author: JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL DeSIMONE, Defendant-Appellant.
    Second District
    No. 81 — 22
    Opinion filed September 10, 1982.

      Mary Robinson and David Morris, both of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Pre-iner, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Defendant, Michael DeSimone, appeals from the imposition of two extended sentences of 60 years each for attempt (murder) (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4(a)) and armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2(a)) to be served consecutively.

Briefly stated, the factual background of this matter reveals that on April 18, 1980, at about 1:30 in the afternoon, an unmasked man carrying a gun entered the medical offices of Dr. Robert C. Lynch. The man, who was identified at trial as defendant, pointed the gun at the nurse, Mrs. Stefenhagen, announced a robbery and ordered the nurse and Laurie Lansman, a patient waiting in the anteroom, to the back of the office complex. At that point a second man, wearing a mask, walked in.

Dr. Lynch was in the main office, bent over his brief case, looking for his glasses, when a loud explosion like cherry bombs going off in his ears occurred. He felt a terrible pain and turned to find defendant, Michael DeSimone, holding a gun in his face. Dr. Lynch had been shot in the back of the head at the base of the skull and was bleeding very badly. Defendant ordered Dr. Lynch down the hall with the others. Dr. Lynch, Nurse Stefenhagen and Laurie Lansman were ordered to lie down. Their hands and ankles were bound with tape.

Defendant ordered one of Dr. Lynch’s employees, Margaret Callahan, to open the cash register in the main office. She later discovered $70 was missing from that cash register. Laurie Lansman found $60 missing from her purse. As the intruders left, Dr. Lynch asked them to call an ambulance. They answered with an obscene remark. Dr. Lynch freed himself after a few minutes and called the police.

The jury found defendant guilty of attempt (murder) (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4(a)), aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(1)), armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2(a)) and armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2), all relating to Dr. Lynch. Defendant was found not guilty of charges for armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2(a)) and armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2) relating to Margaret Callahan and Laurie Lansman. Motion for a new trial was argued and denied.

In sentencing, the court found that no mitigating factors were present (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.1) and that the following aggravating factors were present: infliction of serious bodily harm, a prior history of delinquency and crime including a prior murder conviction, the receipt of compensation for the crimes in the form of the robbery proceeds and the necessity to deter others. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(a).) The court found that extended terms of 60 years each for armed robbery and attempt (murder) were necessitated by the exceptionally brutal and heinous behavior of the defendant in shooting Dr. Lynch at close range from behind. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)(2).) Citing section 5 — 8—4 of the Unified Code of Corrections (hereinafter cited as Corrections Code), the court further found that consecutive sentences were appropriate because the defendant caused severe bodily harm during his commission of a Class X felony and, based on the nature of the conduct and defendant’s history, consecutive sentences were required to protect the public from further criminal conduct by the defendant. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—4.) This appeal was timely filed.

As stated above, the trial judge did include in his enumeration of the aggravating factors which he found to be present the receipt of compensation for the crimes in the form of the robbery proceeds. Defendant contends that this was error, and we agree. (People v. Conover (1981), 84 Ill. 2d 400, 405.) In Conover, the sentences imposed were for burglary and theft over $150, and it appears evident that in Conover the trial court did give weight to the erroneous consideration of receipt of compensation as an aggravating factor under section 5— 5 — 3.2 of the Corrections Code. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2.) The supreme court concluded that, since they could not determine the weight which the trial court had accorded to that factor, it was necessary to remand the cases for resentencing.

A review of the total circumstances of the present case, particularly the trial judge’s remarks at the time of sentencing, leads us to conclude that, while this factor was erroneously included by the trial court as an aggravating factor, its presence was of no significance in the trial judge’s determination of the sentence to be imposed on defendant. The court considered each of the mitigating factors set forth in section 5 — 5—3.1 of the Corrections Code (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.1) and found not only that the evidence failed to show the existence of any mitigating factors but also that, with reference to a number of them, the evidence was to the contrary. In addition, the court found that the defendant had inflicted serious bodily harm or injury to another person, that the defendant had a history of serious prior delinquency and criminal activities including a prior murder conviction and that the sentence was necessary to deter others from committing the same crime. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2.) The record further discloses that the defendant did not show any remorse but rather demonstrated a deliberate and calculated attitude of contempt for the judicial system.

Having concluded that the weight given by the trial judge to the factor of receipt of compensation for the commission of the crime was insignificant and did not lead to the imposition of a more severe sentence, we determine the error to be harmless. See People v. Hicks (1981), 101 Ill. App. 3d 238, 244. But see People v. Hunt (1981), 100 Ill. App. 3d 553, 557-58; People v. Teague (1981), 101 Ill. App. 3d 993, 996.

Defendant next contends that the trial court erroneously concluded that the offense of attempt (murder) was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty and the resultant sentence for that offense, taken together with the judge’s imposition of consecutive sentences, constituted an abuse of discretion by the sentencing judge.

Defendant suggests that, based on decisions of other jurisdictions, there must be evidence that defendant’s conduct incorporated some idea of torture or the unnecessary infliction of pain upon the victim to cause defendant’s conduct to fall within the meaning of the phrase “exceptionally brutal or heinous behavior indicative of wanton cruelty.” (State v. Clark (La. 1980), 387 So. 2d 1124, cert. denied (1981), 449 U.S. 1103, 66 L. Ed. 2d 830, 101 S. Ct. 900; Williams v. State (Fla. 1980), 386 So. 2d 538.) Such a requirement was rejected by the Illinois Supreme Court in People v. LaPointe (1981), 88 Ill. 2d 482, 501, and by this court in People v. Winston (1982), 106 Ill. App. 3d 673, 687-88. The supreme court in La Pointe stated:

“ ‘Heinous’ is defined by Webster’s Third New International Dictionary (unabridged) as ‘hatefully or shockingly evil: grossly bad: enormously and flagrantly criminal’; ‘brutal’ includes ‘grossly ruthless,’ ‘devoid of mercy or compassion: cruel and cold-blooded.’ Clearly, in our opinion, the statute does not limit the imposition of a sentence of natural life imprisonment [on the basis of ‘exceptionally brutal or heinous behavior indicative of wanton cruelty’] to only those murders involving torture or the infliction of unnecessary pain.” (88 Ill. 2d 482, 501.)

The court in La Pointe further stated that an extended sentence was not an abuse of discretion where the defendant convicted of murder “acted with premeditated, cold-blooded deliberation ***.” (88 Ill. 2d 482, 501.) In La Pointe the decedent had been shot twice in the head and neck from the rear and at close range. 88 Ill. 2d 482, 488.

This is quite similar to the behavior of the defendant in the instant situation. There was competent evidence from which the trial court could have concluded that defendant shot Dr. Lynch in the back of the head deliberately and with premeditation at a time when the doctor was unaware of the presence of the defendant and was innocently reaching into his brief case for his glasses. Defendant’s testimony that he thought the doctor was reaching for a gun could properly be rejected by the trial court as the trier of fact. The fact that Dr. Lynch did not die from the wound inflicted by the defendant was merely fortuitous considering that the defendant shot him in the back of the head at close range and then left him bleeding profusely, bound hand and foot. These circumstances are sufficient to distinguish the instant matter from People v. Schlemm (1980), 82 Ill. App. 3d 639, 650-51, cert. denied (1981), 499 U.S. 1127, 67 L. Ed. 2d 115, 101 S. Ct. 948, cited by defendant, where the appellate court refused to uphold the extended term sentences imposed for concealment of a homicide where the accompanying behavior was found not to have been exceptionally brutal or heinous. In view of the totality of the circumstances in this matter, the trial court could find both the attempt (murder) and the armed robbery to be accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.

Defendant also argues that because of his age the sentences imposed were the equivalent of a life sentence and thus violated section 5 — 8—1(a)(1) of the Corrections Code (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(1)), which precludes a term of natural life absent a murder conviction. This argument does not have merit. People v. Butler (1979), 78 Ill. App. 3d 809, 818.

