author: JUSTICE TULLY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALLACE BUTCHER, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 88—3119
    Opinion filed December 30, 1992.

      Julius Lucius Echeles, of Chicago (Frederick F. Cohn, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Michael Falagario, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE TULLY

delivered the opinion of the court:

Defendant Wallace Butcher was convicted of two counts of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2(a)) and two counts of aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4(b)(10)) in a jury trial and sentenced to two separate terms of 25 years’ imprisonment for each of the armed robbery counts and two separate terms of 10 years’ imprisonment for each of the aggravated battery counts, all sentences to run concurrently. On appeal, defendant contends that: (1) he was deprived of his constitutional right to effective assistance of counsel; (2) the trial court's denial of his motion for a continuance on the day of trial was improper; (3) the jury was tainted by evidence of defendant’s prior encounters with the police, including having been previously charged with murder; (4) his right of confrontation was denied when the trial court refused to allow him to test an eyewitness’ ability to observe by preventing cross-examination as to the description of persons in the police lineup; and (5) his sentence for aggravated battery was improper. We reverse and remand.

On March 26, 1987, two men robbed the Robert’s Jewelers store in Chicago and brutally beat its owners, Raymond and Evelyn Morris, into unconsciousness. Neither of the victims could identify the assailants. The State claims that one of the offenders was the defendant. Defendant asserts that he had no involvement with this crime and has been identified mistakenly as one of the robbers.

We turn to defendant’s contention that his constitutional right to effective assistance of counsel was denied. The Illinois Supreme Court in People v. Albanese (1988), 125 Ill. 2d 100, 531 N.E.2d 17, adopted the standard set forth by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, for determining whether a criminal defendant was denied effective assistance of counsel. The court in Albanese summarized the Strickland standard as the following:

“Strickland advances a two-component standard. The first component is to prove that counsel’s representation fell below an objective standard of reasonableness such that the trial results were unreliable. Under the second component, the defendant must prove that he was prejudiced by the unprofessional conduct; that is, he must show, but for the attorney’s unprofessional errors, the results of the trial would have been different.” Albanese, 125 Ill. 2d at 106, citing Strickland, 466 U.S. at 687, 694, 80 L. Ed. 2d at 693, 698, 104 S. Ct. at 2064, 2068.

In determining whether counsel’s representation fell below an objective standard of reasonableness, “[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” (Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.) In making this assessment, “[¡judicial scrutiny of counsel’s performance must be highly deferential”; a court must resist the temptation to second-guess counsel’s actions and avoid the distorting effects of hindsight. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.

In making the determination whether there was prejudice by counsel’s unprofessional conduct, a defendant bears the burden of proving that there exists “a probability sufficient to undermine confidence in the outcome” and that, absent counsel’s errors, “the factfinder would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 694-95, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068-69.

In our application of the foregoing authorities to defense counsel’s conduct of the case sub judice, we are mindful of the fact that this case is not one in which the evidence of guilt can fairly be said to be overwhelming. This case is, in fact, one in which the evidence was very closely balanced, for although the State presented witnesses in an attempt to connect defendant with the crime, there were discrepancies among their descriptions of the alleged assailant and also with the physical characteristics of defendant. One witness, Ralph Martinelli, stated the assailant in question had a mustache; two others, Joseph and Mary Eddler, stated that he did not. The defendant had no mustache. None of the witnesses called by the State described a prominent long scar that defendant has on the left side his face and neck. Additionally, the defense called a witness, Tina Fiordaliso, who testified that defendant was not one of the two assailants and that the robbers were of Hispanic origin with “olive” complexions and black hair. The defendant is a non-Hispanic Caucasian with a fair complexion and light brown hair.

Contrary to the State’s assertion, trial counsel’s failure to subpoena and secure the testimony of two additional witnesses who could corroborate and buttress Fiordaliso’s testimony cannot be attributed to a professionally reasonable tactical decision. We cannot conceive of any sound reason for failing to have these witnesses at trial given that the State’s case hinged entirely on the identification of defendant as one of the assailants. Nor do we agree with the State that the consequence of defense counsel’s omission did not prejudice defendant. We believe, given the closeness of this case, that there is a reasonable probability that these additional corroborating witnesses would have raised a reasonable doubt respecting guilt; thus, failure to present them was failure to render effective representation. People v. Solomon (1987), 158 Ill. App. 3d 432, 511 N.E.2d 875.

In addition to the aforementioned error, defense counsel elicited prejudicial, irrelevant, and otherwise inadmissible testimony from defendant that defendant had a prior arrest record for murder. Here again, we can perceive no sound trial stratagem that would call for such an action by defense counsel. We are of the opinion that such testimony compounded the failure of defense counsel to secure the corroborating witnesses to the prejudice of defendant.

In light of the foregoing, the judgment of the circuit court of Cook County is reversed, and this cause is remanded for a new trial. Having determined that defendant is entitled to a new trial, we need not address his other contentions.

Reversed and remanded.

RIZZI and CERDA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTEZ COLBERT, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 89—0295
    Opinion filed December 30, 1992.

      Rita A. Fry, Public Defender, of Chicago (Joseph M. Gump and Robert Guch, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Michael Falagario, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant, Martez Colbert, was convicted of first degree murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1) and conspiracy to commit murder (Ill. Rev.. Stat. 1985, ch. 38, pars. 8 — 2, 9 — 1) in a jury trial. The trial court vacated the conspiracy conviction and sentenced defendant to 40 years’ imprisonment. On appeal, defendant contends that (1) the trial court erred when it permitted the State to introduce evidence of extrajudicial statements made by a nontestifying codefendant; (2) the State failed to prove him guilty beyond a reasonable doubt; and (3) the trial court erred when it permitted the State to introduce prejudicial testimony involving other uncharged crimes. We reverse and remand for a new trial.

On October 29, 1987, Anthony Allen was fatally shot as he entered a liquor store located near the intersection of Bowen and Vincennes Avenues in Chicago, Illinois. Defendant and codefendant, Bradley Johnson, were arrested and charged by indictment, with first degree murder and armed violence (Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 1, 33A — 2). Defendant was further charged by indictment with conspiracy to commit murder. Codefendant confessed to killing Allen. Thereafter, he pled guilty to one count of first degree murder and was sentenced to natural life imprisonment. (See People v. Johnson (1st Dist. 1991), No. 1 — 89—2108 (unpublished order under Supreme Court Rule 23).) At defendant’s trial, the trial court permitted the prosecutor to introduce evidence about inculpatory statements made by codefendant shortly after his arrest which implicated defendant in Allen’s homicide. Defendant was subsequently convicted of first degree murder and conspiracy to commit murder. After vacating the conspiracy conviction, the trial court sentenced defendant to 40 years’ imprisonment. This appeal followed.

Defendant first contends that the trial court erred when it permitted the State to introduce evidence of extrajudicial statements made by a nontestifying codefendant. At trial, Chicago police detective Edward Griffin testified about statements made to him by codefendant. In order to safeguard defendant’s confrontation rights, Detective Griffin redacted his testimony by substituting the word “friend” wherever codefendant mentioned defendant. The following colloquy occurred during the State’s direct examination of Detective Griffin:

“[PROSECUTOR]: Please tell the ladies and gentlemen of the jury what you said to [codefendant] and what he said to you.
[DEFENSE COUNSEL]: Objection, judge.
[THE COURT]: Overrule the objection.
[GRIFFIN]: I told him that he had been identified as the man who had shot Anthony Allen on the corner of Vincennes and Bowen at approximately seven o’clock the evening before.
* * *
He told me that he had been in the area of 91st and Commercial on the south side (of Chicago) when he was picked up by two friends in a yellow Chevy. They then started to drive to the area of 4300 South Calumet. As they drove, his friend who was driving the car said that Anthony Allen had to be killed, and that his friend wanted [codefendant] to do the killing.
[PROSECUTOR]: Did [codefendant] tell you if he said anything in response to that?
[GRIFFIN]: [Codefendant] said that he would do the killing. He said that his friend told him that he would give him enough money to buy a Cadillac if he would do this murder. [Codefendant] said that he wanted a nice Cadillac and nice things like his friend had.
[PROSECUTOR]: In addition to money sufficient to buy a Cadillac, was there anything else that this friend gave to [codefendant]?
[GRIFFIN]: The friend who was driving the car told the friend who was in the front passenger seat to go into the glove compartment box, take out the gun that was in there and give it to [codefendant], who was seated in the back of the car. And he did that.
[PROSECUTOR]: Did he then tell you what vicinity in the city they went to after that was said and done?
[GRIFFIN]: They then drove to the area of 43rd and Cottage Grove, where the two friends dropped [codefendant] off out of the car. [Codefendant] said that he walked around, and before he had gotten out of the car, his friend who was driving the car had given him an old big Durham hat to use to help disguise him.
[Codefendant] said he got out of the car. He walked around and he eventually walked up westbound on Bowen Avenue. He said he walked up to Anthony Allen and shot Anthony Allen in the head. When Anthony Allen fell to the ground, he fired again into his body as he was laying on the ground. After that, he turned and ran.
* * *
Two friends then came up in the Chevy that he had driven down in. He thought they were going to give him a ride back out to 91st and Commercial. Instead, they gave him a twenty-dollar bill and he flagged down a taxicab. He got into the cab and took the cab back to 91st and Commercial. He waited there for a call from his friend to tell him about where he could get the money that was now owed to him for the murder.”

