author: JUSTICE HARRISON

text:
      In re MARRIAGE OF EDWIN KNAPTON WHITING, Petitioner and Counterrespondent, and PATTI RUTH WHITING, Respondent and Counterpetitioner.
    Fifth District
    No. 5—87—0190
    Opinion filed January 26, 1989.

      William L. Berry, of East St. Louis, for appellant.
    Robert E Kaucher, of Kaucher & Ligman, P.C., of Belleville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Petitioner, Edwin Knapton Whiting (the husband), appeals from orders of the circuit court of St. Clair County which denied his motion for termination of maintenance and ordered him to pay $15,550.47 in accrued and unpaid retirement benefits to respondent, Patti Ruth Whiting (the wife). For the reasons which follow, we affirm.

On January 11, 1979, the circuit court of St. Clair County entered an order dissolving the marriage between the husband and the wife. Questions of property distribution and other matters were reserved for later consideration. The property was ultimately distributed by the circuit court in a final judgment entered October 16, 1980. In that judgment, the court awarded to the wife, among other things, “one-half of that percentage of [the husband’s] retirement benefits that results from dividing the number of months of marriage, 188 months, by the number of months of [the husband’s] military service.”

On September 8, 1982, the wife filed a motion to have the husband held in contempt for failing to pay her that portion of his military retirement benefits specified in the dissolution judgment. Her motion was taken under advisement, but remained unresolved for many years. In the meantime, the wife filed a motion asking that the October 16, 1980, dissolution judgment be modified to provide for larger maintenance payments, and the husband filed a motion asking that the dissolution judgment be modified by eliminating the maintenance payments altogether.

Following various hearings, the circuit court denied both parties’ motions for modification. On the motion for contempt, however, the court ruled in favor of the wife and held that the husband owed her $15,550.47 in accrued and unpaid retirement benefits as of November 1986. From these orders the husband now appeals.

With respect to the order requiring him to pay the accrued and unpaid military pension benefits, the husband makes two arguments. First, he contends that the trial court used incorrect figures in determining the benefits he owed to the wife. This argument has no merit. As we have indicated, the judgment of dissolution expressly provided that the wife was to receive “one-half of that percentage of [the husband’s] retirement benefits that results from dividing the number of months of marriage, 188 months, by the number of months of [the husband’s] military service.” There is no dispute that the circuit court employed this formula accurately in calculating the arrearage owed by the husband. The error, according to the husband, was that the reference to “188 months” as being the duration of the marriage was incorrect, and that the parties were actually married only 168.5 months. The husband asserts that because the higher number was used, the wife ended up receiving a higher percentage of the husband’s military-retirement benefits than she should have.

A threshold problem with the husband’s contention is that it comes too late. The husband did not challenge the correctness of the figures used in the circuit court’s original dissolution judgment until the wife filed her motion to have him held in contempt, but that did not occur until well after the time for taking an appeal from the dissolution judgment had expired.

The husband attempts to avoid this problem by arguing that the reference to 188 months instead of 168.5 months was simply the product of a clerical error. He therefore reasons that the circuit court should have revised the dissolution judgment to reflect the correct period by entering an order nunc pro tuno. This claim has no merit. Although a court may, at any time, correct a clerical error or matter of form so that the record reflects the actual order or judgment rendered by the court (Ashline v. Verble (1984), 130 Ill. App. 3d 544, 546, 474 N.E.2d 764, 766), a nunc pro tunc entry may not be used to supply omitted judicial action, correct judicial errors under the pretense of correcting clerical errors, or cure a jurisdictional defect. (In re Marriage of McDavid (1981), 97 Ill. App. 3d 1044, 1051, 425 N.E.2d 442, 447-48.) Here, there is absolutely no indication in the record that the circuit court’s reference to 188 months instead of 168.5 months was the product of a clerical error. To the contrary, there seems to be little question that the use of the figure of 188 months by the circuit court was not inadvertent, but was the product of a deliberate decision made by the court based on its understanding of the record and the applicable law. Indeed, the parties specifically argued the point before the circuit court, and in an interlocutory order entered on March 10, 1986, the circuit court expressly found that the figure of 188 months was, in fact, correct.

The record indicates that the parties were married on December 26, 1964. The figure of 168.5 months urged by the husband is based upon the assumption that the marriage ended with entry of the initial dissolution order on January 11, 1979. The figure of 188 months which was ultimately used by the circuit court was apparently based on the assumption that the marriage did not end until entry of the final dissolution judgment on October 16, 1980. The husband may believe that the circuit court chose the wrong date for the end of the marriage, and he may not agree that the court added up the number of months in the marriage correctly, but those are matters he should have taken up in an appeal from the October 16 dissolution judgment itself. They are not subject to correction by means of a nunc pro tunc order.