The determination and imposition of a sentence involves considerable judicial discretion. Recent decisions have emphasized that the standard of review to be applied in determining whether a sentence is excessive is: Did the trial court abuse its discretion in imposing the-sentence? People v. La Pointe (1981), 88 Ill. 2d 482, 492; People v. Robinson (1980), 83 Ill. 2d 424, 429; People v. Cox (1980), 82 Ill. 2d 268; People v. Perruquet (1977), 68 Ill. 2d 149, 153-54.

The Corrections Code (Ill. Rev. Stat. 1979, ch. 38, par. 1001 — 1—1 et seq.) vests a wide discretion in sentencing judges in order to permit reasoned judgments based upon the circumstances of each case. (People v. La Pointe (1981), 88 Ill. 2d 482, 492.) The trial court is normally the proper forum for the determination of a sentence, and the trial judge’s decision regarding sentencing is entitled to great deference and weight. (People v. La Pointe (1981), 88 Ill. 2d 482, 492-93; People v. Perruquet (1977), 68 Ill. 2d 149, 154.) In People v. La Pointe, the supreme court noted that a trial judge is not required to detail for the record the process by which he strikes an appropriate balance between protection of society and rehabilitation of the offender. The record need only indicate that the court “carefully considered the evidence within the prescribed statutory framework, including the statutory factors in mitigation and aggravation, the presentence investigation, the credibility and demeanor of the witnesses, the defendant’s premeditation and deliberation, and the total absence of remorse on his part.” 88 Ill. 2d 482, 493.

In the case at bar, the trial court carefully fulfilled these requirements, specifically finding no factors in mitigation and numerous aggravating factors. In addition, the court found that extended terms were appropriate since the offenses were accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. The trial court did not abuse its discretion in sentencing the defendant.

In his supplemental brief, defendant contends that the imposition of the two extended terms was illegal for two reasons: (1) the imposition of two extended sentences in this case violated the legislative intent behind the extended term statute, violated .due process and equal protection and was in contradiction to the sentencing philosophy of the Illinois Supreme Court; and (2) the multiple use of a finding of infliction of great bodily harm to both extend the two sentences imposed in this case and to have them run consecutively was improper. We consider these reasons in reverse order.

Defendant argues that the imposition of both extended and consecutive sentences constituted double enhancement, alleging that the same factors were relied upon by the court in both determinations and citing in support of his position People v. Haron (1981), 85 Ill. 2d 261, People v. Hobbs (1981), 86 Ill. 2d 242, and People v. Donaldson (1982), 91 Ill. 2d 164. We find this argument to be without merit.

Initially, we observe that the cases cited by defendant are inapposite. The imposition of both extended terms and consecutive sentences for the offenses of which the defendant was convicted in this cause is not the “double enhancement” discussed by the Illinois Supreme Court in Harón and Hobbs. In Harón the court rejected the State’s argument that the legislature intended that use of a weapon in a battery should doubly enhance the offense into armed violence (People v. Haron (1981), 85 Ill. 2d 261, 278), and in Hobbs the court rejected the use of 1978 felony theft conviction to enhance a 1979 offense from a misdemeanor, which it otherwise would have been, to a felony and use it again to extend the penalty (People v. Hobbs (1981), 86 Ill. 2d 242, 244-46). In Donaldson, as in Harón, the supreme court was dealing with the offense of armed violence, and the court pointed out that the underlying felony charge, aggravated battery causing great bodily harm, was a necessarily included offense and did not require proof of any facts in addition to those required to prove the offense of armed violence based on the underlying felony of aggravated battery causing great bodily harm. (People v. Donaldson (1982), 91 Ill. 2d 164, 170.) In the case before us, the offenses of attempt (murder) and armed robbery are separate and distinct crimes based upon separate acts each requiring proof of different elements, and defendant does not contend that separate convictions could not be properly entered upon both.

In sentencing defendant for these offenses, the trial court did not use a finding of infliction of great bodily harm to both impose an extended term and have these terms run consecutively. The trial court imposed extended sentences because it found that the defendant’s behavior was exceptionally brutal and heinous. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)(2).) Though it is true that the trial judge considered defendant’s shooting of Dr. Lynch in imposing the extended terms, the callous and cold-blooded manner in which defendant inflicted the injury, not simply the infliction of great bodily harm, was the apparent basis for the imposition of extended terms.

The trial court’s finding that confinement for consecutive terms was required for the protection of the public rested not only on a determination that defendant’s conduct had caused severe bodily injury but also on consideration of defendant’s history and character. (Ill. Rev. Stat. 1979, ch. 38, pars. 1005 — 8—4(a), (b).) Defendant’s past criminal record included a prior murder conviction, and he demonstrated contempt for the judicial process and a total lack of remorse. These elements are separate and distinct from those considered by the trial judge in making his determination to impose extended terms.

Imposition of consecutive sentences under the circumstances of the instant case comports with the applicable statutes. While not raised by the defendant in his appeal, we note that the statute regarding consecutive sentences had been modified, indicating a shift in legislative intent as that intent is expressed in the statutes. Prior to February 1, 1978, section 5 — 8—4(a) of the Corrections Code provided in part, “[t]he court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective.” (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 8—4(a).) Since the offenses in this case were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, the trial court would not have been authorized to impose consecutive sentences under the law prior to February 1978.

In People v. King (1977), 66 Ill. 2d 551, 565, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273, the supreme court recognized that, to a degree, there is a prejudical effect of double punishment in the form of consecutive sentences for crimes arising from multiple acts motivated by essentially the same criminal objective and observed that, in 1973, the legislature had recognized this fact by the enactment of section 5 — 8—4(a) of the Corrections Code (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—4(a)) in the form quoted above. Following the supreme court’s decision in King, however, the legislature saw fit to amend this section of the Corrections Code. Public Act 80— 1099, effective February 1, 1978, added as an exception to the prohibition against consecutive sentences contained in section 5 — 8—4(a), quoted above, the following language “unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, in which event the court may enter sentences to run consecutively.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—4(a).) The sentences imposed in this matter fell within the foregoing exception, since not one but both offenses were Class X felonies and the defendant had inflicted severe bodily injury.

We next consider whether the imposition of two extended term sentences in this matter violated legislative intent, due process and equal protection and was in contradiction to the sentencing philosophy of the Illinois Supreme Court. While we recognize that penal statutes are to be strictly construed in favor of an accused (People v. Bratcher (1976), 63 Ill. 2d 534, 543) and that any ambiguity therein should be resolved in favor of lenity (People v. Hobbs (1981), 86 Ill. 2d 242, 246), the prime consideration in construing a statutory enactment is to ascertain and give effect to the intent of the legislature, and statutes must not be construed so rigidly as to defeat that intent (63 Ill. 2d 534, 543).

Section 5 — 8—2(a) of the Corrections Code provides in relevant part as follows:

“A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 — 8—1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5 — 5—3.2 were found to be present.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2(a).)

Section 5 — 5—3.2(b)(2) of the Corrections Code provides that an extended sentence may be imposed “[w]hen a defendant is convicted of any felony and the court finds that the offense was accompanied by' exceptionally brutal or heinous behavior indicative of wanton cruelty.” Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2(b)(2).

In People v. Evans (1981), 87 Ill. 2d 77, our supreme court considered the foregoing sections of the Corrections Code and concluded that it was the legislative intent expressed therein that, unless the most serious offense of which the offender was convicted was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty, an extended term sentence could not be imposed on a lesser offense of which the offender also stood convicted even though that lesser offense had been accompanied by brutal and heinous behavior.

We note also that in its supplemental opinion in People v. Walsh (1981), 101 Ill. App. 3d 1146, 1150, the first district of this court interpreted Evans as a holding by the supreme court that an extended term may be imposed only for the most serious offense of which the offender stands convicted. In Walsh the defendant had been sentenced to extended terms of imprisonment for both a Class 1 felony and a Class X felony. Defendant contended that he could not be sentenced to an extended term on the Class 1 felony because it did not belong to the “class of the most serious offense of which the defendant was convicted.” There was no suggestion by the defendant in Walsh that both offenses of which he stood convicted had not been accompanied by brutal and heinous conduct indicative of wanton cruelty. Based on Evans, the Walsh court felt compelled to vacate the extended term sentence imposed for the lesser offense.

