author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES CORRIGAN, Defendant-Appellant.
    Fourth District
    No. 4—84—0208
    Opinion filed January 7, 1985.

      Daniel D. Yuhas and Jane Raley, both of State Appellate Defender’s Office of Springfield, for appellant.
    Anthony B. Cameron, State’s Attorney, of Quincy (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

After jury trial, defendant was convicted of the offenses of residential burglary and burglary (Ill. Rev. Stat. 1983, ch. 38, pars. 19 — 3, 19 — 1(a)) and was sentenced to concurrent terms of 10 years’ and seven years’ imprisonment, respectively. Defendant appeals from the judgment of the circuit court of Adams County. We affirm.

Defendant raises two issues on appeal: (1) whether the police had probable cause to arrest him so the trial court properly denied a motion to quash his arrest and suppress evidence; and (2) whether the trial court abused its discretion in sentencing and punished him for exercising his right to a jury trial by considering its belief that he committed perjury at trial.

We first consider the trial court’s ruling on the motion to suppress, referring to the facts as necessary to the disposition. At about 7 p.m., on October 31, 1983, Paul Long parked his truck in the lot at the Travel Lodge Motel and walked toward its restaurant. He passed a 10-speed bike beside a tractor-trailer parked on the lot. On the other side of the trailer he saw a Buick Regal car with a broken window, a rock lying on the ground, and a man in the car going through the glove box. The man stood as he exited the car. Long called police, describing the man as a white male, six feet to six feet two inches tall, weighing about 165 pounds. When police arrived, the man and the 10-speed bike were gone. Quincy police officer Ronald Grant transmitted a description of the suspect as a white male, approximately 170 to 180 pounds, about six feet tall, riding a 10-speed bike. About 20 minutes later he received a call from Quincy auxiliary police officer Roberts and civil defense officer Frank at 10th and Maine.

At the hearing on the motion to suppress on December 27, 1983, officers Roberts and Frank testified they came into contact with defendant because of the car burglary suspect description. The officers said it was very cold that night, and defendant was the only person they saw riding a bicycle. They noted his intoxicated condition. Officer Roberts said that when he approached defendant, who was in a sitting position, he asked defendant to remove a screwdriver visible in his rear pocket and lay it on the planter next to him. Roberts said he did this for self-protection, as the screwdriver could be a weapon.

Officer Grant testified that when called to the scene by the officers, he talked to defendant for 10 minutes or less, and advised him he was extremely intoxicated and could be arrested for riding his bike in the street, referencing Illinois DUI law (Ill. Rev. Stat. 1983, ch. 95V2, par. 11 — 501(a)(2)), or for walking in the street, referencing section 11 — 1010 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1983, ch. 95^2, par. 11 — 1010). Grant said defendant had a strong odor of alcoholic beverages on his breath, his balance was poor, and his speech was slurred. Defendant thereafter rode his bicycle on the sidewalk to 11th Street, got off the bike and walked it across the intersection between 10th and 11th streets, and got back on the bike on the other side of the intersection and again rode on the sidewalk. Grant said he was aware at the time that he could have arrested defendant for riding his bike on the sidewalk. Grant drove his squad car down the street, pulled into a drive about half a block in front of defendant, who had crossed 11th Street, and stopped. Defendant rode down the sidewalk and ran into the side of the squad car. Grant then arrested defendant for violation of section 11 — 1010 of the Code and searched him on the street. The search disclosed a knife, a screwdriver, and the proceeds of a burglary, and led to the instant charges.

The court found probable cause existed at the time of the arrest, stating that when an officer who has probable cause to arrest for an offense mistakenly arrests an individual for another offense, it does not invalidate the lawfulness of a search carried out. The court believed the officer had probable cause to arrest defendant for operating a bicycle while intoxicated under section 11 — 501(a)(2) of the Code (DUI). The judge said the fact that the officer did not choose to advise defendant he was being arrested for DUI, but for unlawful pedestrian use of a roadway, was not dispositive, as the officer’s observation would have been sufficient to charge the specific offense of DUI. The judge found no evidence that defendant was violating the statute cited by the officer, and noted that the law does not say an intoxicated person cannot use a sidewalk, of which a crosswalk is an extension. The court upheld the arrest and search on the basis that probable cause existed for one or more other offenses.

On December 30, 1983, defendant filed a motion to reconsider. On January 5, 1984, the court heard evidence and argument on the motion. Officer Grant testified that prior to arresting defendant under section 11 — 1010, he had noted that defendant was riding the bike without a headlight. At the time of the arrest, the city ordinance prohibited operation of a bicycle on a sidewalk in the business district, and both the ordinance and the Code required use of a headlight on a bicycle operated at night.

The court affirmed its previous determination that probable cause existed, and found that the officer continued to have probable cause to arrest the defendant for an offense even if different from that articulated.

On appeal defendant argues that he could not, under the law submitted, be guilty of either illegal pedestrian use of the roadway or DUI, that the arresting officer was without probable cause as to either offense, and that his arrest was invalid and the trial court erred in denying his motion to suppress.

The standards applicable to probable cause determinations are well established and have been stated in People v. Robinson (1976), 62 Ill. 2d 273, 276-77, 342 N.E.2d 356, 358:

“There is probable cause [to arrest] when the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense. (People v. McCrimmon, 37 Ill. 2d 40, 43.) This court observed in People v. Jones, 31 Ill. 2d 42, 47, that '*** reasonable cause means something less than evidence which would result in a conviction, and it is also established that reasonable cause may be founded upon evidence that would not be admissible at trial.’
In considering whether probable cause existed, we stated in People v. Clay, 55 Ill. 2d 501, 504-05, ‘Whether or not probable cause for an arrest exists in a particular case depends upon the totality of the facts and circumstances known to the officers when the arrest was made. [Citations.] In deciding the question of probable cause in a particular case the courts deal with probabilities and are not disposed to be unduly technical. These probabilities are the factual and practical considerations of everyday life on which reasonable men, not legal technicians, act. Draper v. United, States, 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329; People v. Fiorito, 19 Ill. 2d 246.’ Also it is proper to recognize in judging whether there was probable cause that ‘[p]olice officers often must act upon a quick appraisal of the data before them, and the reasonableness of their conduct must be judged on the basis of their responsibility to prevent crime and to catch criminals.’ People v. Watkins, 19 Ill. 2d 11, 19.”

In People v. Watkins (1960), 19 Ill. 2d 11, 19, 166 N.E.2d 433, 437, the court stated that a search incident to arrest is authorized when reasonably necessary to protect the arresting officer from attack. (See Ill. Rev. Stat. 1983, ch. 38, par. 108 — 1.) We note the court further remarked that minor traffic offenses do not all, of themselves, raise the kind of inferences which justify searches in other cases. In People v. Moody (1983), 94 Ill. 2d 1, 10, 445 N.E.2d 275, 279, the court stated:

“The fourth amendment and the exclusionary rule guard against unreasonable searches and seizures, not against unreasonable beliefs per se. If, as explained in Brinegar v. United States [Brinegar v. United States (1949), 338 U.S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302], an arrest is to be termed ‘reasonable’ if a reasonable man in the arresting officer’s position would believe that the defendant had committed a crime, we do not understand how the fact that the officer himself did not so believe, or was uncertain as to what to believe, can change that. (See Klingler v. United States (8th Cir. 1969), 409 F.2d 299, 304, cert. denied (1969), 396 U.S. 859, 24 L. Ed. 2d 110, 90 S. Ct. 127.) The inquiry must focus on what was done and known by the police, not on what was believed, what the facts objectively viewed add up to, not what the officer on the scene believed they added up to. The latter approach would, of course, lead to differing conclusions based upon the experiences and response of a particular officer, while the former approach leads to the more uniform answer expected of the law.”

Also pertinent to the inquiry here, the court in People v. Kincy (1982), 106 Ill. App. 3d 250, 254, 435 N.E.2d 831, 834-35, cited by the State, stated:

“The test for determining the validity of the arrest is whether the officer had actual probable cause to arrest the defendant, not whether the officer articulated the correct basis for the arrest. (United States v. Lester (8th Cir. 1981), 647 F.2d 869, 873; United States v. Dunavan (6th Cir. 1973), 485 F.2d 201, 205; United States v. Saunders (5th Cir. 1973), 476 F.2d 5, 7; United States v. Carr (D. Conn. 1978), 445 F. Supp. 1383, 1387, aff'd (2d Cir. 1978), 584 F. 2d 612, cert. denied (1979), 440 U.S. 935, 59 L. Ed. 2d 494, 99 S. Ct. 280.) We agree that when an officer makes an arrest which is properly supported by probable cause to arrest for a certain offense neither his subjective reliance on an offense for which there is no probable cause, nor his verbal announcement of the wrong offense vitiates the arrest. (United States v. Saunders (5th Cir. 1973), 476 F. 2d 5, 7; see also People v. Moody (1981), 97 Ill. App. 3d 758, 766.) Therefore, if there was actual probable cause to arrest the defendant for aggravated assault, the arrest was valid regardless of the officer’s stated basis for the arrest.”