The husband next argues that the order of the circuit court awarding the wife accrued and unpaid military retirement benefits should be set aside because the $15,550.47 which the court ordered the husband to pay took into account cost of living adjustments to the value of the husband’s military retirement benefits which were made after the dissolution of the parties’ marriage. The husband reasons that because the distribution of military retirement benefits to the wife was made as part of the division of marital property (see In re Marriage of Korper (1985), 131 Ill. App. 3d 753, 757, 475 N.E.2d 1333, 1336) and because marital property must be valued as of the date of dissolution of the marriage (see In re Marriage of Frazier (1984), 125 Ill. App. 3d 473, 476, 466 N.E.2d 290, 293), the amount of the husband’s military retirement benefits to which the wife is entitled must be calculated using the payment amounts received by the husband at the time the marriage was dissolved. Correspondingly, the husband argues that the wife is not entitled to claim any portion of any increases in those benefits, even cost of living adjustments, which occurred following the date of dissolution. This argument must also fail.

When the circuit court originally set out to apportion the husband’s military retirement benefits between the parties, it could have reduced the retirement benefits to present value and awarded an offsetting value of money or property to the wife or it could simply have ordered the husband to pay the allocated portion of the retirement benefits, as disbursed, to the wife and retained jurisdiction to enforce the decree. (In re Marriage of Korper (1985), 131 Ill. App. 3d 753, 759-60, 475 N.E.2d 1333, 1338.) In this case, the circuit court determined that the second method, known as the “reserved jurisdiction approach,” would be more appropriate. The circuit court’s decision to use this approach has never been questioned by the husband.

The “reserved jurisdiction approach” is useful in those situations where the amount of the retirement benefits which will actually be paid out cannot be calculated with any certainty at the time of dissolution of the marriage. The approach avoids the need to speculate about a future stream of pension payments. The value of the retirement benefits is determined simply by how much is actually paid out. An inherent feature of this approach is that if the retirement benefit payments attributable to work done during the marriage subsequently increase after the dissolution, the increase will be allocated among the parties according to the ratio initially fixed by the court for apportioning the retirement benefits. The circuit court therefore was correct in including the cost of living adjustments when it calculated the amount of accrued and unpaid retirement benefits which the husband owed here.

We turn then to the final issue on this appeal, namely, whether the circuit court erred in denying the husband’s motion to modify maintenance. In its judgment of dissolution, the circuit court ordered the husband to pay $400 per month in periodic maintenance. In his motion to modify, the husband argued that periodic maintenance should be terminated because the wife is now employed and is “fully able to support herself.”

Section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 510(a)) provides that the provisions of any judgment respecting maintenance may be modified “only upon a showing of a substantial change in circumstances.” This provision applies where, as here, termination of - maintenance is sought. (In re Marriage of Ingrassia (1987), 156 Ill. App. 3d 483, 488, 509 N.E.2d 729, 733.) Whether the terms of a dissolution judgment providing for maintenance should be modified or terminated rests within the sound discretion of the trial court, and its determination will not be disturbed on review unless the record shows an abuse of that discretion. (In re Marriage of Henzler (1985), 134 Ill. App. 3d 318, 323, 480 N.E.2d 147, 150.) We find no such abuse of discretion here.

Although, as the husband points out, the wife has an advanced college degree, the record indicates that she already had that degree at the time the dissolution judgment was entered. This therefore does not constitute a circumstance which has changed. One thing which has changed is that the wife was eventually able to secure employment. There is evidence in the record which indicates, however, that she has held her new job for only two years and that even with this new source of income, her resources are insufficient to provide for her reasonable needs. The prospects of this situation improving are speculative at best, especially considering that the wife suffers from a physical condition which apparently renders her incontinent. By contrast, the record indicates that the husband has continued to prosper and that he can still comfortably provide the $400 per month in maintenance payments specified in the dissolution judgment. Under these circumstances, we find no basis for disturbing the circuit court’s determination that the maintenance payments should not be terminated.

For the foregoing reasons, the orders of the circuit court of St. Clair County requiring the husband to pay the wife $15,550.47 in accrued and unpaid military retirement benefits and denying the husband’s motion for modification are affirmed.

Affirmed.