In People v. Winston (1982), 106 Ill. App. 3d 673, this district of the appellate court, on the basis of the holdings in Evans and Walsh, vacated an extended term imposed for robbery, a Class 2 felony where the court had also imposed an extended term for murder, a higher class. In that case, the court did not reach the additional issue as to whether or not the trial court had, in fact, found the offense of robbery to be accompanied by brutal and heinous conduct indicative of wanton cruelty.

Defendant asserts that it is clear from a reading of section 5 — 8— 2(a) in conjunction with section 5 — 5—3.2 of the Corrections Code (Ill. Rev. Stat. 1979, ch. 38, pars. 1005 — 8—2(a), 1005 — 5—3.2) that the legislature intended that, under any set of convictions pending before a sentencing court on a given date, only one extended term can be imposed for offenses arising out of a single incident.

We disagree. First, we are inclined to believe that the holdings in Walsh and Winston are overly broad interpretations of the supreme court’s decision in Evans. Evans held that section 5 — 8—2(a) of the Corrections Code, when read in conjunction with section 5 — 5—3.2 (Ill. Rev. Stat. 1979, ch. 38, pars. 1005 — 8—2(a), 1005 — 5—3.2), disclosed a legislative intent that an extended term could not be imposed upon an offender unless the most serious offense of which he was convicted was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. It did not suggest, nor do we read those provisions of the Corrections Code as suggesting, an intent that only one extended term could be imposed or, for that matter, that an extended term could not be imposed for a lesser offense accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty so long as the most serious offense of which defendant stood convicted was also accompanied by such behavior.

However, even if Walsh and Winston represent a correct statement of the law, neither they nor Evans support the contention the defendant makes here that the legislature intended that, under any circumstances, only one extended term can be imposed upon a defendant for convictions of multiple offenses arising out of a single incident.

Defendant’s reading of the statute is too restrictive. In order to determine the intent of the legislature, the statute must be considered as a whole and all pertinent parts reviewed. (People v. Hairston (1970), 46 Ill. 2d 348, 356, cert. denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1658; People v. Meints (1976), 41 Ill. App. 3d 215, 219.) In addition to the foregoing provisions, we point out that section 5 — 8—4(c)(2) of the Corrections Code (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—4(c)(2)) provides in substance that the aggregate of consecutive sentences shall not exceed the sum of the maximum terms authorized under section 5 — 8—2 (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8— 2), the extended term section, for the two most serious felonies involved. Section 5 — 8—4(c)(2) plainly indicates a legislative intent that more than one extended term may be imposed and, under proper circumstances, such sentences can be made consecutive to one another.

In the case at bar, both offenses were Class X felonies, and, under the provisions of section 5 — 8—2(a) (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2(a)), a sentence of 60 years for each offense was permissible. The sentences imposed by the court fell within the restrictions of section 5 — 8—4(c)(2) (Ill. Rev. Stat. 1979, ch. 38, par. 1005— 8 — 4(c)(2)) in that the aggregate of the consecutive sentences did not exceed the sum of the maximum terms authorized under the extended term section for the two most serious felonies involved.

We find no prohibition in Evans, Walsh or Winston barring imposition of more than one extended term when both offenses for which the defendant stands convicted fall within the class of the most serious offense. We further conclude that section 5 — 8—2(a) of the Corrections Code read in conjunction with sections 5 — 5—3.2 and 5— 8 — 4(c)(2) (Ill. Rev. Stat. 1979, ch. 38, pars. 1005-8-2(a), 1005-5-3.2 and 1005 — 8—4(c)(2)) makes evident that extended terms may be imposed for more than one offense when all of the offenses are within the class of the most serious offense committed by the defendant and all of the offenses for which the extended terms are imposed are accompanied by brutal and heinous behavior indicative of wanton cruelty.

As an alternative argument, defendant maintains that the imposition of extended terms for more than one offense upon defendants convicted of crimes of the same class, but not permitting them for multiple convictions of offenses of different classes, would deny defendant both equal protection and due process of law and would thus be unconstitutional citing People v. Bradley (1980), 79 Ill. 2d 410. As the court stated in Bradley, the equal protection clause of the Federal Constitution does not deny States the power to treat different classes of persons in different ways. It requires equality between groups of persons “similarly situated”; it does not require equality or proportionality of penalties for dissimilar conduct. (79 Ill. 2d 410, 416.) The sections of the Corrections Code in question in this case permit the imposition of extended terms for offenses of which an offender stands convicted if accompanied by brutal and heinous conduct indicative of wanton cruelty when such behavior accompanies the most serious offense of which the offender stands convicted. We deem this to be a reasonable classification and discern no unequal treatment here and no violation of the equal protection clause of either the State or Federal constitution.

The legislature, under the State’s police power, has wide discretion to fix penalties for defined offenses subject to the constitutional requirement that a person’s liberty cannot be deprived without due process of law. The standard measure of the proper exercise of the police power is whether the statute is reasonably designed to remedy evils which the legislature has determined to be a threat to the public health, safety and general welfare. (People v. Bradley (1980), 79 Ill. 2d 410, 417.) It cannot be seriously suggested that the imposition of an extended term upon an offender where the offense which he has committed is accompanied by brutal and heinous behavior indicative of wanton cruelty is not an evil which is a threat to the public welfare. There is no violation of the due process clause of either the Federal or State constitution, and the imposition of extended terms for offenses accompanied by such conduct is constitutionally permissible.

The judgments and sentences for attempt (murder) and armed robbery are affirmed.

Affirmed.

HOPF and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE NASH

license: Public Domain

text:
    BARBARA MAGANA, Plaintiff-Appellant, v. JOSEPH ELIE et al., Defendants-Appellees.
    Second District
    No. 82 — 47
    Opinion filed September 10, 1982.

      Chester R. Chostner, Jr., of Rockford, for appellant.
    Thomas E. Greenwald, of Greenwald, Maier & Hudec, P.C., and Kenneth W. Traum, of Kostantacos, Traum and Reuterfors, P.C., both of Rockford, for appellees.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiff, Barbara Magana, brings this interlocutory appeal from the dismissal of her amended complaint for medical malpractice against defendants, Kathryn Shaw Bethea Hospital (Hospital), Dr. Joseph Elie and The McNichols Clinic, Ltd. (Clinic).

THE HOSPITAL

In count IV, directed against the Hospital, the complaint alleged, inter alia, that Dr. Elie was a physician having privileges to practice his profession in the Hospital (the complaint had also alleged the doctor was an employee of the Hospital; however, plaintiff subsequently withdrew that claim and acknowledged Dr. Elie was an independent physician not on the hospital staff); that Elie performed a surgical procedure upon plaintiff in the Hospital; that it was the duty of the Hospital to require physicians granted the privilege of using its facilities to inform patients of the Hospital of the risks involved in surgical procedures to be performed upon them; that had plaintiff been advised of the possible consequences of the surgery she would not have submitted to it; and, that plaintiff was not informed of the risks attendant to the surgery and as a proximate cause of the Hospital’s failure to require the informed consent of patients submitting to surgery therein she suffered injury and damages.

The Hospital’s motion to dismiss the complaint, premised on the grounds it failed to state a cause' of action, was granted by the trial court.

Plaintiff contends the complaint was sufficient to withstand the motion to dismiss asserting a hospital can be charged with negligence for failing to review the medical care being given to a patient under a doctor’s care in the hospital, citing Johnson v. St. Bernard Hospital (1979), 79 Ill. App. 3d 709, 716, 399 N.E.2d 198, 204; Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 333, 211 N.E.2d 253, 261, cert. denied (1966), 383 U.S. 946, 16 L. Ed. 2d 209, 86 S. Ct. 1204. Defendant Hospital argues that the responsibility for informing a patient of the risks of surgery and obtaining the patient’s consent to proceed is solely that of the physician absent, as in this case, an employment relationship between the hospital and physician, citing Green v. Hussey (1970), 127 Ill. App. 2d 174, 262 N.E.2d 156; Ziegert v. South Chicago Community Hospital (1981), 99 Ill. App. 3d 83, 425 N.E.2d 450. The cases relied upon by the parties do not address, however, the particular issue presented by the complaint, that is to say, whether its allegations were sufficient to present an issue of fact as to the claimed negligence of the hospital.