We agree that this is the analysis to be applied to probable cause determinations.

Further, a trial court’s decision on a motion to suppress is presumptively correct and should not be disturbed unless it is manifestly erroneous. (People v. Clay (1973), 55 Ill. 2d 501, 304 N.E.2d 280; People v. Klein (1983), 115 Ill. App. 3d 582, 586, 450 N.E.2d 1268, 1271.) In Illinois v. Gates (1983), 462 U.S. 213, 238-39, 76 L. Ed. 2d 527, 548, 103 S. Ct. 2317, 2332, the United States Supreme Court stated that the task on review is simply to ensure that the trial court had a substantial basis for concluding that probable cause existed. (See People v. Tisler (1984), 103 Ill. 2d 226, 248, 469 N.E.2d 147, 158, citing Gates.) The burden is on the defendant to establish the illegality of arrest when he seeks to use the illegality as a basis for suppression of evidence. People v. Petersen (1982), 110 Ill. App. 3d 647, 654, 442 N.E.2d 941, 947.

We do not believe that defendant met this burden, and consistent with Robinson, Moody, and Kiney, we hold that the trial court properly denied the motion to suppress. We find, first, that the arresting officer acted reasonably in arresting defendant and had probable cause to do so and to search within the meaning of sections 107 — 2(c) and 108 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, pars. 107 — 2(c), 108 — 1), irrespective of whether defendant could be convicted under section 11 — 1010 of the Code or of DUI. The United States Supreme Court remarked in Michigan v. DeFillippo (1979), 443 U.S. 31, 36, 61 L. Ed. 2d 343, 349, 99 S. Ct. 2627, 2631:

“The validity of the arrest does not depend on whether the suspect actually committed a crime; the mere fact that the suspect is later acquitted of the offense for which he is arrested is irrelevant to the validity of the arrest. We have made clear that the kinds and degree of proof and the procedural requirements necessary for a conviction are not prerequisites to a valid arrest. [Citations.]”

Second, the officer observed defendant’s ordinance violations, to wit: riding a bicycle on a sidewalk in the business district, and riding it at night without a headlight (also in violation of section 11 — 1507(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95V2, par. 11— 1507(a))). The arresting officer testified that such violators would be booked if unable to make bond at the station, or that a valid driver’s license could be accepted. Defendant did not testify in support of the motion. Thus the evidence justified a pat-down conducted preliminary to putting defendant in the squad car and directed toward protection of the officer. (See 2 W. LaFave, Search & Seizure sec. 5.2(e), at 281-87 (1978).) Moreover, when police are acting together, the knowledge of each is the knowledge of all (People v. Hobson (1983), 117 Ill. App. 3d 191, 202, 452 N.E.2d 771, 779), and here another officer had already sought removal of a visible screwdriver from defendant’s person. Therefore, the pat-down, which revealed a knife and another screwdriver in addition to the burglary proceeds, could properly be conducted in investigating after defendant ran his bike into the squad car. Third, the officers had reason to conduct a pat-down search when investigating defendant as to the burglary (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868), and the fact that they did not do so at the earliest time does not render the search invalid or require suppression of the evidence.

Defendant cites People v. Nash (1979), 78 Ill. App. 3d 172, 397 N.E.2d 480. The conduct of the police and the basis for the arrest of the defendant in Nash are dissimilar from the instant case. The grounds for the arrest in this case were not merely discovered in retrospect; rather, alternate grounds were interrelated and occurred contemporaneously with the grounds stated by the officer, and were known to the officer at the time of the arrest, although unannounced and unarticulated. Likewise, defendant’s citation of People v. Johnson (1973), 14 Ill. App. 3d 254, 302 N.E.2d 430, which involved the search of passengers of an auto involved in a minor traffic offense, is of no help in the instant case.

Defendant next contends that the trial court abused its discretion in sentencing and punished him for exercising his right to a jury trial by considering its belief that he committed perjury at trial. The State argues that since defendant failed to object to the trial court’s remarks in sentencing the issue has been waived. We agree. The waiver rule applies to constitutional questions as well as to other issues. (People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856, 857.) Moreover, we would reject defendant’s argument on the merits.

At the sentencing hearing, in informing defendant of his right of allocution, the court indicated it was bothered by certain matters in the presentencing report, to which no corrections were offered. Defendant declined to exercise his right of allocution. In pronouncing sentence the court remarked on defendant’s version of the occurrence as shown in the presentencing report:

“Mr. Corrigan stated, T was intoxicated when I did it, so I don’t remember everything I did. The reason I went and broke into his house was because I believed he had a large quantity of marijuana there and I couldn’t find it in his house, so I went to his car and broke into it and that’s when they arrested me.’ ”

The court commented that it believed defendant had perjured himself at trial.

Defendant cites People v. Sivels (1975), 60 Ill. 2d 102, 324 N.E.2d 422 (sentences not imposed because defendant asked for jury trial; affirmed), and People v. Moriarty (1962), 25 Ill. 2d 565, 185 N.E.2d 688 (punishment imposed in part because defendant availed himself of jury trial; reversed and remanded), which state that a defendant in a criminal case may not be punished by heavy sentence merely because he exercises his constitutional right to be tried before an impartial judge or jury. The remarks of the judge in Moriarty, which led to reversal, appear to be these:

“ ‘Well, you’re going to pay the penalty for it after a fashion. If you’d have come in here, as you should have done in the first instance, to save the State the trouble of calling a jury, I would probably have sentenced you, as I indicated to you I would have sentenced you, to one to life in the penitentiary. It will cost you nine years additional, because the sentence now is ten to life in the penitentiary.’ ” (25 Ill. 2d 565, 567, 185 N.E.2d 688.)

Moriarty also noted that in People v. Capon (1961), 23 Ill. 2d 254, 257, 178 N.E.2d 296, 297-98, the court had refused to disturb a sentence despite inappropriate remarks by the trial court at the time of imposing punishment.

It is within the authority of the trial court to consider defendant’s perceived perjury at trial when sentencing him. (See United States v. Grayson (1978), 438 U.S. 41, 57 L. Ed. 2d 582, 98 S. Ct. 2610; People v. Meeks (1980), 81 Ill. 2d 524, 536, 411 N.E.2d 9, 15; and People v. Oravis (1980), 81 Ill. App. 3d 717, 719, 402 N.E.2d 297, 299.) The judge’s remarks concerning defendant’s use of jury trial could therefore be treated as an additional factor for imposing sentence. The trial judge did, in his statements prior to sentencing, mention the abuse of the right of jury trial, but the statement was in the context that the abuse was the untruthfulness of the defendant. The court clearly indicated to the defendant the reasons for the sentence imposed. A review of the trial judge’s comments in this case reflect they were within the authority of Grayson, Meeks and Oravis, and that the trial judge did not punish defendant in sentencing solely, or in part, because he exercised his right to jury trial within the meaning of Moriarty. Moreover, other evidence in aggravation was entirely sufficient to justify the sentence imposed.

Defendant argues his statements to the probation office should not be admissible against him unless he had been given Miranda warnings. We note Miranda warnings are not required when a defendant is interviewed in connection with a routine presentence report. People v. Bachman (1984), 127 Ill. App. 3d 179, 184-85, 468 N.E.2d 817, 822.

Affirmed.

GREEN, P.J., and MILLS, J., concur.


source: Caselaw Access Project

author: JUSTICE TRAPP

license: Public Domain

text:
    EDWARD J. BOND et al., Plaintiffs-Appellants, v. CLARENCE DUNMIRE et al., Defendants-Appellees.
    Fourth District
    No. 4—83—0351
    Opinion filed December 28, 1984.