Thereafter, codefendant’s redacted confession was published to the jury as follows:

“On October 29th, 1987, [codefendant] got picked up in a car by two friends. [Codefendant] stated they drove to 43rd and Cottage Grove. On the way there, one of his friends gave [codefendant] a gun and described the man he was supposed to shoot. He was supposed to shoot [Anthony Allen] because [Allen] was a threat to [codefendant’s] friends.
When [codefendant] got to 43rd Street, one of his friends pointed out who [Allen] was and said, ‘Go get the gun. Go get the gun which [codefendant] had hidden in the bushes.’ [Codefendant] got the gun and went up to [Allen] and shot him in the head two times. [Codefendant] was standing two to three feet away from [Allen] when he shot him. After [codefendant] shot [Allen], he threw the gun in the bush nearby and ran to his friend’s apartment building. Then [codefendant] took a cab to the south side (of Chicago) and waited for a friend to call that he was supposed to give [codefendant] money for doing the shooting.”

Defendant first argues that the trial court erred when it permitted the State to introduce evidence of codefendant’s extrajudicial statements because there is insufficient indicia of reliability to rebut the presumption that the statements are unreliable. We disagree. Extrajudicial hearsay testimony may be admitted pursuant to the statement against penal interest exception to the hearsay rule where the declarant’s statements are supported by sufficient indicia of reliability to rebut the presumption that the statements are unreliable. (Lee v. Illinois (1986), 476 U.S. 530, 539, 90 L. Ed. 2d 514, 525, 106 S. Ct. 2056, 2061; People v. Cruz (Ill. Dec. 4, 1992), No. 70407, slip op. at 7.) We find that the State presented sufficient indicia of reliability here to rebut the presumptive unreliability of codefendant’s statements. First, codefendant’s inculpatory statements, in which he implicated himself as well as defendant in Allen’s homicide, were made less than 24 hours after the murder. Moreover, these statements were substantially corroborated by other evidence adduced at trial. Andre Kinnebrew testified that defendant told him that “he was fixing to have [Allen] killed and [codefendant] was going to do it” moments before he witnessed codefendant shoot Allen twice in the head. Kinnebrew’s testimony was substantiated by Reginald Winslow, who testified that he observed Kinnebrew’s conversation with defendant. Winslow further testified that he saw defendant give codefendant money shortly before codefendant approached Allen and shot him twice in the head. The medical testimony established that Allen died from two bullet wounds he sustained to the head. Based on the proximity of codefendant’s statements to investigating officers to Allen’s murder, the close corroboration of other competent evidence presented at trial, as well as the inculpatory nature of codefendant’s statements, we hold that the trial court did not err when it permitted the State to introduce evidence of codefendant’s extrajudicial statements.

Defendant further argues that the State’s use of codefendant’s improperly and insufficiently redacted extrajudicial statements violated his right to confront and cross-examine witnesses against him as guaranteed by the United States and Illinois constitutions. (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §8.) In Bruton v. United States (1968), 391 U.S. 123, 126, 20 L. Ed. 2d 476, 479, 88 S. Ct. 1620, 1622, the Supreme Court held that a defendant’s Federal confrontation rights are violated when incriminating statements of a nontestifying codefendant are introduced at trial. The holding of Bruton, however, was derogated in Richardson v. Marsh (1987), 481 U.S. 200, 211, 95 L. Ed. 2d 176, 188, 107 S. Ct. 1702, 1709, where the Court held that the Federal confrontation clause is not violated by the use of a nontestifying codefendant’s confession which has been redacted to eliminate any reference to defendant’s existence. Independent of Federal constitutional doctrine, Illinois has long recognized that a defendant cannot be prejudiced by incriminating extrajudicial statements of nontestifying codefendants. People v. Duncan (1988), 124 Ill. 2d 400, 413-15, 530 N.E.2d 423, 429-40; People v. Miller (1968), 40 Ill. 2d 154, 158, 238 N.E.2d 407, 409; People v. Clark (1959), 17 Ill. 2d 486, 490, 162 N.E.2d 413, 416; People v. Johnson (1958), 13 Ill. 2d 619, 623-24, 150 N.E.2d 597, 599; People v. Skelly (1951), 409 Ill. 613, 621, 100 N.E.2d 915, 919; People v. Hodson (1950), 406 Ill. 328, 334, 94 N.E.2d 166, 169; People v. Barbara (1946), 395 Ill. 264, 270, 69 N.E.2d 692, 695; People v. Patris (1935), 360 Ill. 596, 601, 196 N.E. 806, 808; People v. Buckminster (1916), 274 Ill. 435, 444-45, 113 N.E. 713, 715-16.

Our supreme court recently addressed the issue here in People v. Hernandez (1988), 121 Ill. 2d 293, 521 N.E.2d 25, and its companion case, People v. Cruz (1988), 121 Ill. 2d 321, 521 N.E.2d 18. In Hernandez and Cruz, the defendants were jointly tried for the murder of a 10-year-old girl. At trial, several witnesses testified about extrajudicial statements made by the defendants implicating each other in the murder. The witnesses’ testimony was redacted with the words “friends,” “friends from Aurora” and “named individuals” to eliminate any reference to the nontestifying defendants. The court held that defendants’ confrontation rights were violated because the nature of the redactions as well as the introduction of acquaintanceship evidence formed an impermissibly incriminating context which established that the terms “friends” and “two named individuals” were merely thinly veiled references to defendants. Cruz, 121 Ill. 2d at 331-32, 521 N.E.2d at 23; see also Hernandez, 121 Ill. 2d at 315-16, 521 N.E.2d at 37.

In the present case, Detective. Griffin testified that codefendant told him that he was picked up and driven to the murder scene by “two friends in a yellow Chevy,” and that “his friend who was driving the car said that Anthony Allen had to be killed.” Moments before, however, Detective Griffin unexplainably stated that a yellow, seventies-model Chevrolet was registered to defendant. From this testimony, it would be impossible for the jury not to conclude that defendant was one of the “friends” referred to in codefendant’s redacted statements. (See Cruz, 121 Ill. 2d at 331, 521 N.E.2d at 23.) We therefore hold that Detective Griffin’s testimony about codefendant’s extrajudicial statements, when considered in conjunction with the other evidence introduced at trial, creates impermissible incriminating implications of defendant’s involvement in Allen’s homicide in violation of defendant’s confrontation rights. Because the evidence here is neither overwhelming nor uncontradicted, we cannot say that this constitutional violation did not contribute to defendant’s conviction. (Chapman v. California (1967), 386 U.S. 18, 23, 17 L. Ed. 2d 705, 710, 87 S. Ct. 824, 827; People v. Fields (1992), 226 Ill. App. 3d 345, 354-55, 589 N.E.2d 788, 795.) Accordingly, this error is not harmless beyond a reasonable doubt.

Defendant asserts that the competent evidence adduced at trial is insufficient to support his conviction, thus precluding his retrial. We disagree. The record here establishes that defendant was present at the scene of Allen’s murder when the murder occurred, that he told a witness to the murder that “he was fixing to have [Allen] killed and [codefendant] was going to do it,” and he was seen giving money to codefendant shortly before codefendant shot Allen twice in the head. After viewing the competent evidence here in a light most favorable to the prosecution, we find that a rational jury could have found defendant guilty of murder and conspiracy to commit murder beyond a reasonable doubt. Accordingly, the proper remedy in the present case is reversal and remand for a new trial.

Because the issue of the admissibility of collateral crimes evidence will likely arise on remand, we shall address defendant’s final contention that the trial court erred when it permitted the State to introduce prejudicial testimony involving other uncharged crimes. At trial, Andre Kinnebrew testified that defendant directed a man named “Meatball” to fire several shots at him approximately one year earlier because a problem had developed between Kinnebrew and defendant. Kinnebrew was not injured in the alleged attack, which was not reported to police. In addition, Arnold Joyner testified that defendant gave him $1,500 and a .357 revolver to kill a man named Sherman Owens. Joyner acknowledged that he neither attempted to kill Owens nor returned the money or revolver to defendant. Over defense counsel’s objections, the trial court admitted Kinnebrew’s and Joyner’s testimony involving uncharged criminal conduct to prove modus operandi.

