 3d 640, 643, 411 N.E.2d 1168.) Plaintiff has the affirmative duty, on the defendants’ motions for summary judgment, to bring forth all facts and evidence that he believed would satisfy his burden of proving the existence of a cognizable cause of action. (Coleman v. Verson Allsteel Press Co. (1978), 64 Ill. App. 3d 974, 382 N.E.2d 36.) Plaintiff has failed to meet his burden.

Plaintiff contends that which of the defendants inserted and failed to remove the catheter is a question of facTfor the jury’s determination. His contention prematurely assumes that one or more of the defendants was in fact negligent. This initial consideration was not brought out by the evidence. Moreover, it is for the trial court to determine in the first instance whether, as a matter of law, the doctrine is applicable to the circumstances involved. (Ill. Rev. Stat., 1982 Supp., ch. 110, par. 2 — 1113; Kolakowski v. Voris (1980), 83 Ill. 2d 388, 394, 415 N.E.2d 397; Walker v. Rumer (1978), 72 Ill. 2d 495, 500, 381 N.E.2d 689; Rinck v. Palos Hills Consolidated High School District No. 230 (1979), 82 Ill. App. 3d 856, 862, 403 N.E.2d 470.) If the trial court here had found the doctrine to be applicable, only then would the factual question concerning which of the defendants might be liable go to the jury.

Plaintiff cites Sanders v. Frost (1969), 112 Ill. App. 2d 234, 251 N.E.2d 105, and Stringer v. Zacheis (1982), 105 Ill. App. 3d 521, 434 N.E.2d 50, for the proposition that a court should be cautious to enter summary judgment in cases of medical malpractice because of the reluctance of members of the medical profession to testify against each other. We do not view that reluctance to be a problem here because of the unlikelihood that the defendants named in any one of the five counts of the complaint would have knowledge of the negligence of any of the other defendants. Moreover, plaintiff apparently made no attempt to submit the discovery testimony of any medical personnel other than the defendants to the trial court. No possible harm could have resulted from an alleged reluctance to testify if no attempt was made to obtain the testimony of those who are said to be averse.

Plaintiff’s complaint creates a situation whereby he throws his opponents into a pit while he sits above the fray, content to have the defendants fight it out among themselves. This position might not be so unpalatable if it were not for the fact that the defendants are effectively blind as to the source of plaintiff’s injury, for they were not present during each other’s treatment of the plaintiff. Too, the very real possibility that the “culprit” is not among them makes it impossible for the defendants to point to the negligent entity. The situation presented here is not suited to the doctrine of res ipsa loquitur.

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

Affirmed.

STAMOS and PERLIN, JJ., concur.