      Thomas H. Piper, of Carrollton, for appellants.
    Denis A. McGrady, Sr., of McGrady & McGrady, of Gillespie, for appel-lees.
   JUSTICE TRAPP

delivered the opinion of the court:

This appeal involves a complaint praying that defendants be enjoined from maintaining a barrier across East Street in the H.E. Haag subdivision located in the city of Benld, Macoupin County. The complaint was dismissed on two grounds: first, the cause was barred under the doctrine of res judicata by the judgment in a previous case, No. 79 — CH—16; and second, the complaint failed to state a cause of action since plaintiffs did not allege the necessary elements for injunc-tive relief under the law. The complaint was dismissed with prejudice at plaintiffs’ cost on the basis of the pleadings. Plaintiffs appeal from the judgment of the circuit court of Macoupin County. We affirm in part, reverse in part, and remand the cause.

Plaintiffs raise two issues on appeal: (1) whether the trial court erred in concluding the cause was barred by the prior judgment in No. 79 — CH—16, Bond v. Dunmire, under the doctrine of res judi-cata; and (2) whether the court erred in dismissing the complaint for failure to state a cause of action.

An understanding of the facts in this case would be best served by examination of the following diagram of the street in question and the contiguous property appurtenant thereto.

This is a portion of Plaintiffs Exhibit A

The property is located in the Haag subdivision, which was platted in 1905 and by which the one-block, 40-foot-wide street, East Street, was dedicated to the public use forever, along with all other streets and alleys as platted in the subdivision. The Bonds own lots 14, 15, 16, 17, 18, and 19, the eastern edge of the property abutting on East Street. The Dunmires own lots 9, 10, 11, 12, and 13, which lie south of the Bonds’ property, and lot 13 is bordered on the east by East Street. Plaintiff Delaney owns a triangular property adjacent to the properties of the Bonds and Dunmires, the western border of which abuts East Street. The entire subdivision is bordered on the south by property along the northern border of which is a strip now referred to as Sawyerville Road. The Bonds alleged that both they and the defendants derived title to their properties from successors in title to H.E. Haag, the original owner of the subdivision land. These properties, as well as the triangular property belonging to plaintiff Delaney, appear within the platted subdivision as shown by the 1905 plat, an exhibit herein.

Around 1979, the Dunmires erected, and have since maintained, a barrier of railroad ties and wire across East Street along their property’s northern border. The Bonds and Mr. Delaney commenced this action seeking an order requiring the Dunmires to remove the barrier from East Street, thereby allowing free ingress and egress to and from their properties. Count I of the complaint pertained to the Bonds, and count II of the complaint pertained to Mr. Delaney. Inasmuch as defendants’ motion to dismiss raised the claim of res judi-cata only as to count I, we treat the counts separately.

Defendants argued, and the trial court so found, that the issues raised in count I of the complaint were substantially the same as the issues raised in cause No. 79 — CH—16, Edward J. Bond v. Clarence Dunmire, wherein the amended complaint was dismissed at plaintiff’s costs on April 8, 1980. In that case, as in this, Bond sought injunctive relief against Dunmire in the matter of the barrier across East Street on the basis of the plat and dedication of the streets and alleys therein to public use. The trial court reviewed the court file in No. 79 — CH—16 and concluded that the complaint was dismissed for failure to state a cause of action and was, therefore, disposed of on its merits. The order of dismissal was thus involuntary and for reasons other than for lack of jurisdiction, improper venue, or failure to join an indispensable party and constituted an adjudication on the merits. See Supreme Court Rule 273 (87 Ill. 2d R. 273).

Plaintiffs maintain that the order in No. 79 — CH—16 was not a final judgment, since it neither contained the words “with prejudice,” or words of similar meaning, nor stated specifically the basis on which the dismissal was granted. Plaintiffs urge that the dismissal in the prior action may have been upon some technical deficiency rather than on the merit's and that, in view of the wording of the order, defendants have not sustained the burden of proving the complaint was dismissed on its merits.

This court recently discussed the principle of res judicata in Redfern v. Sullivan (1982), 111 Ill. App. 3d 372, 375-76, 444 N.E.2d 205, 208. Res judicata is a doctrine which reflects the public policy favoring finality in litigation and judicial economy. (Smith v. Bishop (1962), 26 Ill. 2d 434, 187 N.E.2d 217.) The doctrine of res judicata is divided into two branches: estoppel by judgment, sometimes referred to as res judicata, and estoppel by verdict, also known as collateral estoppel. Hassett Storage Warehouse, Inc. v. Board of Election Commissioners (1979), 69 Ill. App. 3d 972, 387 N.E.2d 785.

Estoppel by judgment (res judicata) provides that a valid judgment in a previous action between the parties bars a subsequent action between those parties on the same claim or cause of action. (City of Hickory Hills v. Village of Bridgeview (1977), 67 Ill. 2d 399, 367 N.E.2d 1305.) Causes of action are identical where the evidence necessary to sustain a second verdict would sustain the first, i.e., where the causes of action are based upon a common core of operative facts. (Redfern v. Sullivan (1982), 111 Ill. App. 3d 372, 444 N.E.2d 205.) The doctrine applies not only to those issues which were actually raised in the first proceeding, but also to any issues which might have been raised in that proceeding. (Kohler v. Don E. Williams Co. (1978), 59 Ill. App. 3d 716, 375 N.E.2d 1034.) Where the doctrine of estoppel by judgment properly applies, it operates without regard to whether the prior adjudication is correct or erroneous. Morris v. Union Oil Co. (1981), 96 Ill. App. 2d 148, 421 N.E.2d 278; La Salle National Bank v. County Board of School Trustees (1975), 61 Ill. 2d 524, 528-29, 337 N.E.2d 19, cert. denied (1976), 425 U.S. 936, 48 L. Ed. 2d 177, 96 S. Ct. 1668; People ex rel. McAllister v. East (1951), 409 Ill. 379, 100 N.E.2d 746; People v. Kidd (1947), 398 Ill. 405, 75 N.E.2d 851.

Count I of the complaint herein reflects an identity of parties or their privies, i.e., the Bonds and the Dunmires, and substantially the same demand involving the same barricade. Plaintiffs’ counsel argued in the trial court that as new counsel in this matter, he sought to phrase the pleadings in this action consistent with those in Cook v. Mighell Construction Co. (1976), 40 Ill. App. 3d 1032, 353 N.E.2d 43, wherein the complaint for injunctive relief was successful. Plaintiffs’ counsel argued that the complaint herein alleged additional facts, e.g., that the city had for many years established and maintained East Street as a public street and, more recently, had attempted to abandon a portion or all of it. However, it does not appear from the record that this fact or any other fact essential to plaintiffs’ cause of action has come into existence subsequent to the prior action. Hence, this cause is not within the exception from the application of res judicata referred to in Pratt v. Baker (1967), 79 Ill. App. 2d 479, 223 N.E.2d 865, for premature actions where time for performance by a defendant has not arrived, or where the plaintiff has not performed a condition precedent to recovery.

Although the April 1980 order of dismissal did not use the words “with prejudice,” which did appear in the dismissal orders considered in Brainerd v. First Lake County National Bank (1971), 1 Ill. App. 3d 780, 275 N.E.2d 468, and Schaeffer v. Zaltsman (1975), 29 Ill. App. 3d 1011, 331 N.E.2d 212, this does jqot deprive the order of its finality. In Bates v. Ulrich (1976), 38 Ill. App. 3d 203, 204, 347 N.E.2d 286, 288, this court stated:

“A general dismissal with no right given to plead over, and followed by no request for leave to plead over is a final, appeal-able order. (Doner v. Phoenix Joint Stock Land Bank, 381 Ill. 106, 45 N.E.2d 20.) Substance, not form, determines whether the order is final. (Peach v. Peach, 73 Ill. App. 2d 72, 218 N.E.2d 504.) The phrase that defendant ‘go hence without day’ are not words of art essential to finality. (Lakatos v. Prudence Mutual Casualty Co., 113 Ill. App. 2d 310, 314, 252 N.E.2d 123.) Neither does finality depend upon whether the ‘suit,’ ‘cause of action’ or ‘complaint’ is dismissed. (Martin v. Masini, 90 Ill. App. 2d 348, 354, 232 N.E.2d 770.) The record here demonstrates that the trial judge intended the order in question to be final. On the first two occasions his order specifically dismissed the complaint and granted leave to amend. The order in question dismissed the ‘cause’ not the complaint, and assessed costs against the plaintiff. Had the order been other than final, the trial judge would have had no authority to assess the costs.”

