People ex rel. Illinois State Dental Soc. v. Norris

• Decision Date: 31 December 1979
• Docket Number: No. 78-578,78-578
• Citation: People ex rel. Illinois State Dental Soc. v. Norris, 398 N.E.2d 1163, 79 Ill.App.3d 890, 35 Ill.Dec. 213 (Ill. App. 1979)
• Parties: , 35 Ill.Dec. 213 PEOPLE of the State of Illinois ex rel. ILLINOIS STATE DENTAL SOCIETY, an Illinois Corporation Not For Profit, et al., Plaintiffs-Appellees, v. William L. NORRIS, Individually and doing business as Pullman Dental Laboratory, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 1163

398 N.E.2d 1163

79 Ill.App.3d 890, 35 Ill.Dec. 213

PEOPLE of the State of Illinois ex rel. ILLINOIS STATE DENTAL SOCIETY, an Illinois Corporation Not For Profit, et al., Plaintiffs-Appellees, v. William L. NORRIS, Individually and doing business as Pullman Dental Laboratory, Defendant-Appellant.

No. 78-578.

Appellate Court of Illinois, First District, Third Division.

Dec. 31, 1979.

Sheldon Gardner, Richard Kuhlman, Foss, Schuman & Drake, Chicago, for defendant-appellant.

Peterson, Ross, Schloerb & Seidel, Russell M. Pelton, Jr. and Pat Chapin, Chicago, for plaintiffs-appellees.

McGILLICUDDY, Justice:

This action was brought on June 27, 1977, by the People of the State of Illinois upon the relation of the Illinois State Dental Society (Society) and Robert L. Straub, John L. Manning, Thomas R. Case and Weston O. Olsen, individually and as officers and directors of the Society. The plaintiffs filed a petition for rule to show cause why the defendant, William L. Norris, individually and doing business as Pullman Dental Laboratory, should not be found guilty of contempt of court for having violated a permanent injunction which enjoined him from practicing dentistry as defined in section 5 of the Dental Practice Act. (Ill.Rev.Stat., 1967, ch. 91, par. 60.) The court, sitting without a jury, found the defendant guilty of contempt, sentenced him to ten days' confinement in the Cook County jail and fined him $100.

On appeal the defendant raises the following issues: (1) whether the underlying 1968 injunction against the defendant lapsed before the plaintiff filed its petition for rule to show cause; (2) whether the defendant was proved guilty beyond a reasonable doubt of the unauthorized practice of dentistry; (3) whether the trial court improperly failed to consider the defendant's affirmative defense; (4) whether the defendant's sentence was based on improper and unsubstantiated findings of fact; (5) whether the plaintiff introduced adequate evidence to substantiate its bill of costs; and (6) whether the defendant was improperly barred from taking the depositions of the individually named plaintiffs.

The writ of permanent injunction was issued on January 10, 1968, pursuant to a consent decree of injunction entered on December 29, 1967. The writ specifically prohibited the defendant from:

"(a) Engaging in the practice of dentistry without a license;

(b) Representing to the public by telephone directory listing, business card, sign, or any other means or media that you are able to diagnose, treat, or prescribe for deficiencies or physical conditions of any part of the human mouth (c) Managing, operating, conducting, or being proprietor of a place of business where dental operations are performed directly with the public, either under your individual name or under the name of a company or trade name;

(d) Performing dental operations of any kind directly for the general public, gratuitously or for a fee, gift, compensation or reward, paid or to be paid, either to yourself or to another person or agency;

(e) Offering or undertaking, by any means or method to diagnose or treat conditions of the human mouth, teeth or jaws;

(f) Taking impressions of the human tooth, teeth, or jaws or performing any phase of any operation incident to the replacement of a part of a tooth, a tooth, teeth or associated tissues, by means of a filling, a crown, a bridge, a denture or other appliance;

(g) Furnishing, supplying, constructing, reproducing or repairing, or offering to furnish, supply, construct, reproduce or repair prosthetic dentures (sometimes known as 'plates'), bridges, or other substitutes for natural teeth, to the user or prospective user thereof;

(h) Performing any clinical operation included in the curricula of recognized dental schools and colleges;

(i) Practicing dentistry under the name of a company, corporation, association or trade name;

and from otherwise practicing dentistry in any form; either directly or indirectly, or from holding yourself out as having the right to practice dentistry and from charging and collecting fees, commissions, wages, or payments in any form for any dental services whatsoever rendered or to be rendered by you or any other person in your behalf to the general public."