For the purposes of ruling on a motion to dismiss all well-pleaded facts contained in a complaint must be taken as true and all inferences therefrom must be drawn in favor of the nonmovant. (Album Graphics, Inc. v. Beatrice Foods Co. (1980), 87 Ill. App. 3d 338, 344, 408 N.E.2d 1041, 1046; McCauley v. Chicago Board of Education (1978) , 66 Ill. App. 3d 676, 677, 384 N.E.2d 100, 101, appeal denied (1979) , 74 Ill. 2d 586.) 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 proven under the pleadings which would entitle the plaintiff to relief. (Felbinger & Co. v. Traiforos (1979), 76 Ill. App. 3d 725, 731, 394 N.E.2d 1283, 1289; J.J. Harrington & Co. v. Timmerman (1977) , 50 Ill. App. 3d 404, 407, 365 N.E.2d 721, 723.) Although Illinois requires fact rather than notice pleading (Ill. Rev. Stat. 1979, ch. 110, pars. 33(3), 42(2); Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 17), a complaint will not be dismissed if facts essential to its claim appear by reasonable implication and it reasonably informs the defendants of a valid claim under a general class of cases. Central States, Southeast & Southwest Areas Pension Fund v. Gaylur Products, Inc. (1978) , 66 Ill. App. 3d 709, 713, 384 N.E.2d 123, 126; Kramer v. McDonald’s System, Inc. (1978), 61 Ill. App. 3d 947, 956, 378 N.E.2d 522, 531, aff’d (1979), 77 Ill. 2d 323, 396 N.E.2d 504.

It is established that a hospital’s duty to its patients requires it to conform to the legal standard of reasonable conduct in light of the apparent risk. (Greenberg v. Michael Reese Hospital (1980), 83 Ill. 2d 282, 289, 415 N.E.2d 390, 395; Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 331, 211 N.E.2d 253, 257, cert. denied (1966), 383 U.S. 946, 16 L. Ed. 2d 209, 86 S. Ct. 1204; Holton v. Resurrection Hospital (1980), 88 Ill. App. 3d 655, 659, 410 N.E.2d 969, 973.) That duty continues even though the patient is being treated by an independent physician. (Holton v. Resurrection Hospital (1980), 88 Ill. App. 3d 655, 659, 410 N.E.2d 969, 973; Johnson v. St. Bernard Hospital (1979), 79 Ill. App. 3d 709, 716, 399 N.E.2d 198, 204, appeal denied (1980), 79 Ill. 2d 631.) The standard of care to which a hospital must adhere in order to meet its duty is a factual question capable of proof through a wide variety of evidence including expert testimony, hospital bylaws, statutes, accreditation standards, customs and community practice. (Greenberg v. Michael Reese Hospital (1980), 83 Ill. 2d 282, 289, 415 N.E.2d 390, 395; Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 331, 211 N.E.2d 253, 257, cert. denied (1966), 383 U.S. 946, 16 L. Ed. 2d 209, 86 S. Ct. 1204; Smith v. St. Therese Hospital (1982), 106 Ill. App. 3d 268, 274, 435 N.E.2d 939, 943; Johnson v. St. Bernard Hospital (1979), 79 Ill. App. 3d 709, 716, 399 N.E.2d 198, 205, appeal denied (1980), 79 Ill. 2d 631.) Failure of a hospital to meet the requisite standard of care to a patient can expose it to liability for damages proximately caused by such failure. Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 331, 211 N.E.2d 253, 260, cert. denied (1966), 383 U.S. 946, 16 L. Ed. 2d 209, 86 S. Ct. 1204.

It is also established that a physician has a duty to inform patients of the foreseeable risks and results of a given surgical procedure and the reasonable alternatives to such procedure. (Taber v. Riordan (1980), 83 Ill. App. 3d 900, 904, 403 N.E.2d 1349, 1353, ap peal denied (1980), 81 Ill. 2d 599; Miceikis v. Field (1976), 37 Ill. App. 3d 763, 767, 347 N.E.2d 320, 324, appeal dismissed (1976), 63 Ill. 2d 557; Ohligschlager v. Proctor Community Hospital (1972), 6 Ill. App. 3d 81, 88, 283 N.E.2d 86, 89, rev’d on other grounds (1973), 55 Ill. 2d 411, 303 N.E.2d 392; Green v. Hussey (1970), 127 Ill. App. 2d 174, 183, 262 N.E.2d 156, 161.) The physician has a duty to disclose to the patient those risks, results or alternatives that a reasonable medical practitioner of the same school, in the same or similar circumstances, would have disclosed. (Miceikis v. Field (1976), 37 Ill. App. 3d 763, 767, 347 N.E.2d 320, 324, appeal dismissed (1976), 63 Ill. 2d 557; Green v. Hussey (1970), 127 Ill. App. 2d 174, 183, 262 N.E.2d 156, 161.) The failure of the physician to conform to the requisite standard of disclosure must be proved by expert medical evidence and the failure to disclose must proximately cause plaintiff’s injury. Absent such evidence, no liability will follow. Taber v. Riordan (1980), 83 Ill. App. 3d 900, 904, 403 N.E.2d 1349, 1353, appeal denied (1980), 81 Ill. 2d 599; Ohligschlager v. Proctor Community Hospital (1972), 6 Ill. App. 3d 81, 88, 83 N.E.2d 86, 89, rev’d on other grounds (1973), 55 Ill. 2d 411, 303 N.E.2d 392; Green v. Hussey (1970), 127 Ill. App. 2d 174, 183, 262 N.E.2d 156, 161.

Whether the standard of care which defendant Hospital must meet to satisfy its duty to its patients provides that the Hospital require physicians to whom it grants use of its facilities to advise their patients of the risks attendant to treatment therein cannot be determined as a matter of law. It, instead, must be determined by proof of the requisite standard by which the Hospital’s conduct is to be measured. (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 255-56, 381 N.E.2d 279, 282.) If that standard of care provides that the Hospital take affirmative steps to require the physician to advise his patients of risks attached to the medical procedures to be carried out in the Hospital, a failure to meet such standard could be negligence. See Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 333, 211 N.E.2d 253, 260, cert. denied (1966), 383 U.S. 946, 16 L. Ed. 2d 209, 86 S. Ct. 1204.

The supreme court noted in Darling v. Charleston Community Memorial Hospital'.

“ ‘The conception that the hospital does not undertake to treat the patient, does not undertake to act through its doctors and nurses, but undertakes instead simply to procure them to act upon their own responsibility, no longer' reflects the fact. Present-day hospitals, as their manner of operation plainly demonstrates, do far more than furnish facilities for treatment. They regularly employ on a salary basis a large staff of physicians, nurses and internes, as well as administrative and manual workers, and they charge patients for medical care and treatment, collecting for such services, if necessary, by legal action. Certainly, the person who avails himself of “hospital facilities” expects that the hospital will attempt to cure him, not that its nurses or other employes [sic] will act on their own responsibility.’ ” [Citation.] 33 Ill. 2d 326, 332, 211 N.E.2d 253, 257.

These comments are equally appropriate where surgical procedures are to be undertaken in a hospital which provides the auxiliary services to the attending physician. Such services may include the operating room, equipment, personnel to assist in surgery, admitting procedures, as well as radiological, pathological, anesthesia and laboratory services. Many, if not most, of these services are charged directly to the patient. As some commentators have noted, these hospital services usually include obtaining the signature of the patient on the informed consent form. Defense of Medical Malpractice par. 4.2 (Ill. Inst. Cont. Legal Educ. 1980); Representing Health Care Institutions par. 22.8 (Ill. Inst. Cont. Legal Educ. 1980).

We conclude count IV against the Hospital should not have been dismissed on the pleadings. It essentially alleges that by failing to require that plaintiff’s physician advise her of the risks and alternates to the surgery to be performed by him the Hospital failed to carry out its duty to plaintiff. “[I]n negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in the light of the apparent risk. What the defendant must do, or must not do, is a question of the standard of conduct required to satisfy the duty.” Prosser, Torts sec. 53, at 324 (4th ed. 1971).