In No. 79 — CH—16, the trial judge allowed defendant’s first motion to dismiss, granting leave to amend. Later, the trial court allowed defendant’s motion to dismiss the amended complaint without granting leave to amend or stating the basis for dismissal. The April 1980 order dismissing the first amended complaint assessed costs against plaintiff. Thereafter the trial court retained jurisdiction for 30 days for purposes of seeking leave to file a second amended complaint. Plaintiffs neither availed themselves of that jurisdiction nor took an appeal. In St. Joseph Data Service, Inc. v. Thomas Jefferson Life Insurance Company of America (1979), 73 Ill. App. 3d 935, 393 N.E.2d 611, this court observed that Supreme Court Rule 273 functions to place the burden of clarity in the dismissal order on the plaintiff, i.e., the plaintiff must persuade the trial court either to include a specification that the dismissal is without prejudice or to permit an amendment. If the plaintiff is unsuccessful, his recourse is to appeal. The April 1980 dismissal order was final, and no appeal was taken.

Bates and St. Joseph Data are controlling on this issue, rather than the cases cited by plaintiffs. Branom v. Miller (1960), 25 Ill. App. 2d 94, 166 N.E.2d 123, preceded the effective date of Supreme Court Rule 273. In In re Estate of Cochrane (1979), 72 Ill. App. 3d 812, 391 N.E.2d 35, an executor filed a petition to recover alleged assets of an estate. The petition was dismissed on motion, and a second petition with additional allegations was filed within 30 days. As to the second petition, the trial court declined to apply the doctrine of res judicata, and subsequently held in favor of the executor. City of Chicago v. Westphalen (1981), 93 Ill. App. 3d 1110, 418 N.E.2d 63, involved application of the doctrine of estoppel by verdict, or collateral estoppel, which poses a narrower bar than estoppel by judgment. See Decatur Housing Authority v. Christy-Foltz, Inc. (1983), 117 Ill. App. 3d 1077, 454 N.E.2d 379.

We conclude that the trial judge correctly dismissed count I on the ground of res judicata. Finality cannot be avoided merely by filing a new lawsuit. However, plaintiff Delaney was not a party to the prior action, nor did defendants’ motion to dismiss raise res judicata as to him. We therefore reverse the trial court’s dismissal on the ground of res judicata as to count II.

We next consider whether count II was properly dismissed for failure to state a cause of action. Count II alleged a description of Delaney’s property and its relationship to East Street; described the Dunmires’ property; stated that Haag’s property was surveyed, subdivided and platted in April 1905; Haag adopted the survey, subdivision and plat as his act and dedicated to the public use forever the streets and alleys designated on the plat; the plat was filed and recorded (Exhibit A, incorporated into complaint); the plat set forth a street designated as East Street at a specified location; thereafter the city for many years established and maintained East Street as a public street; the city attempted to abandon a portion of the street; the property was surveyed in July 1980 (Exhibit B, incorporated into complaint); and he, as a landowner adjacent to East Street, and as a result of the city and the public using East Street as a public street, was entitled by common law easement and by easement by prescription to have the street remain open for public use. Count II further alleged that defendants erected a barrier across the street about 120 feet north of its southerly end in March 1979 and thereafter maintained the barrier so as to prevent .Delaney free ingress and egress to his property; plaintiff had no other reasonable, adequate or existing means of ingress and egress to his property; defendants refused to remove the barrier as requested; his damages resulting from the obstruction of the roadway were recurrent, continuous and irreparable, and without adequate remedy at law; and that the defendants would continue maintaining the obstruction of the roadway unless restrained from doing so by injunction. Delaney sought an order requiring defendants to remove the barrier and refrain from further obstructing East Street.

Defendants’ motion to dismiss alleged that count II failed to state a cause of action and set forth a proper basis for injunctive relief; Delaney’s claim of a common law easement and easement by prescription acknowledged existence of a proper legal remedy; Delaney failed to state he had requested defendants to remove the barrier; the complaint failed to show a clear and palpable violation of Delaney’s rights; and the complaint failed to state that any damage or injury would be sustained by him if injunctive relief was not granted.

The court’s letter opinion quoted First National Bank v. City of Chicago Heights (1978), 63 Ill. App. 3d 963, 968, 381 N.E.2d 446:

“A property owner has no special right of access to a street that is not yet improved or opened by a city or in long time public use. [Citations.] The decision to open a street is a discretionary function, assigned by law to a municipality alone. [Citation.] And a property owner cannot obtain rights to the street by unilateral action.”

The trial court went on:

“In order to be entitled to injunctive relief *** the complaint for injunction must allege (a) possession of a certain and clearly ascertained right which requires protection; (b) immediate and irreparable injury if the injunctive relief is denied; (c) lack of an adequate remedy at law; and (d) a probability of ultimate success on the merits. Stocker Hinge Manufacturing Co. v. Darnel Industries, 61 Ill. App. 3d 636, 377 N.E.2d 1125, and ABC Trans National v. Aeronautics Forwarders, 62 Ill. App. 3d 671. Plaintiff’s complaint for injunction does not state a cause of action.”

The court appears to have applied the standard for issuance of a temporary restraining order. On appeal, the parties frame the issue as whether the complaint stated a cause of action.

As a preliminary matter, we note that this court set forth the standard to be applied in considering a motion to dismiss in Skinner v. Mahomet Seymour School District (1980), 90 Ill. App. 3d 655, 656-57, 413 N.E .2d 507, 508:

“There are certain general rules of construction to be applied when a complaint is challenged for failure to state a cause of action. The essential test of the sufficiency of the complaint is whether it reasonably informs the defendant of a valid claim under a general class of cases of which the court has jurisdiction. (Kramer v. McDonald’s System, Inc. (1978), 61 Ill. App. 3d 947, 378 N.E.2d 522, aff’d on other grounds (1979), 77 Ill. 2d 323, 396 N.E .2d 504.) In determining the sufficiency of the complaint, the court must accept as true all well pleaded facts and reasonable inferences drawn therefrom. (Morse v. Nelson (1977), 48 Ill. App. 3d 895, 363 N.E .2d 167.) No pleading is bad in substance where it reasonably informs the opposite party of the nature of the claim. (Ill. Rev. Stat. 1979, ch. 110, par. 42(2).) Finally, a complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved under pleadings which would entitle plaintiff to relief. Cain v. American National Bank & Trust Co. (1975), 26 Ill. App. 3d 574, 325 N.E.2d 799.”

In reviewing the dismissal of a complaint, the facts as stated therein are accepted as true. (Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 402 N.E.2d 194.) Moreover, section 2 — 612(b) of the Code of Civil Procedure provides a test for defects of substance where a pleading is attacked. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 612(b), formerly Ill. Rev. Stat. 1979, ch. 110, par. 42(2).) According to this test, allegations of legal conclusions and allegations of evidence constitute merely formal defects and not defects of substance. (Browning v. Heritage Insurance Co. (1975), 33 Ill. App. 3d 943, 338 N.E.2d 912.) Additionally, as exhibits become part of a complaint for all purposes, a motion to dismiss also admits the facts contained in such exhibits. Burks Drywall, Inc. v. Washington Bank & Trust Co. (1982), 110 Ill. App. 3d 569, 442 N.E.2d 648.

Plaintiffs rely on Wattles v. Village of McHenry (1922), 305 Ill. 189, 137 N.E. 114, Marshall v. Pfeiffer (1924), 314 Ill. 286, 145 N.E. 411, and Gerstley v. Globe Wernicke Co. (1930), 340 Ill. 270, 172 N.E.2d 829, as well as the Cook case, as supporting relief in their cause of action. Wattles succinctly summarizes the law regarding the rights of property owners in the streets, alleys, and public places laid out in a platted subdivision:

“No law is better settled in this State than that which controls this case. Where the owner of land lays it out in lots and blocks and makes and exhibits a plat thereof showing streets and alleys and sells some of the lots with a clear reference to the plan, the purchaser acquires as appurtenant to the lots every easement, privilege and advantage which the plan represents as belonging to them as a part of the platted territory. This privilege is not limited to the purchaser, but is a right vesting in the purchaser that all persons whosoever, as their occasion may require, may use the streets, alleys and other public places according to their appropriate purposes. The sale and conveyance of lots according to a published plat implies a grant or covenant to the purchaser that streets, alleys and other public places indicated as such upon the plat shall be forever open to the use of the public, free from all claim of interference of the proprietor inconsistent with such use. (Thompson v. Maloney, 199 Ill. 276; Stevenson v. Lewis, 244 id. 147.) It is unimportant whether the public has so far accepted the dedication as to be bound to keep the streets and alleys in repair, since the question involved is simply one of private right. (Zearing v. Raber, 74 Ill. 409; Earll v. City of Chicago, 136 id. 277.) The easement appurtenant to each lot by reason of the existence of the plat and the sales with reference to it is private property. It cannot be lost merely by non-user where there is no adverse possession. Swedish Evangelist Lutheran Church v. Jackson, 229 Ill. 506.” (Wattles v. McHenry (1922), 305 Ill. 189, 192, 137 N.E. 114, 116.)