It is well established that relevant evidence of a defendant’s involvement in collateral crimes is admissible to establish modus operandi, motive, knowledge, intent, absence of mistake, state of mind, identification, common scheme or design, opportunity, or any other material question other than the propensity of the defendant to commit a crime. (People v. Kimbrough (1985), 138 Ill. App. 3d 481, 484-85, 485 N.E.2d 1292, 1295-96.) In order for evidence of collateral crimes to be admitted to prove modus operandi, there must be a clear connection between the other crimes and the crime charged which creates a logical inference that if defendant committed one of the acts, he may have committed the other act. (People v. Woltz (1992), 228 Ill. App. 3d 670, 675, 592 N.E.2d 1182, 1186; Kimbrough, 138 Ill. App. 3d at 486, 485 N.E.2d at 1297.) Based on the almost identical nature of the charges here with the criminal conduct alleged by Kinnebrew and Joyner, we find that the collateral crimes evidence introduced at trial shares sufficient distinctive common features with the charges in the present case so as to create a logical inference that there is a distinctive pattern of criminal behavior which would earmark the alleged offenses as the work of defendant. Furthermore, we cannot say that the probative value of Kinnebrew’s and Joyner’s testimony is outweighed by its prejudicial effect to defendant. We, therefore, conclude that the trial court properly admitted evidence of defendant’s involvement in other uncharged crimes.

Accordingly, the judgment of conviction is reversed, and the case is remanded for a new trial consistent with what is stated herein.

Reversed and remanded.

GREIMAN, P.J., and CERDA, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANGEL FERNANDEZ, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 89—3287
    Opinion filed December 30, 1992.

      Feldman & Halprin, of Chicago (Judith A. Halprin, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William P. Pistorius, and Steven M. Mondry, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE TULLY

delivered the opinion of the court:

Defendant Angel Fernandez was charged with delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. BGVa, par. 1401(a)(2)). After a jury trial, defendant was found guilty and sentenced to 10 years’ imprisonment. It is from the judgment of conviction that defendant appeals to this court.

On appeal, defendant contends that: (1) the trial court erred by failing to properly instruct the jury as to the elements of the offense in view of the entrapment defense; (2) his constitutional right to due process was violated by admission into evidence of recorded conversations, permissible under Federal law, but prohibited under Illinois law, while declining to follow Federal law at sentencing; (3) the trial court erred in granting the State’s motion in limine precluding from evidence, as to the issue of entrapment, the fact that defendant had no record of criminal convictions or arrests; (4) the prosecutor made impermissible and prejudicial remarks in closing argument, thereby tainting the jury; and (5) the State failed to establish a sufficient chain of evidence with regard to the cocaine admitted into evidence. We reverse and remand for a new trial.

We first turn to defendant’s argument that the trial court erred by failing to properly instruct the jury as to the elements of the offense in view of the entrapment defense. Two pattern jury instructions could have been given by the trial court, Illinois Pattern Jury Instructions, Criminal, Nos. 24 — 25.04, 24 — 25.04A (2d ed. 1981) (hereinafter cited as IPI Criminal 2d).

In the case sub judice, the trial court tendered IPI Criminal 2d No. 24 — 25.04 to the jury; however, it failed to also include IPI Criminal 2d No. 24 — 25.04A, the companion instruction. Thus, defendant argues that the jury, while informed of the definition of entrapment by IPI Criminal 2d No. 24 — 25.04, was not informed of the State’s burden to prove, in addition to the elements of delivery of a controlled substance, that the defendant was not entrapped and, therefore, the trial court committed plain error requiring reversal of his conviction. We agree.

Section 3 — 2(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 3 — 2(b)) provides that if a defendant raises an affirmative defense, such as entrapment, “then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense.” (Emphasis added.)

As the defendant did not deny being involved in the transaction involved in this case, the principal issue becomes whether the defendant had been entrapped. Yet, the jury was not informed that the State had the burden of proving beyond reasonable doubt, not only the elements of delivery of a controlled substance, but also that defendant was not entrapped. (See People v. Pegram (1988), 124 Ill. 2d 166, 529 N.E.2d 506.) Thus, the trial court removed from consideration by the jury a disputed issue essential to the determination of defendant’s guilt or innocence. Accordingly, we judge that the failure to properly instruct the jury was reversible error.

In light of the foregoing, defendant’s conviction for delivery of a controlled substance is vacated and this cause is remanded for a new trial. Having determined that defendant is entitled to a new trial, we therefore need not address his other contentions.

Reversed and remanded.

RIZZI and CERDA, JJ., concur.


text:
    AMANDA BROOKS, a Minor, by Pamela Brooks, her Mother and Next Friend, et al., Plaintiffs-Appellants, v. ILLINOIS MASONIC HOSPITAL AND MEDICAL CENTER et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1 — 90—1198
    Opinion filed December 30, 1992.
    David A. Novoselsky, of Chicago, for appellants.
    Cassiday, Schade & Gloor, of Chicago (Timothy J. Ashe, Brian C. Sundheim, and Dale A. Diamond, of counsel), for appellees.
   JUSTICE TULLY

delivered the opinion of the court:

This is a medical malpractice action addressing the sufficiency of a medical expert’s affidavit under Illinois Supreme Court Rule 191 (134 Ill. 2d R. 191) (Rule 191), filed by plaintiffs in opposition to a summary judgment motion by defendant Dr. Tasos Hinaris. Summary judgment was rendered in favor of defendant Dr. Hinaris on the basis that the medical expert’s affidavit, attached to plaintiff’s summary judgment response, was not competent, in that: (1) it failed to create a genuine issue of material fact and (2) the expert named in the affidavit was not disclosed as a testifying expert under Illinois Supreme Court Rule 220 (134 Ill. 2d R. 220) (Rule 220). Plaintiffs appeal from this judgment. The remaining defendants are not parties to this appeal.

Plaintiffs’ third amended complaint alleged that plaintiff Amanda Brooks was born at Illinois Masonic Medical Center, under the care and supervision of defendant Dr. Hinaris. The complaint alleged negligence on behalf of Dr. Hinaris, in that he failed to diagnose and immediately treat a condition known as bilateral hip dysplasia, which allegedly should have been discovered during the post-natal examination.

On February 22, 1988, defendant Dr. Hinaris motioned for summary judgment pursuant to section 2 — 1005 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005). The motion stated that plaintiffs had failed to offer any expert opinion supporting the allegations in the complaint that Dr. Hinaris had breached the applicable standard of care in treating Amanda Brooks. Defendant, therefore, surmised there was no genuine issue of material fact and he was entitled to judgment as a matter of law. The affidavit of Dr. David Ingall was affixed to defendant’s motion, indicating that treatment by defendant met the appropriate standard of care.

On June 28, 1988, plaintiffs filed the affidavit of Dr. Richard Mervis opposing defendant’s motion. Dr. Mervis indicated that the failure by Dr. Hinaris to diagnose and document the condition of congenital hip dysplasia, shortly after Amanda Brooks’ birth, “reflected a deviation from the standard of care.” Later, defendant filed amended interrogatories under Rule 220, requesting the identity of any expert witness to be called by plaintiffs at trial. Plaintiffs indicated that no expert witness had been retained at that point and that Dr. Mervis was merely a “consultant.”

Defendant subsequently filed a motion to strike the affidavit of Dr. Mervis, on the grounds that Dr. Mervis’ testimony was incompetent since he would not be called to testify at trial. Following oral argument on the motion on December 27, 1988, Judge Thomas P. Quinn denied defendant’s motion to strike Dr. Mervis’ affidavit. Defense counsel relied on the case of James v. Yasunaga (1987), 157 Ill. App. 3d 450, 510 N.E.2d 531, for the proposition that the affidavit of an expert, found to be incompetent to testify at trial under Rule 220, cannot be used to oppose a motion for summary judgment. Judge Quinn denied the motion to strike, finding it was “acceptable for plaintiffs to do exactly what they did in this case.” Judge Quinn indicated that a later hearing and ruling on defendant’s summary judgment motion would be made by Judge Sodaro.

On February 16, 1989, defendant presented his motion for reconsideration of the prior denial of his motion to strike, as well as his motion for summary judgment. Judge Sodaro refused to transfer the motion for reconsideration to Judge Quinn and indicated that he would decide both motions simultaneously. Judge Sodaro continued the proceedings, giving plaintiffs 90 days to find another expert, other than Dr. Mervis, who would testify as an expert at trial.

On April 6, 1990, Judge Sodaro granted defendant’s motion for summary judgment, finding that there was no genuine issue of material fact as to defendant’s liability. Judge Sodaro indicated that the affidavit of Dr. Mervis was vague and conclusory in that it did not specify what the defendant Dr. Hinaris should have done in order to discover the congenital hip dysplasia.

According to plaintiffs, the affidavit of Dr. Mervis sufficiently raised a genuine issue of material fact on the applicable standard of care. In support thereof, plaintiffs rely on Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867, which held that summary judgment is proper only where plaintiff fails to present competent expert testimony on the appropriate standard of care. In a medical malpractice case, a plaintiff must demonstrate: (1) the standard of care applicable to defendant’s actions; (2) defendant’s deviation from the appropriate standard of care; and (3) that defendant’s deviation from the standard of care proximately caused plaintiff’s injury. Rohe v. Shivde (1990), 203 Ill. App. 3d 181, 560 N.E.2d 1113.