DR. ELIE AND THE CLINIC

Count III of the amended complaint as directed to these defendants alleged, inter alia, that Dr. Elie was a licensed physician employed by the Clinic and plaintiff came under his care in his capacity as a physician; that Dr. Elie performed a surgical procedure upon plaintiff at the Hospital, but that after the surgery he refused to treat plaintiff for infection and swelling near the area of the surgery; that Dr. Elie refused to see plaintiff, even though she made numerous calls and attempts to see him, and told plaintiff he would not see her in the future; that Dr. Elie refused to recommend another doctor or hospital for her treatment although post-operative problems existed. The complaint further alleged that the alleged negligent acts or omissions on the part of Dr. Elie proximately caused aggravation of her condition to plaintiff’s damage.

Defendant’s combined “Motion for Judgment on the Pleadings or in the Alternative to Dismiss or in the Alternative to Strike Appropriate Parts in Respect to the Amended Complaint” was granted by the trial court. As directed to count III the motion noted the complaint attempted to set forth some type of “abandonment” cause of action, but failed to allege facts entitling plaintiff to relief.

In an earlier memorandum of decision, after which count III of the original complaint was dismissed, the trial court noted that the theory of abandonment has not been sustained in Illinois. In its letter to counsel for these defendants regarding their motion to dismiss the amended complaint, the court stated it was not going to consider the abandonment theory.

In this court, defendants acknowledge that medical malpractice theories based upon patient abandonment by their physicians have been recognized in Illinois and other jurisdictions. They argue, however, that to be actionable abandonment must occur at a “critical” stage of treatment and plaintiff failed to so allege, citing, e.g., Clark v. Wichman (1962), 72 N.J. Super. 486, 491, 179 A.2d 38, 41; Lee v. Dewbre (Tex. Civ. App. 1962), 362 S.W.2d 900, 902; Stohlman v. Davis (1928), 117 Neb. 178, 184, 220 N.W. 247, 250; Katsetos v. Nolan (1976), 170 Conn. 637, 368 A.2d 172.

In Illinois a physician has a duty to employ a reasonable amount of care and skill as is ordinarily possessed by members of his profession, and, when a physician refuses to treat a patient needing further treatment, without giving the patient a reasonable time to find substitute care, that duty is breached. (Ritchey v. West (1860), 23 Ill. 329, 331; Longman v. Jasiek (1980), 91 Ill. App. 3d 83, 88, 414 N.E.2d 520, 523, appeal denied (1981), 83 Ill. 2d 570; Church v. Adler (1953), 350 Ill. App. 471, 482, 113 N.E.2d 327, 330; Prichard v. Moore (1897), 75 Ill. App. 553.) The surgeon’s duty to continue treating his patient is not established within the absolute discretion of the surgeon himself, but rather is subject to the standards of the profession. (Longman v. Jasiek (1980), 91 Ill. App. 3d 83, 88, 414 N.E.2d 520, 523, appeal denied (1981), 83 Ill. 2d 570; Church v. Adler (1953), 350 Ill. App. 471, 482, 113 N.E.2d 327, 332.) Whether the physician breached his duty by refusing further treatment is a question of fact. Church v. Adler (1953), 350 Ill. App. 471, 482, 113 N.E.2d 327, 332.

We conclude count III also alleged sufficient facts to withstand the motion to dismiss. As noted in Longman v. Jasiek (1980), 91 Ill. App. 3d 83, 414 N.E.2d 520, “[wjhere injury results from the surgeon’s refusal to continue treatment through postoperative complications as would another professional exercising ordinary skill and care, a cognizable claim arises.” (91 Ill. App. 3d 83, 88, 414 N.E.2d 520, 523.) That is what plaintiff has alleged in her complaint, and if the proof at trial conforms to these allegations, she could be entitled to recover. Church v. Adler (1953), 350 Ill. App. 471, 481,113 N.E.2d 327, 331.

Accordingly, the judgment of the circuit court of Lee County is reversed and the cause remanded for further proceedings.

Reversed and remanded.

REINHARD and VAN DEUSEN, JJ., concur.


author: JUSTICE HOPF

text:
    CONSOLIDATED CABLE UTILITIES, INC., Plaintiff-Appellee, v. THE CITY OF AURORA et al., Defendants.—(COMMONWEALTH EDISON COMPANY et al., Defendants-Appellants.)
    Second District
    No. 81 — 660
    Opinion filed September 2, 1982.
    Rehearing denied October 12, 1982.

      Paul E Hanzlik and Bruce D. Becker, both of Isham, Lincoln & Beale, and Rochelle Cabot and Priscilla C. Sperling, both of Mayer, Brown and Platt, and L. Bow Pritchett, George J. Reithal, and Robert Guritz, all of Chicago, for appellants.
    Donald L. Puckett and John P. Duggan, both of Puckett, Barnett, Larson, Mickey, Wilson and Ochsenschlager, of Aurora, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

Plaintiff, Consolidated Cable Utilities, Inc., brought this action seeking both a declaratory judgment pursuant to section 57.1 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57.1) and injunc-tive relief. The circuit court of Kane County granted the relief sought by Consolidated, giving it access to install cable for television on certain backyard easements. Only defendants Commonwealth Edison Co. (Edison), Northern Illinois Gas Company (NI Gas) and Illinois Bell Telephone Co. (Bell) appeal.

In 1969 Consolidated was granted the franchise to provide cable television service to private customers in both Elgin and Aurora. The franchise ordinances require that Consolidated charge a uniform fee of each user, and in Aurora, provide service where there are at least 50 homes per cable mile; in Elgin, where there are at least 30 homes per cable mile.

Often the cable installation is made by utilizing and leasing poles above ground from public utilities, but certain subdivisions of Aurora and Elgin require, by ordinance, that such services be placed underground. There are 12 such subdivisions involved in this case where Consolidated seeks to install its cable underground on backyard easements.

In late 1979 and early 1980 Consolidated made some effort to obtain homeowner approval for backyard easement access. They hired college students who went door-to-door in an effort to obtain such approval. Eighty to 85% gave their approval for Consolidated’s use of the easements. Other than this Consolidated has not involved the homeowners in this suit.

On September 29, 1980, Consolidated filed suit for declaratory judgment and mandatory injunction against the city of Aurora and the city of Elgin, as well as the three utilities. Consolidated’s complaint sets forth the Elgin and Aurora grants of authority; the specific subdivisions where the easements are located; and its request for use of the easements.

Edison’s motion to strike and dismiss, as well as those filed by NI Gas and Bell, were denied. Edison’s motion set forth several contentions, including the contention that Consolidated was improperly trying to expand by implication the easements in question, so as to include unnamed parties; that the owners of the land on which the easements were located should be joined as parties; and that Consolidated was improperly attempting to exercise the power of eminent domain. All three utilities made application to this court for interlocutory appeal pursuant to Supreme Court Rule 308 (73 Ill. 2d R. 308). The applications were denied.

At trial over 90 plats of survey were tendered by Consolidated and admitted as evidence. These consisted of the plats of the subdivisions that Consolidated sought to enter. Unfortunately, the easements are not described on the plats of survey in any uniform manner. The descriptions range from those that list the specific utilities and location of the easements to those that give no indication of an easement interest. Three of the plats named Consolidated as an easement holder. NI Gas concedes that it does not generally have its pipes in the backyard easements that are in issue here.

The trial court found that (1) Consolidated was a public utility within the contemplation of the plats in question; (2) that the enumerated plats reserve to the municipalities the right to license Consolidated, and the landowners are not indispensable parties;. (3) that an actual controversy exists, that declaratory relief is appropriate; and (4) Consolidated need not go before the Illinois Commerce Commission. The relief granted gave Consolidated the right to use the majority of the easements, and stated that defendants were enjoined from interfering with the installation of the facilities.

On appeal, NI Gas raises five contentions of error: (1) that necessary or indispensable parties (landowners) were not joined; (2) that Consolidated failed to exhaust alternate remedies, so declaratory judgment is an improper remedy; (3) that Consolidated is not a public utility under the Plat Act (Ill. Rev. Stat. 1979, ch. 109, par 1 et seq.); (4) that the terms of the easements prohibit utilization of them by Consolidated; and (5) that Consolidated must go before the Illinois Commerce Commission before seeking relief in the courts.