(See also Marsh v. Village of Fairbury (1896), 163 Ill. 401, 45 N.E. 236; Maywood Co. v. Village of Maywood (1886), 118 Ill. 61, 6 N.E. 866; Corning & Co. v. Woolner (1903), 206 Ill. 190, 69 N.E. 53; Village of Benld v. Dorsey (1924), 311 Ill. 192, 142 N.E. 563.) Other jurisdictions are in accord with these principles. (See generally Annot., A.L.R.2d 607, sec. 3 (1949); 2 Thompson on Real Property sec. 371 & n.4 at 458-59 (1980).) There can be no doubt that a party purchasing land in a subdivision with reference to a recorded plat, whereupon the various streets and alleys are dedicated to the public, acquires a right to have the streets and alleys remain open to all who would use them.

Further, interference with this right is properly the subject of injunctive relief. As our supreme court stated in Zearing v. Raber (1874), 74 Ill. 409, 413:

“The only remaining question relates to the jurisdiction of a court of equity, and upon this we entertain no doubt. The evidence shows a threatened nuisance, tending to deprive appellee and others of the full and free use of this street, as he is entitled to have it used, and this is a well recognized ground for equitable interposition. 2 Story’s Equity Jurisprudence, sec. 927; Corning v. Lowrie, 6 Johns. Ch. 439; Rowan’s Ex. v. Town of Portland, 8 B. Monr. 232; Hills v. Miller, 3 Paige, 254.”

See also Wattles v. Village of McHenry (1922), 305 Ill. 189, 137 N.E. 114.

Upon this body of authority, we conclude that count II of the complaint sufficiently states a cause of action and ought not to have been dismissed. Defendants rely upon First National Bank v. City of Chicago Heights (1978), 63 Ill. App. 3d 963, 381 N.E.2d 446. It involved the rights of owners of property adjacent to a dedicated street as against the municipality.

There are two rules of law as to the rights of property owners in the platted streets: First, the rule(s) in actions against public authorities, which are generally vested by law with discretion in such matters; and, second, the rule(s) in actions against the grantor, his privies, and other individuals — i.e., involving private rights. First National Bank is illustrative of the former rule, whereas Wattles is illustrative of the latter.

In First National Bank, the plaintiffs obtained an injunction ordering the city to remove barriers it had placed blocking the plaintiffs’ access to a dedicated street adjacent to their property. The case involved a platted rectangle, bordered on the north by 13th Street and on the south by 14th Street, with a center strip running north and south between 13th and 14th streets designated by plat as Wilson Avenue. Although designated, that avenue had never been opened or improved as a street by the city. Plaintiffs had built a shopping center on property directly west of this land, with an entrance and exit onto 14th Street. The city had previously granted plaintiffs’ zoning changes to permit commercial use of their property running along 14th Street on both sides of the land designated as Wilson Avenue. At plaintiffs’ request, the city had additionally vacated that part of Wilson Avenue from the north end of plaintiffs’ property south to 14th Street. The remainder of land in the rectangle, most of it north of plaintiffs’ property to 13th Street, remained vacant, except for a city-owned well house. A graveled strip ran from the well house to 13th Street, and there was no evidence that the strip had ever been used by any type of public traffic. Subsequent to the zoning changes, one of the plaintiffs began to grade and gravel a road on land north of their property, corresponding to the area designated on the plat as Wilson Avenue. With the project under way, that plaintiff applied to the city for a building permit for a street. The city denied the permit, indicating that in order to limit traffic around the residential area north of 13th Street it did not intend to improve or open Wilson Avenue as a public street. The city barricaded the field, preventing plaintiffs’ access to the graded area across it. Plaintiffs filed the action, seeking an injunction, and the trial court ordered the city to stop obstructing public use of the street plaintiffs had graded.

On appeal, the reviewing court in First National Bank v. City of Chicago Heights (1978), 63 Ill. App. 3d 963, 381 N.E.2d 446, reversed that order, reasoning:

“A property owner has no special right of access to a street that is not yet improved or opened by a city or in long time public use. [Citations.] The decision to open a street is a discretionary function, assigned by law to a municipality alone. [Citation.] And a property owner cannot obtain rights to the street by unilateral action. [Citations.] There is no showing here that the City abused its discretion in not opening Wilson Avenue, and concomitant to this exclusive discretion, the City had a right to prevent the plaintiffs’ unauthorized opening of and access to it. We, therefore, reverse the circuit court’s order to the City to remove the obstruction to the plaintiffs’ access to Wilson Avenue; the plaintiffs have no special access right to the street at this time.” (63 Ill. App. 3d 963, 968, 381 N.E.2d 446, 450.)

Such a special, or particular, right of access may be deemed necessary, as in First National Bank, to sustain a property owner’s action against a municipality in relation to platted streets.

As was stated in City of Elmhurst v. Buettgen (1946), 394 Ill. 248, 251-52, 68 N.E.2d 278, 281:

“The streets and sidewalks of a city are held in trust by the municipality for the use of the public, for purposes of travel and as a means of access to and egress from property abutting thereon. The primary right to the use of the streets and sidewalks of a city for the purposes of travel belongs to the public everywhere, and not to the abutting property owners alone. The general public has the paramount right to the use of the streets in all their parts ***. That right is the right of all persons, whether abutting property owners or residents or nonresidents of the municipality, to pass over it freely and without impediment whenever they have occasion or desire to do so. It is not an absolute right in every or any person at all times or under all circumstances, but is subject to such incidental or partial restriction or obstruction as manifest necessity may require. An abutting property owner has the right, for the convenience of his property, to make all proper and reasonable use of the sidewalk and street not inconsistent with the paramount right of the public.
Article 23 of the Cities and Villages Act grants certain powers to the corporate authorities of municipalities, among which are the power to vacate, lay out, establish, open, alter, widen, extend, grade, pave or otherwise improve streets and sidewalks, [citation] the power to regulate the use of streets, [citation] the power to regulate the use of sidewalks, [citation] and the power to regulate traffic upon the streets and sidewalks. [Citation.] There can be no question but that the title to all streets and sidewalks is vested in the city in trust for the public, and under the above provisions of the Cities and Villages Act they are under the control, supervision and dominion of the corporate authorities of the city for the purpose of preserving them and promoting their intended use.”

Accord, Salem National Bank v. City of Salem (1964), 47 Ill. App. 2d 279, 198 N.E.2d 137 (driveway regulations).

Similarly, in Ryan v. Rosenstone (1960), 20 Ill. 2d 79, 82, 169 N.E.2d 360, 362, the court stated:

“A property owner whose land abuts upon a public street or highway has, as an incident to his ownership, the right of access. [Citations.] This right is subject, nevertheless, to the right of the State to regulate and control the public highways for the benefit of the public even though the abutter may be inconvenienced. [Citations.] The regulation or restriction must, however, be reasonable. [Citation.]”

Legislative grants of authority to units of state and municipal government to regulate and control the public ways for the benefit of the public, limited by the reasonableness of such regulations or restrictions, currently appear in sections 11 — 80—2 of the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 11 — 80—2) (“The corporate authorities of each municipality may regulate the use of the streets and other municipal property”); section 4 — 201.1 of the Illinois Highway Code (Ill. Rev. Stat. 1983, ch. 121, par. 4 — 201.1) (“[The Department of Transportation has the power to] determine and adopt rules, regulations and specifications for State highways not inconsistent with this [Illinois Highway] Code); and section 4 — 210 of the Illinois Highway Code (Ill. Rev. Stat. 1983, ch. 121, par. 4 — 210) (“Except where the right of access has been limited by or pursuant to law, every owner or occupant of property abutting upon any State highway shall have reasonable means of ingress from and egress to the State highway consistent with the use being made of such property and not inconsistent with public safety or with the proper construction and maintenance of the State highway for purposes of travel, drainage and other appropriate public use”). See also sections 11 — 91—2 (concerning devolution of title to property of streets and alleys when vacated by virtue of ordinance of a municipality) and 11 — 105—1 (authorizing corporate authorities of municipalities to accept or receive public grounds and easements located within the corporate limits or in certain unincorporated territory, to hold and maintain such grounds and lands, and to supervise or regulate their use for any proper public use) of the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 24, pars. 11 — 91—2, 11— 105-1).