The plaintiffs' petition for rule to show cause alleged that the defendant had violated the 1968 injunction by the commission of certain acts on or about the dates of November 10, 15, 19, 1976, and December 3, 4, 11, 18, 1976. Attached to the petition were the affidavits of Ann Jankuski and Mary Jo Barnett, investigators paid by the Society.

Mary Jo Barnett testified on direct examination that she called the Pullman Dental Laboratory on November 3, 1976, for an appointment to have a denture made. She said she "believed" the defendant answered the phone and gave her an appointment for November 4, 1976. When she arrived for her appointment, she met the defendant and discussed the price of the services. She was taken into a small office in the lab and seated in a dental chair. Barnett said an impression of her mouth was taken by the defendant and Doctor Fischer, a dentist. She testified that Doctor Fischer examined her mouth and stated the bottom teeth had to be fixed and that the defendant said her lower plate "was pretty bad."

Barnett testified that on her second visit, which she thought to be November 7 or two days after her previous visit, the defendant placed a denture into her mouth and checked the fit. She then paid $90 in cash and was given a receipt. On November 19 Barnett said the defendant showed her into the office and put the dental plate into her mouth. She testified there was a "bad spot" in the plate which the defendant ground down in another room. She was given the completed plate, paid the balance of $85 and received a second receipt.

On cross-examination Barnett was questioned concerning inconsistencies between her testimony at trial and her statements in her affidavit and deposition. Barnett reaffirmed her deposition statement that her affidavit contained all the information she had. She agreed that her affidavit did not indicate that she talked to the defendant when she called the Pullman Dental Laboratory to make her first appointment but said she believed this was reflected in her notes. An inconsistency in dates of appointments was also established. Although Barnett testified on direct examination that she had four appointments and mentioned November 4, 7 and 19, her affidavit set forth dates of November 4, 10, 12, 15 and 19. Sections of the deposition, referred to on cross-examination, concerned dates of November 10 and 12. On redirect the witness, after consulting her notes, said the dates of her visits were November 4, 10, 12 and 19.

Ann Jankuski testified on direct examination that in early December 1976 she called the Pullman Dental Laboratory, gave her maiden name, Ann Rundle, and received an appointment to have upper dentures made. She "believed" her first appointment was on December 3. She testified the defendant checked her mouth and said her bottom teeth were bad and that Doctor Fischer also looked at her mouth and took an impression of her mouth. Jankuski testified that the defendant gave her an appointment for the next day and told her to bring money. She returned on December 4 and said the defendant took a "bite" of her mouth with some red wax. The defendant also took some white material with a red wax top, asked her to bite down, and then gave her an appointment for the following Saturday. Jankuski testified she paid the defendant $80 in cash and was given a receipt. Jankuski stated that when she returned for her third appointment, which was on a Saturday, the defendant told her to go to the back section of the laboratory and said he wanted to see how the teeth fit. She testified the defendant placed the tooth plate into her mouth, said the teeth were a little forward and pushed them back. He then took the teeth out of her mouth, left the room and returned with "some red wax or some material" on the plate. He put the teeth back into her mouth, asked her to bite and told her the teeth would be ready for her next appointment. Jankuski said she returned the following Saturday and at that time the defendant placed the plate in her mouth and said she was "hitting high on one side." She said the defendant took a black piece of paper, "carbon or something," placed it between the plate and her teeth and told her to bite. The defendant left the room twice with the teeth and returned to place them back in her mouth. The witness said she told the defendant the plate felt fine, paid him approximately $90 and was given another receipt. Jankuski further testified that with the exception of her first visit, she did not see Doctor Fischer.

Doctor Charles Fischer testified as a defense witness and said he had been licensed to practice dentistry for approximately 50 years. He said he rented office space from the defendant and that the front part of his dental office is also part of the Pullman Dental Laboratory. Doctor Fischer said the defendant helped him as a dental assistant but was not paid for those services. He testified that he had never seen the defendant take an impression and said the defendant mixed the materials for impressions but that he, not the defendant, took the impressions.

On cross-examination Doctor Fischer admitted that his name was misspelled by the defendant on the exterior sign for his office and on his printed receipts. Doctor Fischer also admitted that he often did not work on Saturdays. He identified his signature on the work orders for Barnett and Jankuski, said he did not know who completed the specifics on the orders but indicated that the work orders would have been completed per his instruction. He admitted signing several work orders in blank and leaving them on a desk.

The defendant testified that he worked as a dental technician...