The plaintiffs, via the affidavit of Dr. Mervis, indicated that Dr. Mervis, if called upon to testify, could testify from personal knowledge that: (1) he is a licensed doctor in the State of Illinois, board certified in the field of pediatrics; (2) he reviewed the medical records of Amanda Brooks; (3) he examined the records which indicated that the defendant doctor examined the minor plaintiff and concluded that her hips were normal; (4) another doctor eventually determined that the minor plaintiff had congenital hip dysplasia; (5) based upon his training and experience, after reviewing the documents, in his opinion: (a) the minor plaintiff suffered from the condition of congenital hip dysplasia at the time of birth; (b) this condition should have been discovered upon physical examination by a qualified doctor; (c) defendant’s failure to observe and document this condition indicated a deviation from the applicable standard of care; and (d) if this condition had been properly discovered, much additional surgical involvement could have been prevented.

Supreme Court Rule 191 reads in part:

“Rule 191. Affidavits in Proceedings Under Sections 2 — 1005, 2 — 619 and 2 — 301(b) of the Code of Civil Procedure
(a) Requirements. Affidavits in support of and in opposition to a motion for summary judgment *** shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a -witness, can testify competently thereto. If all of the facts to be shown are not -within the personal knowledge of one person, two or more affidavits shall be used.” 134 Ill. 2d R. 191.

Summary judgment terminates an injured party’s right to recourse for an alleged wrong and, therefore, it is only proper where the pleadings, depositions, admissions and affidavits on file demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Gatlin v. Ruder (1990), 137 Ill. 2d 284, 560 N.E.2d 586.) In the instant case, we must first consider whether the affidavit of Dr. Richard Mervis sufficiently complied with Supreme Court Rule 191. Secondly, if we deem the affidavit competent, we must determine whether the affidavit sufficiently raised a genuine issue of material fact, such that summary judgment should not have been granted in defendant’s favor.

This court finds that Dr. Mervis’ affidavit complies with the standards set forth in Rule 191. The affidavit is allegedly based upon the personal knowledge of Dr. Mervis and his examination of the medical records of the plaintiff, Amanda Brooks. Furthermore, the affidavit states that if sworn as a witness, Dr. Mervis could competently testify to the statements in the affidavit. Defendant primarily contends that the affidavit is incompetent, based upon the failure of plaintiffs to disclose Dr. Mervis as an expert, pursuant to Rule 220. Although Dr. Mervis was not a Rule 220 expert and was not to be called as a trial witness, a literal reading of Rule 191 requires that the affiant could testify competently, not that affiant will testify. If the supreme court had intended that Rule 191 affiants be disclosed as expert trial witnesses, it could have specifically provided for such.

Furthermore, Dr. Mervis was not barred from testifying and could have been added to supplemental answers to Rule 220 interrogatories. Since the case had not been set for trial, there was no indication that this matter was within 90 days of the trial date. Therefore, it is inconceivable that Dr. Mervis was barred from testifying, since the doctor was not barred under any rule that this court could determine. The fact that plaintiffs’ counsel indicated that Dr. Mervis was a consultant, rather than an expert, really has no relevancy at this juncture.

The final analysis concerns whether or not sufficient facts were alleged in the affidavit, in order to present a genuine issue of material fact. In a medical malpractice action, summary judgment is improper where opposing affidavits raise an issue of fact as to the negligence of the physician. (Pitler v. Michael Reese Hospital (1980), 92 Ill. App. 3d 739, 415 N.E.2d 1255; Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, 262 N.E.2d 450.) Prior to granting summary judgment for defendant, the trial court considered the opposing affidavits of both parties and concluded that there was no issue of material fact, since it would take an “unbelievable eye” to diagnose the infant plaintiff’s condition after birth. Rather than evaluating the factual bases for the opposing affidavits, the trial court made its own determination as to whether defendant could have been negligent.

The trial court in this case did not properly weigh the medical opinion of a qualified physician, whose affidavit complied with Illinois Supreme Court Rule 191. This court holds that adequate facts were alleged in the affidavit of Dr. Mervis, sufficient to raise a genuine issue of material fact as to defendant’s negligence. Therefore, this case will be remanded to the circuit court, and the order entered by the circuit court of Cook County on April 16, 1990, which granted summary judgment in favor of defendant, Dr. Hinaris, is hereby vacated. This matter may proceed further at the circuit court level on its merits.

Reversed and remanded.

GREIMAN, P.J., and RIZZI, J., concur.


text:
    DENNIS TIERNEY, Plaintiff-Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant-Appellee.
    First District (3rd Division)
    No. 1 — 90—1296
    Opinion filed December 30, 1992.
    Rehearing denied January 29, 1993.

      Edward L. Osowski, of Chicago, for appellant.
    Kenneth J. Wysoglad & Associates, of Chicago (John F. Newell, of counsel), for appellee.
   JUSTICE TULLY

delivered the opinion of the court:

This is a personal injury action, arising out of injuries incurred by plaintiff, Dennis Tierney, while working on property owned by defendant, Burlington Northern Railroad. Plaintiff sued for recovery under the Federal Employers’ Liability Act (FELA) (45 U.S.C. §§51 through 60 (1988)), which imposes liability upon railroads for the negligent death or injury of its employees. This cause was originally filed in the United States District Court for the Northern District of Illinois, wherein a summary judgment motion by defendant was denied. The case was then voluntarily dismissed pursuant to an agreement by all parties that all discovery taken in the Federal cause would be applicable to a refiled action. Subsequent to refiling in the circuit court of Cook County, the Honorable Dean J. Sodaro presiding, granted summary judgment in favor of the defendant railroad, finding that plaintiff was not an “employee” of the railroad at the time of his accident, and therefore, he could not bring an action pursuant to FELA.

The central issue on appeal is whether or not plaintiff, Dennis Tierney, was an “employee” of Burlington Northern Railroad within the context of the Federal Employers’ Liability Act (FELA). If we find that there exists a genuine issue of material fact as to this question, then the trial court improperly granted summary judgment in favor of the defendant railroad.

At the time of the accident, plaintiff was employed by BN Transport, Inc. (BN Transport), a wholly owned trucking subsidiary of Burlington Northern, Inc., the holding company which also owns Burlington Northern Railroad. Tierney testified in his deposition that he had worked for BN Transport since 1977, performing various functions: spotter (taking trailers from one area to another to be placed on flat cars); tie-down man; checker; freight delivery and trailer pick up. Plaintiff also rotated among various work locations, primarily facilities at 16th Street, 36th Street and Ogden Avenue in the City of Chicago. Plaintiff spent 50% to 60% of his time working within the railroad yard or at defendant’s 16th Street location in Chicago. The remainder of the time he made over-the-road deliveries of railroad trailers. According to Tierney, the people supervising his work at 16th Street were BN Transport employees completely “responsible to the railroad.” While setting up trains at 16th Street, Tierney reported to Burlington Northern Railroad employees at Ogden Avenue. Tierney was also responsible to the railroad employees who operated the trains, to make sure equipment was securely fastened down.

Plaintiff was injured in 1982 at a BN Transport facility at 36th Street and Pulaski Road (36th Street) in Chicago, which housed BN Transport trailers as well as Burlington Northern Railroad trailers. At this facility, plaintiff believed he dealt with employees of both BN Transport and Burlington Northern Railroad. Supervisory personnel from the railroad also gave Tierney instructions while working at this location. Tierney worked intermittently at this facility between 1977 and 1982. He took orders from dock foremen, dispatchers, and terminal managers, who instructed him on safety and where to put the trailers when they arrived. Tierney did not know whether they were employees of BN Transport or BN Railroad. Tierney also stated that he was directly supervised by Burlington Northern Railroad personnel at the other loading sites where he worked.

Tierney further testified that he believed he was employed by Burlington Northern Railroad during this entire period from 1977 to 1982. Although “BN Transport” was written on the delivery trucks, Tierney assumed he worked for Burlington Northern Railroad, since he received his employee physical by a Burlington Northern doctor and he worked in the Burlington Northern Railroad yards. At 36th Street, Tierney would unload freight from one trailer, transfer it to another trailer and prepare it to be shipped to another destination. At times, he would pick up trailers from the railroad and bring them back to the 36th Street yard. On occasion, he would haul freight which included railroad car equipment.

Although he did not actually work on or about the trains in the yard at 36th Street, he would pick up “piggyback” railroad trailers (containing railroad insignias) from various locations and deliver them to 36th Street. He would also transfer similar cars from 36th Street to other locales. The location at 36th Street was not equipped with tracks, unlike the Ogden Avenue and 16th Street locations, where plaintiff also worked.

On the day of the accident, Tierney “punched in” at 36th Street in a building displaying the “Burlington Northern” insignia. He spoke to the dock foreman, who instructed him as to which trailers to pull away from the dock, which needed to be hooked up, and as road trailers arrived, he told plaintiff where to hook them up for unloading. Just prior to the accident, the dock foreman called plaintiff up onto the dock. As he climbed up a ladder fastened to the dock, it pulled away from the dock and he fell. Plaintiff suffered injuries to his right shoulder and neck area and, as a result, he can no longer function as a truck driver. At the time of the accident, plaintiff was hooking a tractor to a Burlington Northern Railroad trailer, containing railroad parts. According to Tierney, such trailers were customarily picked up from a Burlington Northern Railroad yard. Tierney could not identify the person responsible for attaching the ladder to the dock or whether he worked for Burlington Northern Railroad.