HOWERTON and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    RICHARD FRAKES, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Old Ben Coal Company, Appellee).
    Fifth District (Industrial Commission Division)
    No. 5—87—0843WC
    Opinion filed January 31, 1989.
    Brad L. Badgley, of Heiligenstein & Badgley, P.C., of Belleville, for appellant.
    William W. Hart, Jr., of Hart & Hart, of Benton, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner Richard Frakes sought workers’ compensation benefits after he suffered a head injury while working for respondent Old Ben Coal Company. An arbitrator awarded temporary total disability benefits of $247.14 per week for 723/v weeks, and $247.14 per week for 300 weeks as benefits for a permanent partial disability to the extent of 60% of the man as a whole, and medical benefits. The Industrial Commission (Commission) reduced the permanent partial disability benefits from 300 to 50 weeks, finding the extent of the disability was only for 10% of the man as a whole. The Commission affirmed all other aspects of the arbitrator’s decision. The circuit court of Franklin County confirmed the Commission’s decision. Petitioner contends on appeal that the Commission’s finding of only 10% disability is against the manifest weight of the evidence.

On August 9, 1982, the 31-year-old petitioner was working in a mine when a large rock struck his safety helmet. He was taken to the hospital, where he was told to take Tylenol for pain. Nine days later, petitioner began stumbling when he walked, and later experienced severe headaches, nausea and dizziness. Two or three weeks later he began experiencing periods of unconsciousness. Petitioner has not worked since the day of the injury. The mine closed in January 1983.

Petitioner’s wife, Rhonda, testified regarding petitioner’s imbalance, headaches, periodic seizures and periods of unconsciousness. The dozens of seizures he suffered were brought on by motion or activity. Sam Mitchell, Rhonda’s employer and petitioner’s attorney during the initial proceedings in this case, testified that in January 1984 he went to petitioner’s home after receiving a call for help from Rhonda, and found petitioner apparently unconscious. After driving petitioner to see Dr. Thompson at a clinic, Mitchell and a friend carried petitioner back to the car and took him home. Mitchell had observed no other incidents of this nature.

Initially, petitioner’s family physician referred him to Dr. R. Anthony Marrese, who referred him to Dr. M. Coyle Shea, a neurootologist, specializing in ear, nose and throat disorders.

On December 3, 1982, Dr. Shea examined petitioner and found improper eye tracking. He diagnosed post-concussion syndrome. Dr. Shea testified that his chart indicated petitioner had spontaneous vertical nystagmus, directional preponderance and abnormal vertical sinusoidal tracking. His formal report, however, “was not as forcefully stated, I should say, as it really existed.” The report indicates essentially negative results of the key test which Dr. Shea relied upon, an electronystagomography (ENG) test, which records eye movements upon stimulation of different components of the balance system.

Two subsequent visits showed improvement of subjective symptoms. Dr. Shea recommended to petitioner's father and to his family physician that they seek a psychiatric consultation because of petitioner’s depression and suicidal wishes. Dr. Shea believed petitioner had seen a neurosurgeon, but he was unfamiliar with that doctor’s findings. Dr. Shea was primarily an otologist and not a neurologist, and thus he always sends a case like this to a neurologist for further evaluation because it was not an inner ear problem.

Dr. Shea testified that, assuming the history and other “information that I was given is true, then I would have to say that the findings that we have come up with indicate that there was damage done from this injury.” He believed petitioner was probably disabled for work involving machinery. However, because balance and speech problems could easily be feigned, Dr. Shea would prefer to do another ENG before making a recommendation that petitioner not work near machinery.

In July 1983, Dr. David M. Reisler examined petitioner at respondent’s request. Dr. Reisler found no objective signs of injury. All tests were negative. Dr. Reisler could not confirm a diagnosis of cerebral concussion. He saw insufficient evidence of vestibular dysfunction to warrant additional time away from work. Dr. Reisler concluded that there was no evidence of permanent partial disability as a result of the injury, and he opined that petitioner could return to regular employment without restriction.

On December 29, 1983, Dr. Reisler wrote that he had reviewed Dr. Thompson’s 1982 and 1983 records, and had read Dr. Shea’s January 17, 1983, report indicating he detected evidence of spontaneous vertical nystagmus on December 1, 1982. Dr. Reisler repeated that his own examination of petitioner yielded no such indication.

On February 9, 1984, Dr. Reisler wrote that petitioner was hospitalized in January 1984 for neurologic, cardiologic and psychiatric evaluations. Cardiovascular function tests were negative. Neurological tests remained within normal limits. Dr. Reisler concluded that “he demonstrated no evidence of neurologic dysfunction for which he required additional treatment.” Dr. Reisler noted that at the time of the accident “[wjhether the patient actually suffered a concussion with changes in neurologic function or was merely stunned momentarily remains unclear from material available to me.”