Edison makes identical contentions, but adds the argument that there was no actual controversy between the parties, as would be required for declaratory relief.

Bell’s contentions on appeal differ because it entered into a written stipulation with Consolidated before trial. The agreement recited Bell’s uninterest in whether or not Consolidated has a right to use the easements. Because Bell had already agreed not to interfere with Consolidated’s installation of facilities, it contends on appeal that the injunction was erroneously entered by the trial court against it. Bell also contends that it has been enjoined from conduct that it never pursued.

First, we address the contention that the trial court erred, as a matter of law, in deciding that the landowners were not indispensable parties. NI Gas contends that the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 26) requires dismissal of this case because Consolidated had “reasonable opportunity” to join all indispensable parties, yet chose not to do so.

Edison urges that a different provision of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 25) requires inclusion of the landowners because, without them, there can be no complete determination of the controversy.

Both Edison and NI Gas urge that case law supports their contentions. In a case not cited by the parties some specific guidelines for what constitutes a necessary party were set forth:

“A necessary party is one whose presence in the suit is required for any of three reasons: (1) to protect an interest which the absentee has in the subject matter of the controversy which would be materially affected by a judgment entered in his absence (Ill. Rev. Stat. 1977, ch. 110, par. 25(1); National Bank v. S.N.H., Inc. (1st Dist. 1975), 32 Ill. App. 3d 110, 121, 336 N.E.2d 115); (2) to reach a decision which will protect the interests of those who are before the court (Ragsdale v. Superior Oil Co. (1968), 40 Ill. 2d 68, 71, 237 N.E.2d 492; see Comment, Indispensable Parties: Holding Absentees Indispensable For The Sake Of Present Defendants, 21 U.Chi. L. Rev. 286-293 (1954)); or (3) to enable the court to make a complete determination of the controversy (Ill. Rev. Stat. 1977, ch. 110, par. 25(1)).” Lerner v. Zipperman (1979), 69 Ill. App. 3d 620, 623, 387 N.E.2d 946, 949.

The application of these principles to the case before us requires first, consideration of whether the absent parties have an interest which will necessarily be affected by the judgment. If so, they must be joined.

Here the absent parties are the owners of the land encumbered by the easement. The word easement has been defined as “a right or a privilege in the real estate of another.” (Beloit Foundry Co. v. Ryan (1963), 28 Ill. 2d 379, 388, 192 N.E.2d 384, 390, citing 16 Ill. L. & Prac. Easements sec. 2 (1962).) By definition, then, Consolidated’s use of the land will affect the landowners’ property. Hence, we believe the absent parties do have an interest which will be affected by the judgment.

The second query is whether reaching a decision will protect those whp are before the court. Obviously, the orders entered here, which enjoined defendant utilities from interfering with Consolidated’s activity, will not protect Consolidated from actions brought by the various homeowners, whether there is merit to the homeowners claims or not. In this sense Consolidated is unprotected. (See Ragsdale v. Superior Oil Co. (1968), 40 Ill. 2d 68, 71, 237 N.E.2d 492.) Therefore, the second test also indicates that the homeowners are necessary parties.

For reasons similar to the above, the third test also requires homeowner participation, for without them, complete determination of the controversy is impossible.

All three requirements having been met, we believe the homeowners are necessary and indispensable parties to this cause, and they must be named in the suit.

In Ragsdale v. Superior Oil Co. (1968), 40 Ill. 2d 68, 237 N.E.2d 492, the failure to join certain leaseholders resulted in the dismissal of a complaint that sought to void a sale of land. Each leaseholder shared an interest in the oil production of the entire tract. Because the effect on the remaining owners, not parties to the suit, would be direct and substantial, the merits could not be reached. The court required all owners and lessees to be made parties because title was in dispute and plaintiff had the burden of proving his title. While the property interest held by the leaseholders differs somewhat from that in the case at bar, the same principles are applicable to the easement claims made by Consolidated: A claim contrary to the record chain of title, or at least a dispute in that regard, requires that all owners of land over which the easement runs, except those few which have granted an easement to Consolidated, be made parties. The question of whether or not Consolidated has a right to use the property should not be decided in a forum that excludes the actual owners of the property. For these reasons we believe that the homeowners are indispensable parties.

It appears the backyard easements in issue here were created when the plats of survey were filed. The exhibits reveal that at least three of the plats specifically name Consolidated. As previously mentioned, the easement terms of the plats vary tremendously. Consolidated did obtain approval from certain of the homeowners. The remaining plats present a different problem. The case law is clear in describing the general rule applicable here. If the easement is limited in scope or purpose, the owner of the property subject to the easement burden is entitled to prevent such burden from being increased. Marlatt v. Peoria Water Works Co. (1969), 114 Ill. App. 2d 11, 14, 252 N.E.2d 403. See also Dickman v. Madison County Light & Power Co. (1922), 304 Ill. 470, 482, 136 N.E. 790.

When, as is the case in certain of the easements here, the easement is reserved for gas, electric and telephone service, the plain meaning of the reservation does not also include other unnamed services. As the Marlatt decision noted, easements must be construed according to their terms.

Because some additional issues raised in this appeal are likely to be raised again on remand, we will briefly address them here.

The trial court found that Consolidated was a public utility within the contemplation of the plats in question. Both Edison and NI Gas urge that the trial court erred in this regard.

It has been determined that cable television corporations are not subject to Commerce Commission regulation as public utilities under “An Act concerning Public Utilities” (Ill. Rev. Stat. 1979, ch. 1112/3, par. 1 et seq.). Cable television is not related to phone services under the Act. (Illinois-Indiana Cable Television Association v. Illinois Commerce Com. (1973), 55 Ill. 2d 205, 220, 302 N.E.2d 334. See also Cammers v. Marion Cablevision (1976), 64 Ill. 2d 97, 354 N.E.2d 353.) Therefore, we believe Consolidated need not have sought relief before the Commission. It should be noted that certain aspects of cable television, such as pole attachment agreements, are subject to Commission regulation. Cable Television v. Illinois Commerce Com. (1980), 82 Ill. App. 3d 814, 403 N.E.2d 287.

Edison and NI Gas contend that the court erred by expanding the scope of the easements beyond their express terms. We agree. Despite the fact that some of the plats indicate easements with no express terms, it is clear that an additional use of an easement is an additional burden on it. (Neely v. Coffey (1980), 81 Ill. 2d 439, 444, 410 N.E.2d 839.) Similarly, it has been held that an easement reserved for “gas, electric and telephone” could not be read to include water service, absent involvement by the property owners. (Marlatt v. Peoria Water Works Co. (1969), 114 Ill. App. 2d 11, 252 N.E.2d 403.) Marlatt also noted that the plat act (Ill. Rev. Stat. 1967, ch. 109, par. 1 et seq.) did not necessarily require a limited public utility easement be expanded by implication to include any public utility.

Bell’s contentions on appeal differ because of the fact that Consolidated and Bell entered into a written stipulation before trial. The agreement recites Bell’s disinterest in whether Consolidated has a right to use the easements or not. Bell contends on appeal that the injunction was erroneously entered by the trial court against them because they had already agreed not to interfere with Consolidated’s installation of facilities. (See Lynch v. Devine (1977), 45 Ill. App. 3d 743, 750, 359 N.E.2d 1137.) Bell contends, therefore, that it has been enjoined from conduct that it never pursued. We believe the injunction was improperly entered against Bell.

Edison and NI Gas also contend that Consolidated is unlawfully exercising powers of eminent domain. While the city, as a municipal corporation, may exercise such powers, we do not believe their franchisees or licensees can. Nor is it clear that Consolidated has tried to exercise such powers. However, Consolidated is a licensee of the city, and may have the right to use whatever easements the city possesses in accordance with their license.

Absent homeowner participation, and evidence from them about the exact nature of the easements through their property, we cannot improve on the trial court’s findings, but only remand for a more specific delineation of which easements Consolidated does, or does not, have the right to use. We believe the trial court’s findings were too broad in scope to be sustained.

For these reasons the findings of the trial court of Kane County are reversed and remanded for proceedings consistent with this opinion.

Reversed and remanded.