As a preliminary matter, plaintiff asserts that the previous denial of defendant’s motion for summary judgment in the prior Federal court proceeding should have been considered the “law of the case” in the later circuit court proceeding. In the “Stipulation and Agreement” both parties agreed that “all discovery had and taken in the federal cause shall be applicable to the refiled [State] action.” Plaintiff contends that a prior finding of a genuine issue of material fact in the Federal case should have defeated defendant’s similar motion for summary judgment in the circuit court.

It is undisputed by both parties that Federal substantive law applies to actions brought under FELA. (Dice v. Akron, Canton & Youngstown R.R. Co. (1952), 342 U.S. 359, 96 L. Ed. 398, 72 S. Ct. 312.) However, it is well settled that the effect of a voluntary dismissal without prejudice is to render the proceedings a nullity and leave the parties in the same position as if the case had never been filed. (In re Piper Aircraft Distribution System Antitrust Litigation (8th Cir. 1977), 551 F.2d 213.) Although the dismissal in this case rendered all the prior issues and orders a nullity (see National R.R. Passenger Corp. v. International Association of Machinists & Aerospace Workers (1st Cir. 1990), 915 F.2d 43), the parties agreed to preserve “all discovery” which had been previously filed in the Federal action. Nothing in the stipulation even remotely suggests that the parties intended to preserve prior judgments and orders from the Federal case. We therefore find that the denial of summary judgment in favor of defendant in the prior Federal case was not binding upon the circuit court in the refiled action.

We now turn to the central issue of whether plaintiff was an “employee” within the scope of the Federal Employers’ Liability Act (FELA)(45 U.S.C. §§51 through 60 (1988)). Under FELA, a railroad is liable for negligently causing the death or injury of any person “while he is employed” by the railroad. There are four possibilities for imposing liability against an employer railroad:

(1) plaintiff is actually employed by the railroad;
(2) plaintiff is a borrowed servant of the railroad;
(3) plaintiff works for two employers (his own and the railroad) simultaneously;
(4) plaintiff’s employer is a servant of the railroad and, thus, plaintiff is a “subservant” of the railroad.

The trial court ruled out possibilities (1) and (2) and evaluated whether there existed a genuine issue of material fact under scenario (3) or (4). At the hearing on defendant’s motion for summary judgment, the trial court analyzed the facts under the guidelines of Kelley v. Southern Pacific Co. (1974), 419 U.S. 318, 42 L. Ed. 2d 498, 95 S. Ct. 472. In Kelley, as in the instant case, plaintiff was employed by a trucking company which was a wholly owned subsidiary of the defendant railroad. Plaintiff was injured when he fell from atop a railroad car. As to the question of whether plaintiff Kelley was working for the trucking company and the railroad simultaneously, the Supreme Court noted that railroad employees did not assume “a significant supervisory role” in the trucking company’s operations and, moreover, Kelley was not being supervised by railroad personnel at the time of the injury. As to whether the trucking company was a servant of the railroad, the Court found “[t]he two companies were sufficiently distinct in organization and responsibility that there was no apparent overlap in supervisory ranks.” (Kelley, 419 U.S. at 327, 42 L. Ed. 2d at 508, 95 S. Ct. at 478.) On these facts, the Court concluded that Kelley was not sufficiently supervised by the railroad in order to satisfy the definition of railroad employee under the Federal Employers’ Liability Act.

In the instant case, plaintiff was often supervised by railroad personnel while working for BN Transport. The degree of supervision or contact with railroad employees varied with the type of job assigned as well as the locale. The critical question, however, is whether Tierney was serving two masters simultaneously at the time of his injury.

Burlington Northern possessed a “leasehold interest” in the building and the land where the accident occurred. The dock foreman, assistant area manager and regional terminal manager present at the accident scene have since resigned. All were employees of BN Transport.

Mel Heard, a ramp manager for Burlington Northern Railroad, stated at his deposition that he supervised the work of clerks, operators and spotters and he reported to the terminal manager. Heard said that the assistant terminal manager and ramp manager at the location where he worked were employed by the railroad, but the terminal manager at Ogden Avenue worked for BN Transport. The trailers at the 36th Street location were leased from the railroad. Heard did not know of any railroad employees to be working at 36th Street. Spotters, employed by BN Transport, would complete forms or “load lists” and return them to railroad clerks in the office. After trailers were loaded on the trains by BN Transport employees, the ramp manager would inspect the train. At Ogden Avenue the ramp manager worked for the railroad; at 16th Street, he worked for BN Transport. According to Heard, the docks and ladders at 36th Street were inspected and maintained by the BN Transport maintenance department.

Although Tierney was supervised by railroad employees at various locations, he did not present any evidence to raise a genuine issue of material fact as to the 36th Street location, where the accident at issue occurred. We, therefore, find no error in the trial court’s conclusion that Tierney failed to present enough evidence of serving two masters simultaneously, BN Transport and Burlington Northern Railroad, at the time of his injury.

We next consider whether there was a genuine issue of material fact as to whether BN Transport was merely a servant of Burlington Northern Railroad. In the case at hand, the railroad owned all of the stock of BN Transport and directed the operations of BN Transport in accordance with a 1974 agreement between BN Transport and Burlington Northern Railroad. However, stock ownership alone is not sufficient to deem BN Transport to be a servant of Burlington Northern Railroad.

Plaintiff also presented evidence that his workers’ compensation claims were handled by Burlington Northern Railroad’s in-house counsel, arguing that BN Transport and Burlington Northern Railroad were one and the same company.

Jack Lambrecht, general claims manager for Burlington Northern Railroad Company, testified at his deposition that his department would handle subrogation claims on behalf of BN Transport, to recover monies paid pursuant to the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.). The railroad handled all of BN Transport’s workers’ compensation claims in the Chicago area, whether or not they resulted from events on railroad property.

Conflicting evidence as to whether or not BN Transport was merely a servant of Burlington Northern Railroad was presented by both sides. This evidence presents a genuine issue of material fact to be decided by the trier of fact. A jury should be permitted to decide whether in fact BN Transport acted as a servant of Burlington Northern Railroad, such that plaintiff performed as a subservant and employee of the railroad for purposes of FELA. The evidence presented by plaintiff as to defendant’s right to control his activities at work locations, other than the 36th Street location where the accident occurred, could not be introduced to show plaintiff was serving two masters simultaneously. However, this evidence may be introduced to demonstrate the existence of a master-servant relationship between BN Transport and the defendant railroad.

We conclude the late Honorable Dean J. Sodaro erred in granting summary judgment in favor of defendant Burlington Northern Railroad. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

GREIMAN, P.J., and RIZZI, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. IRENE A. SANCHEZ, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 90—1422
    Opinion filed December 30, 1992.
    Rita A. Fry, Public Defender, of Chicago (Stephen L. Richards, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant, Irene A. Sanchez, was convicted of retail theft (Ill. Rev. Stat. 1989, ch. 38, par. 16A — 3) in a jury trial and sentenced to one year’s conditional discharge after she knowingly transferred a $30 price tag from an item of clothing to a woman’s jacket with a retail value of $64 and purchased the jacket with the intention of depriving the merchant of less than full retail value of the jacket. On appeal, defendant contends that (1) the prosecutor committed reversible error when he made unsupported and unsubstantiated insinuations during cross-examination; (2) the trial court erred when it excluded photographic evidence that would have supported her defense; and (3) she received ineffective assistance of counsel. We affirm.

Defendant first contends that the prosecutor committed reversible error when he made unsupported and unsubstantiated insinuations during her cross-examination. It is well recognized that the prosecutor may not ask leading questions which imply improper conduct unless evidence can be presented to substantiate the conduct. (People v. Rivera (1986), 145 Ill. App. 3d 609, 619, 495 N.E.2d 1088, 1095.) The prosecutor here asked defendant several preliminary questions during cross-examination about her present employment, her husband’s employment, the method of transportation she used to get to work, whether she rented or owned her home, the number of children that reside with her, and whether she had hired an attorney to represent her in this matter. Defendant argues that the prosecutor’s questions insinuate that she fraudulently misrepresented her financial status in order to have a public defender appointed on her behalf. We find that the prosecutor’s questions here do not insinuate that defendant engaged in any improper conduct other than the conduct for which she was charged or otherwise infringe upon her right to remain silent or accept appointed counsel as guaranteed by the United States Constitution. U.S. Const., amends. V, VI.