That there are two rules of law affecting matters relating to streets and highways, as to those seeking to enforce their rights having purchased lots in a subdivision in accordance with a plat, is illustrated by the case of Welter v. Eaton (1937), 366 Ill. 143, 7 N.E.2d 855. In that case, the Welters filed a bill seeking a mandatory injunction to compel defendants to remove a fence erected by them in certain roads in a subdivision and to enjoin further obstruction of such roads. The defendants erected or repaired fences at either end of their property across a road which ran through their lots, and placed another fence north of their property through the center of another road. They plowed up the entire enclosed tract, including roadways within the fence, and placed a 16-foot gate in the east side of the fence across the road running between their lots. The property of both the Welters and defendants had been purchased in a platted subdivision divided into lots, with the named streets shown on the plat.

The Welters’ property in the subdivision did not abut on the roads the defendants had closed up within their fences. Appealing dissolution of a temporary injunction in their favor and dismissal of the bill for want of equity, the Welters maintained that, having purchased their lots in the subdivision in accordance with the plat, their grantor and his privies were estopped from closing the roads shown on that plat as highways. The defendant argued that the roads in the subdivision had not been accepted by the commissioner of highways or any other authorities, had not been used or traveled by the public, and that the obstruction had not in any way affected the property of the Welters or prevented or hindered access thereto or egress therefrom. Defendants further argued that since the Welters’ lots did not abut on the roads closed, they had sustained no special damages and, therefore, had no right to prevent the closing of the roads. Defendants’ theory had been adopted in the dismissal of the bill.

In Welter, the reviewing court reversed in recognition of the different rules of law applicable as against the actions of the public authorities and those of the grantor of a platted subdivision or his privies:

“The principal question here raised is whether [Welters], by reason of their purchase of lots with reference to the plat of the subdivision, have a right to have open, at all times, the strips shown on the plat as roads or highways. Counsel for [defendants] say that in order to have such right their lands must abut on the roads sought to be closed.
There are two rules of law affecting the matter of vacation of streets and highways. In neither of them is it held to be material whether the plat, which has, as in this case, been duly executed and recorded, be so accepted by public authorities as to amount to a dedication requiring that the public keep the highways in repair.
The rule applicable, where public authorities seek, under the statute, to vacate a public street or highway, is, that a person who does not own land abutting on the highway sought to be vacated, and who is not a party to the proceeding to vacate the same, has only such interest as is possessed by all other members of the public residing in the vicinity and cannot, in his individual capacity, maintain an action to prevent such vacation, in the absence of a showing on his part that he will suffer special damages not common to the general public. Such a case is Hartshorn v. Bierbom, 312 Ill. 275, and the cases therein cited.” (Welter v. Eaton (1937), 366 Ill. 143, 145-46, 7 N.E.2d 855, 856.)

The Welter court contrasted this rule, applicable in regard to the actions of public authorities, with that applicable as against the actions of the grantor or his privies, and quoted from the early case of Zearing v. Raber (1874), 74 Ill. 409, 412. The Zearing court, referring to the rule as stated in 2 Smith’s Leading Cases 154 (7th Am. ed.), said:

“ ‘If the owner of land lays out and establishes a town, and makes and exhibits a plan of the town, with various plats of spare ground, such as streets, alleys, quays, etc., and sells the lots with clear reference to that plan, the purchasers of the lots acquire, as appurtenant to their lots, every easement, privilege and advantage which the plan represents as belonging to them as a part of the town, or to their owners as citizens of the town. And the right thus passing to the purchasers is not the mere right that such purchaser may use these streets, or other public places, according to their appropriate purposes, but a right vesting in the purchasers, that all persons whatever, as their occasion may require or invite, may so use them; in other words, the sale and conveyance of lots in the town, and according to its plan, imply a grant or covenant to the purchasers, that the streets and other public places, indicated as such upon the plan, shall be forever open to the use of the public, free from all claim or interference of the proprietor inconsistent with such use. [Citations.]’ ” (Zearing v. Raber (1874), 74 Ill. 409, 412.)

Defendants argued that the rule of Zearing was invoked only when it was shown that the complainant owned property abutting on the highway sought to be closed.

The Welter court rejected this argument as a misapprehension of the law, stating that such was the rule only where there had been a vacation of a street by public authorities under the statute, whereas the Welters’ rights were private rights, and conveyance of lots to them according to the grantor’s plat carried the implication of a grant or covenant to them for the tracts of land marked as roads or other public places, as indicated upon the plat, shall be forever open for use not only of the purchasers of lots but for the public.

So it is here. As between the author of the plat, or his privies, here the Dunmires, and others who purchased in the subdivision with reference to the plat, the latter have a right to have the tracts marked thereon as roadways kept open for their use and the use of the public. As stated in Earll v. City of Chicago (1891), 136 Ill. 277, 285, 26 N.E. 370, 372, there may well be private rights, in respect to streets, in grantees of conveyances made under the plat, although there may have been no complete dedication of the streets to the public by an acceptance of the proffered dedication. (See also Hamilton v. Chicago, Burlington & Quincy R.R. Co. (1888), 124 Ill. 235, 241, 15 N.E. 854; Wattles v. Village of McHenry (1922), 305 Ill. 189, 137 N.E. 114; Zearing v. Raber (1874), 74 Ill. 409.) This doctrine as to the private rights in platted streets, as set forth in Zearing and Wattles and referred to in numerous other cases (see, e.g., Gridley v. Hopkins (1877), 84 Ill. 528, 531; Maywood Co. v. Village of Maywood (1886), 118 Ill. 61, 71-72, 6 N.E. 866, 870-71; Smith v. Town of Flora (1872), 64 Ill. 93; Marshall v. Pfeiffer (1924), 314 Ill. 286, 145 N.E. 411; Trustees of Schools v. Dassow (1926), 321 Ill. 346, 353, 151 N.E. 896, 899; Gerstley v. Globe Wernicke Co. (1930), 340 Ill. 270, 172 N.E. 829; and Marshall Field v. Barling (1894), 149 Ill. 556, 37 N.E. 850), is that of the common law (see Earll v. City of Chicago (1891), 136 Ill. 277, 285, 26 N.E. 370, 372).

Affirmed as to count I; reversed as to count II; cause remanded for further proceedings consistent with this opinion.

GREEN, P.J., and WEBBER, J., concur.


author: JUSTICE HOPE

text:
    JAMES T. COLLEY, Plaintiff-Appellant, v. SWIFT & COMPANY et al., Defendants-Appellees.
    Second District
    No. 83—928
    Opinion filed December 14, 1984.
    Keith E. Ekstrom and Clifford E. Lund, both of Law Offices of Harry Schaffner, of Elgin, for appellant.

      Gerald M. Sheridan, Jr., of Wheaton, and Robert F. Casey, of Geneva, for appellees.
   JUSTICE HOPE

delivered the opinion of the court:

Plaintiff, James Colley, appeals from an order of the circuit court of Kane County dismissing his four-count complaint pursuant to sections 2 — 619(2) and (9) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 619(2) and (9)). Plaintiff’s complaint alleged retaliatory discharge against defendant Swift & Company (Swift), and conspiracy against three named individual defendants, in their individual capacity and as agents of Swift. The basis of the court's dismissal was the existence of a collective bargaining agreement between defendant Swift and plaintiff’s union which provided a grievance procedure for dismissal without proper cause, thereby precluding plaintiff from filing a tort action for retaliatory discharge. (See Suddreth v. Caterpillar Tractor Co. (1983), 114 Ill. App. 3d 396, 449 N.E.2d 203.) On appeal, plaintiff raises four arguments to support the single general contention that the collective bargaining agreement here does not preclude a separate tort action for retaliatory discharge against Swift. Additionally, plaintiff argues that the trial court erred in dismissing the conspiracy counts against the individual defendants. Defendants respond to the above arguments and also argue that plaintiff’s complaint was properly dismissed because plaintiff was not discharged but was merely indefinitely suspended.

Count I of plaintiff’s complaint alleged that on November 2, 1981, he sustained accidental injuries arising out of and during the course of his employment with Swift. In February 1981, he filed a workers’ compensation claim as a result of these injuries, and the claim was submitted for arbitration to the Illinois Industrial Commission (IIC) in June 1982. The count further alleged that during the pendency of the claim and before a decision was rendered by the IIC, plaintiff’s employment was terminated and that the termination was done in retaliation for his having filed a workers’ compensation claim. Plaintiff sought to recover $15,000 in compensatory damages and $1 million in punitive damages from defendant Swift.