Dr. Jon H. Robertson, a neurologist, examined petitioner in April 1984. He reported that Dr. Shea’s evaluation “showed only abnormal vestibular studies which showed no abnormality other than some spontaneous vertical nystagmus and a very slight directional preponderance to the left. It was Dr. Shea’s impression that because of the central vestibular study abnormality, ¡petitioner’s] ‘dizziness,’ had an organic basis.” Dr. Robertson stated that his neurological examination of petitioner was normal. EEG and CT scan tests were also normal. Dr. Robertson concluded: “In view of this gentleman’s normal neurological examination and negative neuro-diagnostic studies, I found no evidence of permanent partial disability related to the injuries which he described occurring in August, 1982.”

In January 1984, Dr. James B. Smith, a psychiatrist, evaluated petitioner. He found petitioner “suffered [from] a significant post-traumatic depression in the first several months following the accident with symptoms of a significant depressive illness being present at that point in time.” At the time of the examination, he found no symptoms of a significant depression and anxiety neurosis. Dr. Smith would release petitioner to resume normal employment activity without restriction as long as Dr. Reisler’s neurological tests were normal.

Before the Commission, on April 25, 1986, petitioner testified that his condition had not improved. He continued under Dr. Thompson’s care. He had not sought work and remained at home during the day.

Petitioner contends that the decision of the Commission finding the extent of his disability was 10% is against the manifest weight of the evidence. It is within the province of the Commission to weigh the evidence, judge the credibility of the witnesses, draw reasonable inferences from the testimony, and determine the nature and extent of the disability. (Interlake, Inc. v. Industrial Comm’n (1983), 99 Ill. 2d 69, 457 N.E.2d 415.) The Commission must resolve disputed questions of fact and resolve conflicting medical evidence. (Material Service Corp. v. Industrial Comm’n (1983), 97 Ill. 2d 382, 454 N.E.2d 655.) The Commission’s determination will not be disturbed unless it is against the manifest weight of the evidence. (Doyle v. Industrial Comm’n (1983), 96 Ill. 2d 364, 449 N.E.2d 1352.) The Commission is not required to adopt the arbitrator’s conclusion as to the extent of petitioner’s disability. Newgard v. Industrial Comm’n (1974), 58 Ill. 2d 164, 317 N.E.2d 524.

The Commission had before it evidence that petitioner suffered little or no permanent disability as a result of the work-related accident. Dr. Reisler examined petitioner several times, including testing during an extensive hospital stay, over a period of several years. All tests were negative. Dr. Reisler repeatedly concluded that petitioner was not disabled and could return to work without restriction.

Petitioner relies heavily on Dr. Shea’s finding of spontaneous vertical nystagmus (improper eye tracking), and diagnosis of post-conclusion syndrome. Dr. Shea acknowledged that his formal report indicated essentially negative results of the ENG. In addition, Dr. Shea declined to conclude that petitioner could not work around machinery until further tests were done. Dr. Shea emphasized that his diagnosis ■was “primarily just stating that this is not an inner ear problem,” and that he always referred such cases to a neurologist. Dr. Shea had seen no findings by a neurologist who examined petitioner.

Dr. Robertson, a neurologist, indicated he did not find Dr. Shea’s findings to be significant. He reported that Dr. Shea’s evaluation “showed only abnormal vestibular studies which showed no abnormality other than some spontaneous vertical nystagmus and a very slight direction preponderance to the left.” All neurological tests performed by Dr. Robertson were normal. He concluded that there was no evidence of permanent partial disability related to the injuries sustained at work.

Dr. Smith believed petitioner might have suffered a post-traumatic depression in the first several months following the accident. However, at the time of the inpatient examinations, he found no symptoms of a significant depression or anxiety neurosis. Dr. Smith opined that petitioner could resume normal employment activity without restriction.

Similarly, no other medical reports in the record indicate any significant permanent disability.

The evidence strongly supports the Commission’s finding that petitioner was 10%, and not 60%, disabled. We hold that the Commission’s findings as to the nature and extent of petitioner’s injuries are not against the manifest weight of the evidence.

For the foregoing reasons, the judgihent of the circuit court of Franklin County, confirming the decision of the Industrial Commission, is affirmed.

Judgment affirmed.

BARRY, P.J., and WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAROLD YARBROUGH, Defendant-Appellant.
    Fifth District
    No. 5-87-0448
    Opinion filed February 17, 1989.
    Donald E. Groshong, of Williamson, Webster, Groshong, Moorman & Falb, of Alton, for appellant.
    Don Sheafor, State’s Attorney, of Vandalia (Kemieth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Darold Yarbrough, appeals from an order of the circuit court of Fayette County denying his motion to dismiss the second prosecution based upon the theory of double jeopardy. Defendant’s issue on appeal is whether the second prosecution was barred by the statute of limitations or by the constitutional limitation of double jeopardy. This court affirms the circuit court’s order.