Defendant further contends that the prosecutor committed reversible error during the cross-examination of defendant’s husband when he made unsupported and unsubstantiated insinuations that defendant’s husband impersonated his brother and used a credit card that did not belong to him when the jacket in issue was purchased. During cross-examination, the prosecutor asked defendant’s husband whether he had a department store charge card, whether he had a brother, whether he knew his brother’s date of birth, whether his brother had a middle name, whether his brother uses an alias and where his brother worked. Defense counsel objected to the prosecutor’s questions, and the trial court sustained the objection. Thereafter, the prosecutor concluded his cross-examination. Defendant argues that the prosecutor’s questions were highly improper and prejudicial. We find that any prejudice that may have been caused by the prosecutor’s questions was cured after defense counsel’s objection was sustained by the trial court and the line of questioning ceased. See People v. Reeves (1992), 228 Ill. App. 3d 788, 800, 593 N.E.2d 683, 692.

Defendant next contends that the trial court erred when it excluded photographic evidence that would have supported her defense. At trial, defense counsel sought to introduce a photograph of defendant taken by police shortly after her arrest to create an inference that defendant was wearing the same outfit at trial that she was wearing at the time of her arrest and to rebut prosecution witnesses’ claims that plastic shoplifting prevention fasteners were found in her pants pockets when she was apprehended. The trial court refused to admit the photograph into evidence on the basis that it was inadmissible as a police mug shot. We find that defendant was not prejudiced by the trial court’s failure to admit the photograph into evidence because the photograph here is limited to defendant’s upper body and torso, and does not reveal the pants defendant was wearing at the time of her apprehension or arrest. Thus, even if the trial court admitted the photograph into evidence, the photograph would not create an inference about the pants defendant was wearing when she was arrested or rebut the testimony of prosecution witnesses about items found in her pants pockets when she was apprehended. Accordingly, because defendant was not prejudiced by the trial court’s failure to admit the photograph into evidence, any error is harmless beyond a reasonable doubt.

Finally, defendant contends that she received ineffective assistance of counsel because defense counsel failed to preserve meritorious claims of error due to his failure to make a post-trial motion for a new trial. In the present case, no meritorious claims of error were waived due to defense counsel’s failure to make a post-trial motion for a new trial. Additionally, our further review of the record reveals that defense counsel’s representation here was not so objectively incompetent that he was not functioning as counsel as guaranteed by the United States Constitution. Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

GREIMAN, P.J., and CERDA, J., concur.


text:
    JOHN R. MARTIN, on his own Behalf and on Behalf of All Others Similarly Situated, Plaintiff-Appellee, v. HEINOLD COMMODITIES, INC., Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 90—2866
    Opinion filed December 30, 1992.

      William J. Nissen and Thomas K. Cauley, Jr., both of Sidley & Austin, of Chicago, for appellant.
    William J. Harte, Inc., and Plotkin & Jacobs, Ltd., both of Chicago (William J. Harte, John G. Jacobs, and Jonah Orlofsky, of counsel), for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, John R. Martin, on his own behalf and on behalf of all others similarly situated (the Class), brought this class action in the circuit court against defendant, Heinold Commodities, Inc., seeking declaratory and injunctive relief, an accounting and monetary damages resulting from the payment of certain fees in connection with the purchase of London commodity options (LCO’s) through defendant. In 1982, the trial court granted the Class’ motion for summary judgment and entered judgment in favor of the Class and against defendant in the amount of $2,187,167.32. On appeal, this court reversed and remanded for trial, holding that the question of materiality of the information regarding defendant’s internal distribution of the foreign service fee presented a genuine issue of material fact precluding the entry of summary judgment. (Martin v. Heinold Commodities, Inc. (1985), 139 Ill. App. 3d 1049, 1057, 487 N.E.2d 1098, 1103.) The supreme court allowed the Class’ petition for leave to appeal pursuant to Supreme Court Rule 315 (87 Ill. 2d R. 315), and affirmed the portions of this court’s opinion relevant to the present appeal. Martin v. Heinold Commodities, Inc. (1987), 117 Ill. 2d 67, 510 N.E.2d 840.

Following a bench trial on remand, the trial court ruled that defendant’s conduct in connection with the foreign service fee amounted to a breach of its fiduciary responsibilities to the Class and violated the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1977, ch. 1211/2, par. 261 et seq.) (Consumer Fraud Act), and entered judgment in favor of the Class and against defendant in the amount of $3,563,624.46. On appeal, defendant contends that (1) the trial court abused its discretion when it denied defendant’s demand for a jury trial; (2) the trial court erred when it ruled that defendant breached its fiduciary responsibilities to the Class; (3) the trial court’s ruling in favor of the Class on the Consumer Fraud Act claim is contrary to the manifest weight of the evidence; and (4) the trial court erred in its computation of damages when it permitted recovery of investment losses, compounded prejudgment interest and punitive damages. We affirm in part and vacate in part.

An LCO is an option contract purchased at a commodity option exchange in London, England, giving the purchaser of the option the right to either buy from or sell to the grantor of the option the underlying physical commodity (e.g., precious metals, rubber, cocoa, sugar and coffee) at a stated price within a stated time. Prior to the 1970’s, the offer and sale of foreign and domestic options was banned in the United States. In 1972, however, a regulatory loophole permitted the offer and sale of LCO’s in the United States. Shortly thereafter, defendant and other American investment firms began to offer and sell LCO’s to their customers.

Between September 1977 through May 1978, each of the 381 members of the Class pm-chased LCO’s through defendant. Prior to purchasing these LCO’s, each member of the Class signed and returned to defendant a summary disclosure statement describing the nature of commodity options trading and the elements of the purchase price. After each LCO purchase, defendant would send the purchaser a confirmation statement separately itemizing the amount charged to his account. Each confirmation statement contained a charge for premium (the amount charged by the grantor of the option for the contractual right obtained in the LCO), commission and “foreign service fee,” which is described by defendant in its summary disclosure statement as a method of recovering specifically enumerated costs associated with options transactions as well as compensating defendant and its servicing brokers.

In April 1978, the Commodity Futures Trading Commission (CFTC), which is empowered by Congress to regulate the commodity futures industry, determined that the offer and sale of LCO’s in the United States was “fraught with fraud and other illegal and unsound practices” representing substantial risks to the public, and suspended trading of LCO’s in the United States effective June 1, 1978. (17 C.F.R §32.11 (1978).) In its explanation of fraud and other illegal and unsound practices, the CFTC stated:

“The fact most scrupulously concealed by the vast majority of options firms is the full extent of fees and mark-ups. Notwithstanding significant mark-ups of between 50 and 300 percent, sales pitches, promotional materials and confirmations uniformly avoid disclosure and in fact conceal such fact by using various explanations or definitions. Mark-ups frequently are defined in promotional materials and customer confirmations as ‘transaction fees,’ ‘foreign service fees’ and ‘U.S. service fees.’ ” 43 Fed. Reg. 16162 (1978).

In 1980, plaintiff, John R. Martin, brought this class action on his own behalf and on behalf of others who bought LCO’s through defendant between September 1977 and May 1978. Following a bench trial on remand, the trial court determined that defendant’s material omissions and misleading and deceptive conduct in connection with the foreign service fee amounted to an intentional and malicious breach of its fiduciary responsibilities to the Class and violated the Consumer Fraud Act. The trial court entered judgment in favor of the Class and against defendant in the amount of $3,563,624.46, ruling that the Class was entitled to recover all of its investment losses, including the premium paid to the grantor of the option, prejudgment interest compounded at the rate of 5% per annum and punitive damages in the amount of $500,000. This appeal followed.

Defendant first contends that the trial court abused its discretion when it denied defendant’s demand for a jury trial. We disagree.

While the Illinois Constitution provides that the right to a jury trial shall remain inviolate, this right is not absolute and there is no right to a jury trial in equity actions. (Ill. Const. 1970, art. I, §13; Pettey v. First National Bank (1992), 225 Ill. App. 3d 539, 547, 588 N.E.2d 412, 418.) It is well established that a breach of fiduciary duty claim is an equitable action. (See Capitol Indemnity Corp. v. Stewart Smith Intermediaries, Inc. (1992), 229 Ill. App. 3d 119, 124, 593 N.E.2d 872, 876.) Moreover, this court has consistently held that no right to a jury trial exists where an equitable accounting is sought in a breach of fiduciary duty action. (See Gordon v. Bauer (1988), 177 Ill. App. 3d 1073, 532 N.E.2d 855; People ex rel. Daley v. Warren Motors, Inc. (1985), 136 Ill. App. 3d 505, 483 N.E.2d 427; Metro-Goldwyn-Mayer, Inc. v. Antioch Theatre Co. (1977), 52 Ill. App. 3d 122, 367 N.E.2d 247.) Defendant argues, however, that the breach of fiduciary duty claim here lost its equitable nature when the parties stipulated to the numerical calculations involved in the accounting. We find that a breach of fiduciary duty claim remains an equitable action triable without a jury irrespective of how damages are calculated.

Defendant further argues that it was entitled to a jury trial on the Consumer Fraud Act claim. While courts have permitted Consumer Fraud Act claims to be tried by juries, we conclude that there is no absolute right to a jury trial for the cause of action created by the legislature under the Consumer Fraud Act. (See Rubin v. Marshall Field & Co. (1992), 232 Ill. App. 3d 522, 531, 597 N.E.2d 688, 693; Wheeler v. Sunbelt Tool Co. (1989), 181 Ill. App. 3d 1088, 1110, 537 N.E.2d 1332, 1347; Richard/Allen/Winter, Ltd. v. Waldorf (1987), 156 Ill. App. 3d 717, 725, 509 N.E.2d 1078, 1083.) We therefore hold that the trial court did not abuse its discretion when it denied defendant’s demand for a jury trial.