Counts II through IV against the individual defendants repeated the allegations of count I and further alleged, as against each of them, that each was a manager or supervisor for Swift at the time of plaintiff’s alleged retaliatory discharge and that each and all conspired together and formed a deliberate design and purpose to deprive plaintiff of his employment for his filing of a workers’ compensation claim against Swift. These counts also contained an allegation that each was guilty of one or more overt acts in furtherance of this design and purpose, including the denial of sickness and disability benefits, the fabrication of grounds for firing the plaintiff, the direction of others to testify regarding plaintiff, the denial of union benefits and contractual defenses under the union contract, and the direction of others to refuse to pay workers’ compensation benefits to plaintiff. Plaintiff again requested compensatory and punitive damages.

Defendants moved to dismiss plaintiff’s complaint pursuant to sections 2 — 619(2) and 2 — 619(9) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 619(2) and (9)), alleging as grounds that a collective bargaining agreement was in effect between plaintiff’s union and Swift which provided that a union employee could only be discharged for “proper cause”; that the collective bargaining agreement provided for a grievance procedure to resolve the dispute over the employee’s alleged wrongful discharge; that in fact plaintiff had filed a grievance protesting his suspension and that the grievance was unresolved and subject to binding arbitration procedures. The motion also alleged that plaintiff was not in fact discharged but was merely suspended indefinitely pending an investigation and final decision of the grievance. Attached to defendants’ motion was the sworn affidavit of defendant McElhattan, the plant manager of Swift, attesting to the facts alleged in the motion and also stating that plaintiff was suspended for unauthorized entry to the plant and taking photographs of Swift equipment. In addition, the “Adjustment of Grievances” portion of the collective bargaining agreement and the union’s statement of grievance were also attached to the motion. Plaintiff filed a brief in opposition to defendants’ motion to dismiss, along with a sworn affidavit realleging the facts in the complaint and further stating that after his suspension plaintiff filed a claim for unemployment insurance with the State of Illinois and that at the hearing on the claim defendant Lillian, the personnel manager of Swift, testified that plaintiff’s employment had been terminated and he was discharged. According to plaintiff’s affidavit, the referee’s decision in the unemployment claim included a finding that plaintiff had been discharged; defendant Swift did not appeal this ruling. Additionally, the affidavit stated that the IIC found that plaintiff was entitled to either workers’ compensation benefits or group insurance benefits, and that plaintiff made no unauthorized entry to the plant and violated no Swift policy. Attached to plaintiff’s affidavit was the referee’s decision in the unemployment claim, finding that plaintiff violated no company policy and was “discharged for reasons other than misconduct connected with the work.” The decision of the arbitrator in the workers’ compensation claim and a copy of the general rules and policies of Swift were also attached to plaintiff’s affidavit.

After reviewing the affidavits and hearing the arguments of counsel, the court denied defendants’ motion to dismiss, electing to follow the First District case of Wyatt v. Jewel Cos. (1982), 108 Ill. App. 3d 840, 439 N.E.2d 1053, which held that the existence of a collective bargaining agreement does not bar an action for retaliatory discharge. The court further found that the record thus far indicated a question of fact sufficient to survive a motion to dismiss. Defendants then filed a motion to reconsider or, alternatively, to stay proceedings, alleging as grounds that this court was presently considering a case which would be dispositive in the instant action. The motion cited Suddreth v. Caterpillar Tractor Co. (1983), 114 Ill. App. 3d 396, 449 N.E.2d 203, as the pending appellate court case. Plaintiff subsequently moved for and was granted leave to add his union and certain other named individuals as party defendants in the retaliatory discharge action, alleging that they improperly and without authority attempted to settle plaintiff’s grievance against Swift.

Prior to the hearing on defendant’s motion to reconsider, this court filed its opinion in Suddreth v. Caterpillar Tractor Co. (1983), 114 Ill. App. 3d 396, 449 N.E.2d 203, and held contrary to the decision in Wyatt v. Jewel Cos. (1982), 108 Ill. App. 3d 840, 439 N.E.2d 1053. We instead adopted the reasoning in Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, 406, 407 N.E.2d 95, in which it was held that an employee who is protected by a collective bargaining agreement must exhaust all the remedies available to him before filing a civil suit against his employer for retaliatory discharge. (Suddreth v. Caterpillar Tractor Co. (1983), 114 Ill. App. 3d 396, 399-401, 449 N.E.2d 203.) On the basis of our decision in Suddreth, the circuit court granted defendants’ motion to dismiss.

Following the court’s ruling, plaintiff orally requested leave to file an amended complaint to show that he had exhausted all administrative remedies; however, no ruling on the motion was ever obtained and no amended complaint appears in the record. We also note that plaintiff’s union and certain other named individuals were not in fact added as party defendants. Plaintiff’s notice of appeal was timely filed.

A cause of action for retaliatory discharge was first recognized by the Illinois Supreme Court in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353. The cause of action was designed to limit an employer’s otherwise absolute power to terminate an at-will employee where the circumstances indicate that the right was exercised to prevent the employee from asserting his statutory rights under the Workers’ Compensation Act. (74 Ill. 2d 172, 181, 384 N.E.2d 353.) In recognizing the cause of action, the court reasoned that in the absence of a recovery in tort an employee terminable at will has no recourse against his employer if the employer should decide to discharge the employee for filing a workers’ compensation claim. Under these circumstances, the employee would be forced to choose between continued employment and the workers’ compensation legally due him. 74 Ill. 2d 172,182, 384 N.E.2d 353.

Appellate court decisions since Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, have been divided on the question whether the tort of retaliatory discharge should be extended to cover employees who are not terminable at will but who are covered by a collective bargaining agreement providing for termination only for “just cause.” The second, third, fourth, and fifth districts refused to extend the cause of action to employees covered by such a collective bargaining agreement, reasoning that the concept of retaliatory discharge was “subsumed within the just-cause provision and is within the power of the arbitrator to consider when determining if a discharge is for just cause.” (Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, 405-06, 407 N.E.2d 95; see also Mouser v. Granite City Steel Division of National Steel Corp. (1984), 121 Ill. App. 3d 834, 460 N.E.2d 115; Suddreth v. Caterpillar Tractor Co. (1983), 114 Ill. App. 3d 396, 449 N.E.2d 203; Basak v. Asplundh Tree Expert Co. (1983), 122 Ill. App. 3d 240, 460 N.E.2d 1197; Ward v. Howard P. Foley Co. (1983), 119 Ill. App. 3d 894, 457 N.E.2d 155; Deatrick v. Funk Seeds International (1982), 109 Ill. App. 3d 998, 441 N.E.2d 669.) Under these circumstances, the policy considerations in Kelsay were deemed not to be present because the employee was protected from retaliatory discharge by the collective bargaining agreement which allowed for arbitration to guarantee the parties’ rights. Further, the court in Cook opined that the collective bargaining agreement would be undermined if the employee were permitted to circumvent grievance procedures mutually agreed upon by filing suit. Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, 406, 407 N.E.2d 95.

Contrary to this position was the first district’s opinions in Wyatt v. Jewel Cos. (1982), 108 Ill. App. 3d 840, 439 N.E.2d 1053, and Midgett v. Sackett-Chicago, Inc. (1983), 118 Ill. App. 3d 7, 454 N.E.2d 1092, holding that the existence of a contractual remedy pursuant to a collective bargaining agreement does not bar plaintiff from also pursuing a remedy in tort for retaliatory discharge. In Wyatt, the court discussed Kelsay’s allowance of punitive damages where an employer, after the date of Kelsay, discharges an employee for filing a workers' compensation claim. After noting that the Kelsay opinion did not expressly limit its decision to at-will employees, the Wyatt court reasoned that punitive damages should also be available against an employer who similarly discharges an employee protected by a union contract, even though such a contract is supposed to protect against discharges which were not for just cause. (Wyatt v. Jewel Cos. (1982), 108 Ill. App. 3d 840, 842, 439 N.E.2d 1053.) The court in Midgett adopted the reasoning of Wyatt and expressly rejected the contention that the availability of a tort action would undermine Federal labor law policy favoring the arbitration of labor disputes covered by a collective bargaining agreement. (Midgett v. Sackett-Chicago, Inc. (1983), 118 Ill. App. 3d 7, 9, 454 N.E.2d 1092.) Rather, the court stated that the recognition of a cause of action in tort would merely allow an employee an additional remedy in areas where strong public policies, as opposed to purely private interests, are involved. 118 Ill. App. 3d 7, 9, 454 N.E.2d 1092.