On May 31, 1985, a bill of indictment, docket No. 85 — CF—29, was filed charging defendant in count III with theft (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(b)(1)). The indictment charged that on or about September 5, 1983, defendant “knowingly obtained by deception control over property of American States Insurance Company, being funds in the amount of $2137.50 *** by causing a certain 1974 Ford F-250 truck to be reported stolen and falsely reported it [stolen] to Charles Pryor to defraud American States Insurance into paying $2137.50.” Count III was later severed from the other counts.

On September 30, 1986, a trial by jury commenced on count III, and on October 6, 1986, the jury was deadlocked. The trial court declared a mistrial and discharged the jury.

However, on March 6, 1987, defendant was indicted on a new indictment with a new docket number of 87 — CF—17 for the same offense of theft as in count III, except it added the following to the previous indictment:

“[T]he said Darold Yarbrough intending to deprive American States Insurance permanently of the use or benefit of said funds, and the Statute of Limitations being tolled in this cause pursuant to Illinois Revised Statutes, chapter 38, section 3 — 7(c) by the prosecution pursuant to Count III of a Bill of Indictment returned and filed May 31, 1985 in 85 — CF—29 in violation of Paragraph 16 — l(bXl), Chapter 38, Illinois Revised Statutes.”

The People’s affidavit stated that it was reindicting defendant “to correct a defective indictment because an essential element of the offense was omitted, namely that defendant intended to deprive the true owner permanently of the use or benefit of its property.”

Soon thereafter, on March 30, 1987, the People filed a motion to nol-pros on count III of the original May 31, 1985, indictment, No. 85— CF — 29. The trial court entered an order granting the People’s motion.

On May 1, 1987, defendant filed a motion to dismiss with prejudice because defendant had been charged with the same offense. Defendant also alleged: (1) that the previous offense “failed to allege that defendant intended to permanently deprive the owner of the use or benefit of the property allegedly stolen”; (2) that the State dismissed the prior offense and action on March 30, 1987; (3) that the same and prior offense was tried by a jury trial and resulted in a mistrial due to a hung jury; and (4) that the present charge, which was filed on March 6, 1987, was neither a continuation of the prior and same offense nor identical. Defendant argued that the present cause was barred by the statute of limitations, right to speedy trial and double jeopardy and as such the trial court does not have jurisdiction.

On May 15, 1987, the court denied in part defendant’s motion to dismiss based on the statute of limitations and the right to a speedy trial. The remaining argument of double jeopardy was taken under advisement. On May 26, 1987, the court entered a written order confirming its prior order of partial denial of defendant’s motion to dismiss and added that it denied his motion to dismiss on the remaining ground of double jeopardy. From this order, defendant appeals.

The issue initially presented is whether a previous void indictment which was nol-prossed after a deadlocked jury bars a new indictment in a new cause charging the same offense.

Double jeopardy prevents a person from being twice put in jeopardy for the same offense. (U.S. Const., amend. V; Ill. Const. 1970, art. I, §10.) Section 3 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 3 — 4) specifically provides the grounds in which double jeopardy acts as a bar to a subsequent prosecution. Section 3 — 4(a) provides, in part:

“(a) A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:
* * *
(3) Was terminated improperly after the jury was impaneled and sworn ***.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 3 — 4(a)(3).)

An improper termination is not one required by “manifest necessity,” that is, because of circumstances beyond the control of the parties and court, it becomes no longer possible to conduct a trial or to reach a fair result based upon the evidence. (People v. Turner (1982), 105 Ill. App. 3d 393, 396, 434 N.E.2d 428, 431.) In this case, both parties agree that it was a matter of manifest necessity to terminate the proceedings because the jury was deadlocked and a retrial would not be barred. Thus, this court finds that jeopardy had not effectively attached because the trial court properly terminated the trial due to manifest necessity, and that termination would not bar a second trial on double jeopardy-grounds. Illinois v. Somerville (1973), 410 U.S. 458, 35 L. Ed. 2d 425, 93 S. Ct. 1066; People v. Hudson (1970), 46 Ill. 2d 177, 263 N.E.2d 473; People v. Hall (1975), 25 Ill. App. 3d 992, 324 N.E.2d 50.