Defendant next contends that the trial court erred when it ruled that defendant breached its fiduciary responsibilities to the Class. We disagree.

Defendant first argues that the Class failed to prove that defendant owed a preagency fiduciary duty to the Class. In antecedent proceedings, the supreme court instructed the trial court about recognizing a preagency fiduciary duty in the present case. The supreme court stated:

“We agree, that, as a general rule, an agent’s fiduciary duty is limited to actions occurring within the scope of his agency and that the creation of the agency relationship is not itself within that scope. However, we are unwilling to conclude, as a matter of law, that a fiduciary duty can never be imposed upon a prospective agent prior to the formal creation of an agency relationship. Thus, while the general rule governing preagency contacts does not require disclosure of the terms of a prospective agent’s compensation, we believe that facts could be established which would support imposition of a fiduciary duty upon a prospective agent applicable to preagency contacts. ***
We intimate no -view as to the specific facts which would support imposition of a fiduciary duty prior to the formal creation of an agency relationship between members of the plaintiff class and the defendant. ***
*** We also note that, where the very creation of the agency relationship involves a special trust and confidence on the part of a principal in the subsequent fair dealing of an agent, the prospective agent may be under a fiduciary duty to disclose the terms of his employment as an agent.” 117 Ill. 2d at 78-79, 510 N.E.2d at 845.

Applying these instructions on remand, the trial court determined that the creation of the broker/investor agency in the present case involves a special trust and confidence imposing a preagency fiduciary duty upon defendant to disclose the terms of its employment as an agent to its prospective customers. The trial court articulated defendant’s duty here to require disclosure to the Class of all material facts which in any way might affect the subject matter of the agency, including the duty to fully, clearly and candidly disclose the full extent of all compensation expected to be derived in connection with the contemplated LCO transactions.

After reviewing the record, we cannot say the trial court erred when it determined that defendant owed a preagency duty to the Class. The record indicates that members of the Class were uniquely dependent upon information obtained from defendant and its soliciting brokers in order to make a profit on LCO transactions. The trading of LCO’s during the relevant period was exceedingly complicated due to the mechanics of LCO’s and the London exchanges, the volatility of the commodity options market, the impact of currency conversion rates and the differing terminology used among brokers offering LCO’s to the public. Based on the unique facts involving LCO transactions during the relevant time period, we hold that defendant owed members of the Class a preagency fiduciary duty to disclose all material facts in its knowledge affecting the subject matter of the agency, including the full extent of all compensation expected to be derived in contemplated LCO transactions.

Defendant next contends that even if a preagency duty to disclose the terms of its employment exists, it discharged its fiduciary obligations when it tendered its summary disclosure statement to each member of the Class prior to executing an LCO transaction. We disagree.

Defendant charged its commodity futures customers a standard commission in the amount of $47.50 on each half (purchase and sale) of a commodity futures transaction. Defendant charged its LCO customers, however, a foreign service fee of up to $1,200 per LCO transaction in addition to its standard $47.50 commission. Defendant explains that it assessed the foreign service fee to recover additional costs associated with LCO transactions and to compensate brokers for answering telephone calls from customers and checking the status of customers’ LCO’s due to the increased shelf life of an LCO compared to a commodity futures position. After reviewing the record, we find that defendant used the foreign service fee here as a method to derive substantial additional compensation for the same services already covered by the commission rather than to recover additional costs associated with LCO transactions.

Defendant’s summary disclosure statement, which was signed and returned to defendant by each member of the Class prior to executing an LCO transaction, describes the foreign service fee in the following manner:

“[Defendant] adds a foreign service fee of $1,200 to the London premium as well as one half the commodity futures commission rate normally charged on futures transactions. These charges have the following purpose: to recover costs of telephone, telex, bookkeeping, floor brokerage, clearing fees, and research costs involved with options transactions; as well as to compensate [defendant] and the registered representative who services the options customer during the life of options for conducting such business. The foreign service fee for options which expire a relatively short time after their purchase, e.g. one week or one month options, may have a foreign service fee of less than $1,200.”

Contrary to the defendant’s disclosures, the record clearly and convincingly establishes that defendant incurred inconsiderable additional costs on LCO transactions not incurred on commodity futures transactions and that most, if not all, of the foreign service fee was used to provide additional compensation to defendant and its soliciting brokers. It is plain that a reasonable investor would consider it highly material to his investment decision that defendant was receiving additional compensation of up to 12 times the standard commission charged on a round-trip commodity futures transaction to answer telephone calls and check the status of his LCO. We therefore hold that neither defendant’s summary disclosure statement nor its further disclosures to the Class fully, clearly and candidly disclosed the full extent of all compensation derived by defendant in the relevant LCO transactions. Accordingly, because defendant did not disclose all material facts within its knowledge affecting the subject matter of the agency, the trial court did not err when it ruled that defendant breached its fiduciary responsibilities to the Class.

Defendant next contends that the trial court’s ruling in favor of the Class on the Consumer Fraud Act claim is contrary to the manifest weight of the evidence. We disagree.

The Consumer Fraud Act was enacted to protect consumers from, inter alia, unfair or deceptive practices in trade or commerce. (Ill. Rev. Stat. 1977, ch. 121½, par. 262.) It is clear from the evidence adduced at trial that defendant’s conduct in connection with the foreign service fee violates the Consumer Fraud Act. Defendant argues, however, that the judgment entered against it on the Consumer Fraud Act claim should be reversed because its disclosures complied with applicable CFTC regulations. We find that neither defendant’s summary disclosure statement nor its further conduct in connection with the foreign service fee complies with CFTC regulations.

Section 32.5 of the Code of Federal Regulations states in relevant part:

“(a) Except as provided in paragraph (b) of this section, prior to the entry into a commodity option transaction, each option customer or prospective option customer shall be furnished a summary disclosure statement by the person soliciting or accepting the order therefor. The disclosure statement shall contain the following:
(1) A brief description of the commodity option transactions being offered including:
* * *
(ii) A listing of the elements comprising the purchase price to be charged, including the premium, mark-ups on the premium, costs, fees and other charges, as well as the method by which the premium is established.” 17 C.F.R. §32.5(a)(l) (1977).

While defendant may have taken considerable measures to ensure that its summary disclosure statement complied with applicable CFTC regulations, we find that defendant’s summary disclosure statement does not fully, clearly and candidly disclose all mark-ups on premium, costs, fees and other charges comprising the purchase price of the LCO as required by section 32.5(a)(l)(ii) of the Code of Federal Regulations because it does not disclose the full extent of compensation it derived in LCO transactions. We also find that defendant failed to comply with section 32.9 of the Code of Federal Regulations, which provides in relevant part:

“It shall be unlawful for any person directly or indirectly:
(a) To cheat or defraud or attempt to cheat or defraud any other person; [or]
* * *
(c) To deceive or attempt to deceive any other person by any means whatsoever; in or in connection with an offer to enter into, the entry into, or the confirmation of the execution of, any commodity option transaction.” 17 C.F.R. §32.9 (1977).

It is plain that defendant’s intentionally misleading and deceptive conduct in connection with the foreign service fee, including its use of the foreign service fee as a method to derive additional compensation for the same services already covered by the commission, its use of the misleading and deceptive term “foreign service fee” in its summary disclosure statement and its use of a conversion rate in its confirmation statement to convert the foreign service fee from British pounds to American dollars where no actual conversion occurred, violates the prohibition against fraudulent and deceptive conduct prescribed by section 32.9 of the Code of Federal Regulations and the Consumer Fraud Act. Accordingly, the trial court’s ruling in favor of the Class on the Consumer Fraud Act claim is not contrary to the manifest weight of the evidence.

Defendant next contends that the trial court erred in its computation of damages. Defendant first argues that the Class is not entitled to recover investment losses because proof of causation is insufficient as a matter of law. We disagree.

This court instructed the trial court to award the amount of any damages proximately caused by defendant’s failure to disclose material information regarding the foreign service fee in the breach of fiduciary duty claim. (139 Ill. App. 3d at 1058-59, 487 N.E.2d at 1104-05.) Causation is also a necessary element for recovery of damages pursuant to the Consumer Fraud Act. (See Fitzpatrick v. A C F Properties Group, Inc. (1992), 231 Ill. App. 3d 690, 711-12, 595 N.E.2d 1327, 1341.) We find that the record in the present case contains sufficient proof of causation to support the trial court’s award of investment losses.