SEIDENFELD, P. J, and NASH, J., concur.


author: JUSTICE MEJDA

text:
    SALLY ROBERTA McDANIEL, Plaintiff-Appellant, v. LA SALLE AMBULANCE SERVICE, INC., Defendant.—(DR. MITCHELL SHEINKOP, Defendant-Appellee.)
    First District (5th Division)
    No. 81 — 1495
    Opinion filed August 6, 1982.
    Rehearing denied October 7, 1982.

      Sheldon Hodes, of Chicago, for appellant.
    French and Rogers, of Chicago (Algimantas Kezelis and James M. Ho-fert, of counsel), for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff brought a negligence action against La Salle Ambulance Service, Inc., later amending her complaint to add another negligence count (count II) against Dr. Mitchell Sheinkop, her treating physician. Dr. Sheinkop moved to dismiss count II because the action was barred by the statute of limitations. The court granted Sheinkop’s motion and dismissed count II. Plaintiff appeals.

The sole issue raised on appeal is whether count II sufficiently alleged fraudulent concealment within the meaning of section 22 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, par. 23) to toll the statute of limitations.

On November 6, 1975, plaintiff was involved in an accident which resulted in fractures to both her legs. Dr. Mitchell Sheinkop (hereinafter defendant) was her treating physician at Grant Hospital. On December 24, 1975, while being transported from Grant Hospital by employees of La Salle Ambulance Service, plaintiff’s leg struck the pavement. Plaintiff subsequently discovered she suffered from a drop foot condition. Plaintiff’s attorney wrote defendant seeking his opinion as to whether or not the trauma suffered by plaintiff while being transported by the ambulance service might have caused the drop foot condition. On July 2, 1976, defendant sent a letter to plaintiff’s attorney and to plaintiff advising them that prior to December 24, 1975, plaintiff did not evidence the drop foot condition and that after December 24, 1975, tests confirmed the presence of a right peroneal nerve injury. In a phone conversation with plaintiff’s attorney on August 13, 1976, defendant stated that the wheelchair accident was either a cause or an aggravating factor with regard to the condition. On December 10, 1976, plaintiff filed suit against La Salle Ambulance Service, Inc.

Subsequently, in January 1980, after the statute of limitations for medical malpractice had run against defendant, he stated in his discovery deposition that the July 2, 1976, letter he sent to plaintiff’s attorney was inaccurate and that hospital records indicated that plaintiff had a right drop foot condition as of November 8, 1975 (a little over a month prior to the transportation of plaintiff by the ambulance service). Subsequently, plaintiff amended her complaint to add a count against defendant for negligence. That count also alleged that defendant’s delay in disclosing that plaintiff had a drop foot condition as of November 8, 1975, was concealment within the meaning of section 22 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, par. 23), tolling the statute of limitations which had now run against defendant. The pertinent allegations of the complaint include:

“12. That on July 2, 1976, [defendant] sent a letter to [plaintiff’s attorney] and a copy to plaintiff, wherein he noted that prior to the plaintiff being transported from the hospital on a pass on December 24, 1975, there was no evidence of a drop foot situation or peroneal nerve function absence and that after her foot was traumatized on said occasion, tests confirmed a right peroneal nerve injury.
13. That subsequent to [plaintiff’s attorney] receiving the letter from [defendant] on July 2, 1976, [he] conferred with Defendant, ***, on the telephone on August 13, 1976, and [defendant] stated it was his opinion that the aforementioned wheel chair accident was either the cause or an aggravating factor with regard to the Plaintiff’s present right foot drop condition.”

Defendant brought a motion to dismiss count II asserting that its allegations were insufficient to allege fraudulent concealment and thus the two-year statute of limitations for medical malpractice should apply. (Ill. Rev. Stat. 1975, ch. 83, par. 22.1.) The court agreed and dismissed count II.

Opinion

Plaintiff contends that count II of her complaint stated a valid cause of action for fraudulent concealment against defendant which tolled the statute of limitations. Section 22 of the Limitations Act provides that:

“If a person liable to an action fraudulently conceals the cause of action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he has such cause of action, and not afterwards.” Ill. Rev. Stat. 1975, ch. 83, par. 23.

A cause of action accrues when the plaintiff knows or reasonably should know of an injury and also know or reasonably should know that the injury was caused by the wrongful acts of another. (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 421 N.E.2d 864; see also Urchel v. Holy Cross Hospital (1980), 82 Ill. App. 3d 1050, 403 N.E.2d 545.) A complaint for fraudulent concealment must aver facts which establish affirmative acts or representations on the defendant’s part, which are calculated to and in fact do prevent the discovery of the cause of action. (Zagar v. Health & Hospitals Governing Com. (1980), 83 Ill. App. 3d 894, 404 N.E.2d 496.) A mere misrepresentation of a fact does not constitute fraudulent concealment in absence of a showing that it tended to conceal the cause of action. (Zagar.) A contention that defendant concealed the identity of a wrongdoer rather than the cause of action does not constitute fraudulent concealment for purposes of section 22. Guebard v. Jabaay (1978), 65 Ill. App. 3d 255, 381 N.E.2d 1164.

Plaintiff argues that defendant’s misrepresentation to plaintiff’s counsel that La Salle Ambulance Service either caused or aggravated plaintiff’s drop foot condition concealed her cause of action against defendant for his mistreatment of this condition. We disagree. The instant complaint is insufficient on its face. From it we learn that although defendant first told plaintiff’s attorney that there was no evidence of the drop foot condition prior to December 24, 1975, he later told plaintiff’s attorney on August 13, 1976, that the accident of December 24, 1975, was either a cause or an aggravating factor of plaintiff’s drop foot condition. To aggravate means “ *** to make worse *** ” (Webster’s Third New International Dictionary 41 (1961)) and necessarily implies the prior existence of the condition which has become aggravated. We believe, therefore, that contrary to plaintiff’s assertion, the amended complaint itself states that plaintiff had constructive notice that this condition possibly existed prior to the date she was transported by employees of the ambulance service and that she received this notice from defendant before the two-year limitation for malpractice had run. We conclude, therefore, the complaint does not aver the facts necessary to show that defendant concealed that this condition may have existed prior to December 24, 1975, much less prevented her from discovering her cause of action.

The judgment of the trial court is affirmed.

Affirmed.

SULLIVAN, P. J., and LORENZ, J., concur.


author: JUSTICE WILSON

text:
    PROFESSIONAL MODULAR SURFACE, INC., Plaintiff-Appellee, v. UNIROYAL, INC., Defendant-Appellant.—(AMALGAMATED TRUST & SAVINGS BANK, Defendant.)
    First District (5th Division)
    No. 82 — 0682
    Opinion filed August 13, 1982.
    Rehearing denied October 8, 1982.
    David J. Gibbons and Mary L. Casey, both of Chicago (Chadwell, Kayser, Ruggles, McGee & Hastings, Ltd., of counsel), for appellant.

      Michael J. Kralovec, of Chicago (Feiwell, ■ Galper & Lasky, Ltd., of counsel), for appellee.
   JUSTICE WILSON

delivered the opinion of the court:

This is an interlocutory appeal from the entry of a preliminary injunction by the trial court restraining payment under letters of credit. On appeal defendant Uniroyal (Uniroyal) presents this issue for review, that the trial court erred and abused its discretion in restraining the payment of an unconditional letter of credit on the basis of an alleged breach of an underlying contract. Plaintiff (PMS) raises the additional issue of whether Uniroyal elected to be relieved of its obligations under its agreement with PMS. We reverse. The pertinent facts follow.

PMS and Uniroyal memorialized a contract (Agreement) on August 15, 1979, whereby PMS was to act as the distributor of a product manufactured by Uniroyal. In November 1979 and February 1980, PMS arranged for Amalgamated Trust and Savings Bank (also a defendant in this action) to issue to Uniroyal two separate letters of credit in the total amount of $50,000. Disputes relating to the Agreement arose between PMS and Uniroyal and on November 19, 1981, Uniroyal filed a demand for arbitration. Uniroyal did not make a monetary claim in its demand other than for reimbursement of filing fees and expenses. PMS counterclaimed and sought damages from Uniroyal in an amount in excess of $1,137,424. Uniroyal’s reply to the counterclaim states, among other things, the impossibility of performance on its part under the Agreement and again admitted that it was not making a monetary claim against PMS. These issues are now pending before an arbitration panel. In February 1982, Uniroyal demanded that the Bank pay it the entire $50,000 under the letters of credit, whereupon, PMS filed a verified complaint for injunction.