We must next determine the effect, if any, of the nolle prosequi. When the People nol-pros after jeopardy attaches, they are barred from subsequent prosecution of the same charge. (People v. Jackson (1971), 132 Ill. App. 2d 1059, 271 N.E.2d 673.) Normally jeopardy attaches when, in a jury trial, the jury is selected and then sworn. (People v. Shields (1979), 76 Ill. 2d 543, 394 N.E.2d 1161.) In this case, however, after the swearing of the jury, jeopardy did not effectively attach due to proper termination of the trial, as noted above. No double jeopardy bar arises if the nolle prosequi occurs before jeopardy attaches. (People v. Mooar (1981), 92 Ill. App. 3d 852, 416 N.E.2d 81.) While no authority exactly on point has been cited by the parties, we conclude that due to the proper declaration of a mistrial, no jeopardy attached for purposes of barring reprosecution in a new case subsequent to nolle prosequi as well as reindictment and retrial in the same case without a nolle prosequi. See People v. Miller (1965), 55 Ill. App. 2d 146, 204 N.E.2d 305, reversed in part and vacated in part (1966), 35 Ill. 2d 62, 219 N.E.2d 475.

Defendant further argues that this action is barred by the statute of limitations. The People argue that the prior pending indictment tolled the statute. Despite the defect in the original indictment, the trial court had jurisdiction of the subject matter (People v. Gilmore (1976), 63 Ill. 2d 23, 344 N.E.2d 456), and no party has claimed lack of jurisdiction over the People or defendant. (See People v. Pankey (1983), 94 Ill. 2d 12, 445 N.E.2d 284.) Given jurisdiction, the prior indictment need not be valid but must be sufficient to inform defendant of the circumstances of the charged offense so that he can prepare his defense and must involve the same conduct as the subsequent indictment. (People v. Gallo (1973), 54 Ill. 2d 343, 297 N.E.2d 569.) In this case, the prior indictment met these requirements and therefore effectively tolled the statute of limitations.

The order of the circuit court of Fayette County denying defendant’s motion to dismiss is affirmed, and the cause is remanded for further proceedings.

Affirmed and remanded.

HARRISON and HOWERTON, JJ., concur.


author: PRESIDING JUSTICE FREEMAN

text:
    ROBERT W. ANDERSON, Plaintiff-Appellant, v. JOSEPH M. SCONZA, Defendant-Appellee.
    First District (3rd Division)
    No. 88—0520
    Opinion filed January 25, 1989.

      Metzger & Associates, Ltd., of Chicago (Donald L. Metzger, of counsel), for appellant.
    Norman H. Lesser & Associates, of Chicago (Norman H. Lesser, of counsel), for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, Robert W. Anderson, appeals from the trial court’s granting of the motion of defendant, Joseph M. Sconza, for summary judgment and the denial of the cross-motion of plaintiff for partial summary judgment. Plaintiff’s action alleges that defendant breached a contract for attorney fees for defendant’s representation of plaintiff in an employment discharge proceeding before the Chicago Police Board.

On appeal plaintiff asserts that: (1) defendant failed to show that the fee agreement was made with good faith, fairness, adequacy of consideration, and without undue influence; (2) defendant failed to show that the agreement was reasonable; (3) the computation of fees under the agreement is incorrect; and (4) defendant was not entitled to relief on his counterclaim since he failed to file an amended counterclaim after plaintiff filed an amended complaint.

For the reasons stated below, we reverse the judgment of the circuit court.

The record indicates that prior to July 1980, charges had been filed with the Chicago Police Board seeking the separation of plaintiff from the police department for failure to have the psychological and emotional stability required to perform his duties as a police officer. In July 1980, plaintiff was referred to defendant for legal assistance, and defendant agreed to represent plaintiff regarding the police board proceeding. Defendant and his associate, Anthony Onesto, thereafter began to represent plaintiff in the matter, appearing before the police board on motions and otherwise preparing plaintiff’s case before the board. On August 15, 1980, pursuant to defendant’s request, plaintiff paid defendant $750 in attorney fees. Plaintiff paid defendant an additional $750 in attorney fees on March 23, 1981, and another $1,000 in attorney fees on June 12,1981.

Also on June 12, 1981, the parties executed a written contingent fee contract providing that plaintiff would pay to defendant:

“1. A basic fee of $2,500.00, for representation before the Police Board only, not to include Administrative Review, $1,000.00 of which is refundable if client’s total loss [sic] wages are recovered.
2. Plus 25% of client’s loss [sic] wages, if any, that are recovered.”