Recently, the Illinois Supreme Court reviewed the first district’s decision in Midgett v. Sackett-Chicago, Inc. (1983), 118 Ill. App. 3d 7, 454 N.E.2d 1092, and agreed with its conclusion that the victim of a retaliatory discharge has an action in tort, independent of any contract remedy the employee may have based on the collective bargaining agreement. (Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 149-50.) In discussing Kelsay, the court noted that an essential factor in providing the action for retaliatory discharge was a recognition of the importance of permitting punitive damages to dissuade an employer from engaging in the practice of discharging an employee for filing a workers’ compensation claim. (105 Ill. 2d 143, 149-50; Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 186-87, 384 N.E.2d 353.) The court concluded that it would be unreasonable to immunize from punitive damages an employer who unjustly discharges a union employee, while allowing the imposition of punitive damages against an employer who unfairly terminates a nonunion employee, since “[t]he public policy against retaliatory discharges applies with equal force in both situations.” Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143,149-50.

In view of our supreme court’s holding in Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, we are compelled to reverse this cause and remand it to the circuit court for further proceedings. All counts of plaintiff’s complaint were dismissed for failing to exhaust his contractual remedies. However, the supreme court in Midgett expressly stated that a “plaintiff, however, need not plead the exhaustion of contract remedies to bring an action in tort.” (105 Ill. 2d 143, 152.) With respect to the tort of retaliatory discharge, plaintiff must only allege a retaliatory discharge and that the discharge violated a clear public policy. (105 Ill. 2d 143, 152; Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 134, 421 N.E.2d 876.) Count I against Swift sufficiently alleged these two elements. In this regard, we reject defendants’ argument that the elements of an action for retaliatory discharge were not alleged because plaintiff was not discharged but was merely indefinitely suspended. (See Bryce v. Johnson & Johnson (1983), 115 Ill. App. 3d 913, 921, 450 N.E.2d 1235.) This contention was contested by plaintiff in his response to the motion to dismiss and in his supporting affidavit, and thus is merely a disputed question of fact. Under these circumstances, the lower court is bound to deny the motion if the action is one in which a party is entitled to a trial by jury and a jury demand has been filed by the opposite party in apt time. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(c); Venturini v. Affatato (1980), 84 Ill. App. 3d 547, 555, 405 N.E.2d 1093.) In the present case, plaintiff in fact filed a timely jury demand. The lower court was therefore correct in its initial denial of the motion to dismiss on the ground that a question of fact was presented.

In reversing this cause, we do not reach the question whether counts II through IV adequately stated causes of action in conspiracy against the named individual defendants. Upon remand, the parties may file further pleadings on this question if they so desire.

Accordingly, the order of the circuit court of Kane County dismissing plaintiff’s complaint is reversed and remanded for further proceedings.

Reversed and remanded.

LINDBERG and REINHARD, JJ., concur.


author: PRESIDING JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY WAYNE CAMPBELL, Defendant-Appellant.
    Fourth District
    No. 4—84—0404
    Opinion filed December 31, 1984.
    Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Perry Lee Miller, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On May 31, 1984, following an evidentiary hearing in the circuit court of Champaign County, defendant, Terry Wayne Campbell’s post-conviction petition (Ill. Rev. Stat. 1983, ch. 38, par. 122 — 1) was dismissed. He sought relief from (1) his conviction of burglary entered by that court on October 18, 1982, and (2) his subsequent sentence of five years’ imprisonment. That conviction and sentence had been affirmed by this court on direct appeal in People v. Campbell (1983), 114 Ill. App. 3d 1160 (Rule 23 order). He now appeals the judgment dismissing his post-conviction petition. We affirm.

The evidence at the post-conviction hearing showed that defendant’s counsel refused defendant’s request to seek a substitution of the judge assigned to try the burglary charge. Defendant testified that the counsel seemed to “shrug off” his repeated requests for substitution. Defendant also testified that he had previously appeared before the assigned judge in a juvenile delinquency proceeding, and that judge then told him that if he, defendant, ever appeared before that judge again, that judge would see that defendant would “serve time” in the penitentiary. Defendant maintains that, because of the foregoing, he was deprived of effective assistance at trial.

Defense counsel testified at the hearing that he explained to defendant his reasons for not filing a motion to substitute judges. Counsel stated the reasons were: (1) Counsel was familiar with the judge and the judge made such remarks in almost every case; (2) the judge might appear to recognize defendant, but actually the judge seldom had any recollection of those who pass through his courtroom; (3) even if the judge did remember defendant, he would not let previous appearances influence his disposition of defendant’s current case; and (4) counsel believed that the judge would be more inclined to give a particular, important jury instruction than any judge who would be substituted.

At the conclusion of the post-conviction hearing, the judge hearing that matter concluded that defense counsel probably did merely admonish defendant “not to worry” about the assigned judge and did not give defendant the reasons counsel testified to in the post-conviction proceedings. However, the hearing judge deemed those reasons to be “good and accurate” and probably to be reasonably good strategy to follow. Then, the hearing judge, after having examined the presentence report, concluded, based on defendant’s prior convictions and adjustment on probation, that the sentence imposed was appropriate. The court denied the relief sought in the post-conviction petition.

Unquestionably, an accused in a criminal case has a due process right to be tried before an unbiased judge. (In re Murchison (1955), 349 U.S. 133, 99 L. Ed. 942, 75 S. Ct. 623.) An accused also has a statutory right under section 114 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 114 — 5) to one substitution of judge if the request is timely made and based upon an allegation of prejudice which need not be proved. However, no case called to our attention holds that an accused has an absolute right to a substitution of judge without making a showing of actual prejudice.

An accused also has a sixth amendment right to be represented by counsel or to waive counsel and proceed pro se. However, an accused has no such right to both representation by counsel and to also conduct portions of the proceedings on his own. (Faretta v. California (1975), 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525.) Nevertheless, an accused represented by counsel retains a right to make decisions involving “fundamental rights,” while those strategic matters involving “the superior ability of trained counsel” are left to that counsel. (Jones v. Barnes (1983), _ U.S. _, _, 77 L. Ed. 2d 987, 993, 103 S. Ct. 3308, 3312.) A noted authority describes those decisions involving “fundamental rights” as generally being (1) whether to enter a plea of guilty or not guilty, (2) whether to waive jury trial, (3) whether defendant is to testify in his own behalf, and (4) whether to appeal. 2 LaFave & Israel, Criminal Procedure sec. 11.6, at 53 (1984).

In People v. Chatman (1967), 36 Ill. 2d 305, 223 N.E.2d 110, a defendant had been convicted of rape in each of two successive bench trials before the same judge. During the first case, the trial judge had made statements indicating a substantial prejudice against the defendant. Defendant appealed the second conviction. The supreme court held that the failure of court-appointed defense counsel to either “move for a change of venue based on the prejudice of the trial judge or demand a trial by jury” constituted incompetence of counsel and was not merely trial tactic. (Emphasis added.) (36 Ill. 2d 305, 309, 223 N.E.2d 110, 112.) Apparently, defense counsel had earlier permitted the defendant to waive trial by jury. Notably, the supreme court indicated that the right of the accused to a fair trial could have been upheld by either a substitution of judge “or” obtaining a trial by jury. (Emphasis added.) The court thus indicated that the existence of a jury was a substantial protection to an accused even when the trial judge was prejudiced.

No precedent has been called to our attention indicating that the question of whether to seek a statutory peremptory right of substitution of judges is beyond the realm of strategic or tactical decision of counsel. We see no reason why it should be in a case such as this, where the expected interpretation of the judge on legal points is significant. Only “trained counsel” can make wise decisions on such matters. While counsel should consider the desires of the accused, the ultimate decision should be left to the discretion of counsel.

That discretion was not abused here. The indications that the judge would likely be prejudiced was slight. The reasons for the decisions of trial counsel were deemed to be sound by the hearing judge and appear to us in the same light. Defendant was not deprived of effective assistance of counsel.

Because of our decision that defendant suffered no deprivation of right, we need not address the contention of the State that (1) any request by defendant for substitution of judge was already untimely when relayed to counsel, and (2) the question of possible deprivation of effective assistance of counsel was waived by failure to raise it on the direct appeal from the conviction and sentence.

We affirm.

Affirmed.

McCULLOUGH and TRAPP, JJ., concur.