The allegations of the complaint set forth facts concerning the Agreement, the arbitration proceedings and Uniroyal’s demand under the letters of credit. Both the Agreement and Uniroyal’s demand to the Bank for payment of the sum provided for in the letters of credit are attached to the complaint. The complaint further alleged that PMS would suffer irreparable injury as a result of payment under the letters of credit because its credit would be impaired, it would be unable to continue its business, it would suffer a loss of its business and business opportunities, portions of the arbitration proceedings would be rendered moot, and PMS was without an adequate remedy at law. PMS also presented the court with a verified motion for a temporary restraining order. Uniroyal filed a motion to dismiss and strike complaint for injunction under section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45) and a separate motion to dismiss under section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48). The section 45 motion stated that the complaint was insufficient in law in that: (1) the letters of credit were not attached or set forth in the complaint; and (2) the complaint did not sufficiently allege an absence of an adequate remedy at law should Uniroyal receive payment under the letters of credit, as PMS. failed to allege that the amount could not be subsequently collected from Uniroyal,

Uniroyal’s section 48 motion asserted that the letters of credit were “clean” or “unconditional” since the letters expressly provided that “No documents need accompany the drafts.” The Bank acknowledged that it had no knowledge of what the agreements were between PMS and Uniroyal and that but for an order of the court restraining payment, it would honor the letters of credit because it was not aware of any other documents or agreements that affected the letters of credit. The section 48 motion further asserted that there were no allegations of fraud in the complaint which affected the payment of the “clean” or “unconditional” letters of credit.

The court continued Uniroyal’s motions and immediately entered . a temporary restraining order preventing Uniroyal from receiving payment upon the letters of credit and preventing the Bank from making payment thereon. PMS was ordered to post a bond of $5,000 as a condition for the temporary restraining order.

Uniroyal then presented an emergency motion to vacate the restraining order and requested an immediate hearing on its pending motions to dismiss. This motion was continued along with the motions to dismiss. Subsequently, following argument, the court denied all of these motions, at which time Uniroyal stated that it would not file an answer but would stand on its motions to dismiss and seek an interlocutory appeal. The court then entered a preliminary injunction restraining Uniroyal and the Bank with respect to the letters of credit. The preliminary injunction found that the actions of Uniroyal were fraudulent, even though there is an absence of such allegation in the complaint. The court also released the $5,000 bond required for the temporary restraining order.

Uniroyal’s appeal has asked us to consider the propriety of the following orders: (1) the circuit court’s refusal to rule on its motions to dismiss the complaint before considering plaintiff’s motion for a temporary restraining order; (2) the court’s entry of the temporary restraining order; (3) the court’s denial of its motion to vacate the temporary restraining order; (4) the court’s denial of its motion to dismiss the complaint; (5) the court’s release of the bond posted by PMS with the entry of the temporary restraining order; (6) the court’s entry of the preliminary injunction; and (7) the court’s refusal to require PMS to post a bond for the preliminary injunction or to require the Bank to deposit the funds with the court or into an interest-bearing account.

Opinion

Uniroyal has contended that the court abused its discretion in granting injunctive relief restraining the payment of an unconditional letter of credit on the basis of an alleged breach of an underlying contract, without any allegation of fraud in the transaction and without any showing that PMS has no adequate remedy at law.

The objective of a preliminary injunction is to preserve the status quo pending the disposition of the case on the merits. (Edgewater Construction Co. v. Percy Wilson Mortgage & Finance Corp. (1976), 44 Ill. App. 3d 220, 228, 357 N.E.2d 1307.) However, a preliminary injunction does not decide ultimate issues of the case. (Lonergan v. Crucible Steel Co. of America (1967), 37 Ill. 2d 599, 299 N.E.2d 536.) A trial court is vested with broad discretionary power in granting or refusing a petition for a preliminary injunction, and a court on review will not set it aside unless there has been an abuse of discretion. (See Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1978), 61 Ill. App. 3d 636, 377 N.E.2d 1125; Schwalm Electronics, Inc. v. Electrical Products Corp. (1973), 14 Ill. App. 3d 348, 302 N.E.2d 394.) To justify the issuance of injunctive relief, a party must establish by a preponderance of the evidence that (1) they possess a certain and clearly ascertained right which needs protection; (2) they will suffer irreparable injury without the protection of the injunction; (3) there is no adequate remedy at law for the injury; and (4) they are likely to be successful on the merits. Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 422 N.E.2d 1166; Lake Shore Club v. Lakefront Realty Corp. (1979), 79 Ill. App. 3d 918, 398 N.E.2d 893.

In our review of the record and the preliminary injunction order, we find that the trial court abused its discretion. The Uniform Commercial Code provides that:

“An issuer must honor a draft or demand for payment which complies with the terms of the relevant credit regardless of whether the goods or documents conform to the underlying contract for sale or other contract between the customer and the beneficiary.” (Ill. Rev. Stat. 1981, ch. 26, par. 5 — 114(1).)

The letter of credit is essentially a contract between the issuer and the beneficiary and is recognized as independent of the underlying contract between the customer and the beneficiary. As such, the issuer is under a duty to honor the drafts or demands for payment which comply with the terms of the credit without reference to their compliance with the terms of the underlying contract. (Ill. Ann. Stat., ch. 26, par. 5 — 114(1), Uniform Commercial Code Comment, at 600 (Smith-Hurd 1981).) Illinois has consistently recognized that there should be a strict limitation on judicial interference in the payment of letters of credit. See Edgewater Construction Co. v. Percy Wilson Mortgage & Finance Cory.) Pastor v. National Republic Bank (1979), 76 Ill. 2d 139, 390 N.E.2d 894.

In First Arlington National Bank v. Stathis (1980), 90 Ill. App. 3d 802, 413 N.E.2d 1288, we stated that if the documents presented comply on their face with the terms of the credit, the issuer is not required or even permitted to go behind the documents before honoring demands for payment, and the issuer’s obligation to honor the credit remains intact, even if the underlying agreement has been modified or nonfraudulently breached. (90 Ill. App. 3d 802, 808.) Similarly, in Stringer Construction Co. v. American Insurance Co. (1981), 102 Ill. App. 3d 919, 430 N.E.2d 1, we stated that “[a]n injunction against honor, which interferes with business transactions freely negotiated between the parties [citations], should be limited to situations where the wrongdoing of the beneficiary has so vitiated the entire transaction that the legitimate purposes of the independence of the issuer’s obligation would no longer be served.” 102 Ill. App. 3d 919, 925.

In the pending matter, the letters of credit are “clean” or “unconditional” and contain no reference to the underlying Agreement between PMS and Uniroyal. The trial court’s characterization of Uniroyal’s actions as fraudulent is improper as there was no basis in the record to support such a finding. PMS’ complaint makes no allegations of fraud, either in the factum or in the formation of the underlying contract which would vitiate the entire transaction. (First Arlington National Bank v. Stathis.) If there was a breach of the underlying contract, the Agreement provides for arbitration; and in any event the Bank’s obligation to pay upon presentation of the letters is not subject to this legal defense. Moreover, PMS has failed to sufficiently demonstrate in its complaint, the irreparable injury it would receive or the absence of an adequate remedy at law. If it were judicially determined that Uniroyal is not entitled to this money, PMS presumably could collect a subsequent money judgment against them.

Under the factual circumstances in this instance, we believe it was error to have issued the temporary restraining order and subsequently the preliminary injunction because PMS did not meet its burden of proof to entitle it to this type of relief. Accordingly, we are dissolving the preliminary injunction and remanding this matter to the trial court with directions to dismiss PMS’ complaint because it is insufficient as a matter of law.

The additional issue of whether Uniroyal elected to be relieved of its obligations under the Agreement with PMS is governed by the pending arbitration proceedings and thus is not properly before us. Further, in light of our disposition of this matter, we find it unnecessary to address the remaining issues.

Reversed and remanded with directions.

LORENZ and MEJDA, JJ., concur.