The police board case was argued on November 18, 1981. On February 10, 1983, the board entered its order dismissing the charges against plaintiff and reinstating plaintiff’s position in the police department. Defendant had filed a notice of attorney’s lien upon plaintiff’s cause of action. In February 1983, the police department issued checks payable jointly to plaintiff and defendant for the back pay owed to plaintiff.

On April 28, 1983, plaintiff filed his action in the circuit court against defendant. During the pendency of the action, plaintiff died and his surviving spouse, Jane Anderson, was appointed as special administrator. Thereafter, defendant filed a motion for summary judgment and plaintiff filed a cross-motion for summary judgment. The depositions of defendant and defendant’s associate, Anthony Onesto, were filed with the court. Defendant attached to his motion for summary judgment the affidavits of attorneys James J. Ahern and Thomas J. Royce. Plaintiff attached to his memorandum of law in opposition to defendant’s motion for summary judgment portions of the depositions of defendant and Anthony Onesto.

The trial court found that the presumption of undue influence attached, since the fee contract was executed after the attorney-client relationship was established. The court found, however, that defendant had overcome the presumption of undue influence for several reasons. First, defendant had a heavy burden to overcome in the police board case, in that he was required to rebut the allegation that plaintiff was psychologically unfit to serve as a police officer. Further, the affidavits of attorneys Thomas J. Royce and James J. Ahern provided that they had represented clients before the police board on a contingent fee basis. The trial court held that those affidavits showed that it was customary for attorneys to represent clients before the police board on a contingent fee basis. The trial court stated that “defendant has overcome this presumption and is entitled to summary judgment which it seeks.” Upon the granting of defendant’s motion for summary judgment, plaintiff brought a motion to set aside the summary judgment order, which the trial court denied.

On appeal, the parties do not dispute that the presumption of undue influence attached. Plaintiff contends, however, that defendant failed to present sufficient evidence to rebut the presumption of undue influence. We find that the trial court misconstrued the effect of the presumption and determine that summary judgment was not appropriate. Accordingly, we reverse and remand this matter to the trial court for the purpose of allowing the parties to present further evidence on the issues raised.

The supreme court in Diederich v. Walters (1976), 65 Ill. 2d 95, 357 N.E.2d 1128, discussed the approach taken by courts in Illinois regarding the effect of presumptions. The court stated:

“[A] rebuttable presumption may create a prima facie case as to the particular issue in question and thus has the practical effect of requiring the party against whom it operates to come forward with evidence to meet the presumption. However, once evidence opposing the presumption comes into the case, the presumption ceases to operate, and the issue is determined on the basis of evidence adduced at trial as if no presumption had ever existed. (See 1 Jones, Evidence sec. 3:8 (6th ed. 1972).) The burden of proof thus does not shift but remains with the party who initially had the benefit of the presumption. Consistent with this view, Dean Wigmore states, '*** If the opponent does offer evidence to the contrary (sufficient to satisfy the judge’s requirement of some evidence), the presumption disappears as a rule of law, and the case is in the jury’s hands free from any rule ***.’ (9 Wigmore, Evidence sec. 2491, at 289 (3d ed. 1940).)” (Diederich, 65 Ill. 2d at 100-01.)

(See also Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 448 N.E.2d 872.) The burden of proof thus does not shift but remains with the party who initially had the benefit of the presumption. (Dean, 95 Ill. 2d 452, 448 N.E.2d 872.) In the instant case, the burden of proof remains throughout the case on plaintiff to show that the agreement was not reasonable and fair.

The amount of evidence required to meet the presumption of undue influence, once raised, is not determined by any fixed rule. The supreme court in Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 448 N.E .2d 872, stated, “[a] party may simply have to respond with some evidence or may have to respond with substantial evidence. If a strong presumption arises, the weight of the evidence brought in to rebut it must be great.” (Dean, 95 Ill. 2d at 463, citing 5 A.L.R.Sd 19, 39 n.14 (1966).) The Dean case also looked to Wunderlich v. Buerger (1919), 287 Ill. 440, 122 N.E. 827, in which the court stated, “[t]he strength of the presumption and the amount of proof required to overcome it must depend on the circumstances of each case.” (Wunderlich, 287 Ill. at 445.) The general rule remains, however, that throughout the case, the burden of proof is upon the party seeking to invalidate the agreement to establish undue influence based on all of the evidence. Dean, 95 Ill. 2d at 464.

That a fiduciary duty exists as a matter of law between an attorney and client is well established. (See Neville v. Davinroy (1976), 41 Ill. App. 3d 706, 709, 355 N.E .2d 86, 88-89.) All transactions arising out of such a relationship, including fee contracts, are subject to the closest scrutiny. (Neville, 41 Ill. App. 3d at 709.) Particular attention is given to contracts made or changed after the relationship of attorney and client has been established. Corti v. Fleisher (1981), 93 Ill. App. 3d 517, 522, 417 N.E.2d 764, 768.