The record here is replete with testimony from members of the Class and expert witnesses that each member of the Class would not have purchased LCO’s through defendant had he known the full extent of compensation derived by defendant through its use of the foreign service fee. While it is true, as defendant asserts, that “neither [defendant’s] representations concerning the foreign service fee nor its use of that fee had any effect on the value, risk or profit potential of [LCO’s],” we agree with the trial court that the proximate cause of the Class’ losses here, including the premium paid to the grantor of the LCO, is the material omissions and misleading and deceptive conduct by defendant in connection with the foreign service fee.

Defendant next argues that the Class is not entitled to recover prejudgment interest. It is well established that a court of equity is vested with broad discretion in awarding interest and may give or withhold interest as it deems equitable and just under the circumstances. (In re Estate of Wernick (1989), 127 Ill. 2d 61, 87, 535 N.E.2d 876, 887-88.) After reviewing the record, we find that the trial court did not abuse its discretion when it awarded equitable interest compounded at the rate of 5% per annum in the breach of fiduciary duty claim. We find, however, that the trial court erred when it awarded compounded prejudgment interest in the Consumer Fraud Act claim. In the absence of express statutory or contractual language providing for prejudgment interest to be compounded, interest must be computed on a simple basis. (Helland v. Helland (1991), 214 Ill. App. 3d 275, 277, 573 N.E.2d 357, 358-59.) The Class has not cited any cases which have awarded compounded prejudgment interest pursuant to the Consumer Fraud Act. Accordingly, the award of compound prejudgment interest in the Consumer Fraud Act claim is vacated. It is unnecessary, however, to remand the case to recalculate prejudgment interest because judgment on the breach of fiduciary duty and Consumer Fraud Act claims is in the alternative, and judgment on the breach of fiduciary duty claim is affirmed in toto.

Defendant finally argues that the trial court erred in awarding punitive damages. We agree. Punitive damages are clearly disfavored at law and will be awarded only for conduct that is outrageous either because the acts are done with malice, an evil motive or because they are performed with a reckless indifference toward the rights of others. (Tucker v. Illinois Power Co. (1992), 232 Ill. App. 3d 15, 30, 597 N.E.2d 220, 231; Ekl v. Knecht (1991), 223 Ill. App. 3d 234, 243, 585 N.E.2d 156, 164.) While the record supports the trial court’s finding that defendant’s conduct was intentionally misleading .and deceptive, we cannot say that it rises to the level of malice or reckless indifference towards the rights of others so as to justify an award of punitive damages. Accordingly, the award of punitive damages in the present case is vacated.

We therefore hold that defendant owed a duty to the Class to disclose all material facts within its knowledge affecting the relevant LCO transactions, and that it breached that duty when it failed to fully, clearly and candidly disclose the extent of additional compensation it derived through its use of the foreign service fee. We further hold that defendant’s intentionally misleading and deceptive conduct in connection with the foreign service fee violates the Consumer Fraud Act.

Accordingly, the judgment of the circuit court is affirmed, except that the awards of prejudgment interest in the Consumer Fraud Act claim and punitive damages are vacated as stated herein.

Affirmed in part and vacated in part.

GREIMAN, P.J., and CERDA, J., concur.


text:
    400 CONDOMINIUM ASSOCIATION, Counterplaintiff-Appellee and Cross-Appellant, v. LILLIAN M. WRIGHT, Counterdefendant-Appellant and Cross-Appellee (Talman Home Federal Savings and Loan Association, Successor in interest to the Talman Home Federal Savings and Loan Association of Chicago, et al., Counterdefendants).
    First District (3rd Division)
    No. 1 — 90—2959
    Opinion filed December 30, 1992.

      Michael Anthony Lowe, of Chicago, for appellant.
    John R. Doyle and Paul L. Langer, both of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Counterdefendant Taiman Home Federal Savings & Loan Association (Taiman) initially brought this action against counterdefendant Lillian M. Wright to foreclose on certain mortgages held by Taiman on two condominiums located at 400 East Randolph Street, Chicago, Illinois (400 East Randolph). Counterplaintiff, 400 Condominium Association (Association), the governing body of 400 East Randolph, joined in this action to collect monthly condominium assessments, common expenses and late fees allegedly owed by Wright. Taiman was subsequently dismissed from the action.

Following a bench trial, the trial court entered judgment in favor of Association and against Wright in the amount of $7,754.89, and awarded attorney fees to Association pursuant to Association’s declaration of condominium ownership in the amount of $8,000. Wright appeals from the judgment and Association cross-appeals. On appeal, Wright contends that (1) the trial court’s rejection of her affirmative defense of tender is contrary to the manifest weight of the evidence; (2) the judgment entered in favor of Association and against Wright is contrary to the manifest weight of the evidence; and (3) the trial court erred when it awarded attorney fees. On cross-appeal, Association contends that the trial court abused its discretion when it awarded attorney fees in the amount of $8,000 when it sought $24,164.21 in its fee petition. We affirm.

Wright’s first contention on appeal is that the trial court’s rejection of her affirmative defense of tender is contrary to the manifest weight of the evidence. We disagree.

Wright first argues that she is relieved of her obligation to pay any condominium assessments after Association’s attorneys refused to accept her tender of partial payment of the outstanding balance owed to Association. While tender of an entire outstanding amount owed to a creditor, including interest and other costs, is an affirmative defense to the satisfaction of pecuniary obligations, Wright’s tender here of less than the entire amount owed to Association is nugatory and ineffective as a tender. (See Daiwa Bank, Ltd. v. La Salle National Trust, N.A. (1992), 229 Ill. App. 3d 366, 374, 593 N.E.2d 105, 109-10.) Wright further argues that the record contains uncontroverted evidence that she tendered payment of her condominium assessments to Association on numerous occasions and that Association’s rejection of her proper tenders mandates entry of judgment in her favor. The record, however, is replete with evidence contradicting Wright’s claims that she tendered payment of her condominium assessments to Association. We, therefore, conclude that the trial court’s rejection of Wright’s tender defense is not contrary to the manifest weight of the evidence.

Wright’s second contention is that the judgment entered in favor of Association and against Wright is not supported by the record. The record, however, demonstrates that the trial court properly awarded the disputed charges in favor of Association. We, therefore, conclude that the judgment entered by the trial court in favor of Association and against Wright in the amount of $7,754.89 is not contrary to the manifest weight of the evidence.

The next issue we address involves Wright’s final contention and the contention made by Association in its cross-appeal. The issue relates to whether the trial court erred when it awarded attorney fees to Association in the amount of $8,000. It is well established that attorney fee provisions in contracts will be enforced so long as they are reasonable. (Kaiser v. M E P C American Properties, Inc. (1987), 164 Ill. App. 3d 978, 983, 518 N.E.2d 424, 427.) The factors to be considered when determining the reasonableness of attorney fees include the skill and standing of the attorneys employed, the nature of the controversy, the novelty and difficulty of the questions at issue, the usual and customary charge in the community for the same or similar services and whether there is a reasonable connection between the fees charged and the litigation. (Harris Trust & Savings Bank v. American National Bank & Trust Co. (1992), 230 Ill. App. 3d 591, 595, 594 N.E.2d 1308, 1312.) After evaluating these criteria here, we find that the trial court did not abuse its discretion when it awarded attorney fees in the present case in the amount of $8,000.

The underlying matter involves the collection of $7,754.89 of unpaid condominium assessments, $6,103.07 of the amount having been stipulated to being owed by Wright prior to trial. Association’s amended fee petition, which seeks $24,164.21 in attorney fees and costs, contains 142 entries totalling 174.5 hours performed by four attorneys, two paralegals, four law clerks and a docket clerk. Following a hearing on the amended petition, the trial court stated in its ruling:

“Through these proceedings on the fee petition, the court has observed the exorbitant time spent by counsel on his efforts to prepare an adequate petition for fees. The initial petition failed to allege all of the elements necessary to support a petition for fees. In addition, as discussed above, the exhibits presented by [Association] at trial are contradictory and incomplete. A request for fees with exhibits is not a complex task. The Court cannot understand why [Association’s] evidence is imprecise. The Court thus would infer that the enormous time spent by [Association’s] counsel in this case resulting in over $24,000 in attorney fees must also be due to an inadequacy in the quality of time spent. Accordingly, [Association’s] prayer for over $24,000 in fees is unreasonable.”

Association defends its request for fees, averring that “Association’s attorneys were required to expend a substantial amount of time preparing and conducting a two day trial.” We fail to see, however, how a substantial amount of time could have been spent preparing for the trial in this case. Association also asserts that “Wright’s habitual changing of attorneys and the attendant court appearances forced the Association to incur additional legal fees.” While it is true that Wright changed attorneys five times and that Association’s attorneys had 17 court appearances, no legal research and minimal preparation time were required for many or most of these appearances. (See Fitzgerald v. Lake Shore Animal Hospital, Inc. (1989), 183 Ill. App. 3d 655, 662, 539 N.E.2d 311, 315.) Based on the factors set forth in Kaiser and its progeny, we find that the trial court did not abuse its discretion when it awarded attorney fees pursuant to Association’s declaration of condominium ownership in the amount of $8,000. In addition, we decline to award further attorney fees to Association for the costs of defending this appeal.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

GREIMAN, P.J., and CERDA, J., concur.