The presumption of undue influence where an attorney fee contract is entered into after the establishment of the attorney-client relationship and the payment of at least some attorney fees is a strong presumption. (See Corti v. Fleisher (1981), 93 Ill. App. 3d 517, 522, 417 N.E .2d 764, 768.) Therefore, defendant in the instant case was required to bring substantial evidence to rebut the presumption. See Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 448 N.E.2d 872; Wunderlich v. Buerger (1919), 287 Ill. 440, 122 N.E. 827.

In order to rebut the presumption of undue influence arising from an attorney-client relationship, an attorney must present evidence indicating that: (1) the attorney made a full and fair disclosure to the client of all the material facts affecting the transaction at issue; and (2) the transaction in question is fair. (Durr v. Beatty (1986), 142 Ill. App. 3d 443, 450, 491 N.E.2d 902, 907, citing Neville v. Davinroy (1976), 41 Ill. App. 3d 706, 709, 355 N.E.2d 86, 88-89, and Drake v. Becker (1973), 14 Ill. App. 3d 690, 694, 303 N.E.2d 212, 214.) Other factors which should be considered are that the consideration for any agreement made was adequate and that the client had competent and independent advice before completing the transaction. Rizzo v. Rizzo (1954), 3 Ill. 2d 291, 305,120 N.E.2d 546.

In the instant case, the trial court granted summary judgment without receiving evidence regarding these factors. In view of the strong presumption of undue influence under the circumstances of this case, we vacate the entry of summary judgment entered in favor of defendant and remand this matter to the trial court to allow for a trial of the issues raised. See Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 448 N.E.2d 872.

Finally, we address plaintiff’s contention that defendant was not entitled to relief, since he failed to file a counterclaim after plaintiff filed an amended complaint. We reject plaintiff’s argument, since a counterclaim is a pleading which is “complete in itself,” as provided in section 2 — 608(c) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 608(c)). As stated by the court in Benckendorf v. Burlington Northern R.R. (1983), 112 Ill. App. 3d 658, 445 N.E.2d 837, a counterclaim differs from an answer in that it seeks affirmative relief, whereas an answer merely attempts to defeat the plaintiff’s action. (Benckendorf 112 Ill. App. 3d at 662.) That defendant failed to file an amended counterclaim after plaintiff filed an amended complaint, therefore, does not defeat defendant’s claim for relief.

For the foregoing reasons, we reverse the judgment of the trial court and remand this matter to the trial court for further proceedings consistent with this opinion.

Judgment reversed and cause remanded.

McNAMARA and WHITE, JJ., concur.


text:
    JULIA GIBSON, Plaintiff-Appellant, v. RUSSANN, LTD., Defendant-Appellee.
    First District (3rd Division)
    No. 88—1033
    Opinion filed January 25, 1989.

      Steven A. Sigmond, of Benjamin & Shapiro, Ltd., of Chicago, for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Ruth E. VanDemark, Stanley V. Boychuck, and Aaron T. Shepley, of counsel), for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

On January 29, 1984, plaintiff, Julia Gibson, filed suit against the original defendant, International House of Pancakes, Inc. (IHOP), for personal injuries sustained when plaintiff fell in an International House of Pancakes Restaurant in Chicago on January 20, 1983. On June 17, 1986, the trial court entered summary judgment for IHOP and allowed plaintiff to file an amended complaint naming IHOP’s franchisee, Russann, Ltd. (Russann), as defendant. Plaintiff filed that complaint on June 23, 1986, and served summons upon Russann on June 27. Plaintiff appeals the trial court’s dismissal of her amended complaint, which was dismissed on the ground that Russann had not been served with summons within the applicable limitations period of two years. 111. Rev. Stat. 1983, ch. 110, par. 13 — 202.

On appeal, plaintiff contends that section 2 — 616(d) of the Civil Practice Law (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 616(d)) allows the relation back of the amended complaint against Russann to the filing date of the original complaint against IHOP. Specifically, plaintiff asserts that service of summons upon IHOP’s registered agent satisfied the requirement of section 2 — 616(d)(3) for relation back that “service of summons was in fact had upon the person, his *** agent or partner, as the nature of the defendant made appropriate, even though he *** was served in the wrong capacity or as agent of another.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 110, par. 2 — 616(d)(3).

Focusing on the italicized language, plaintiff asserts that the nature of IHOP and Russann, their relationship and plaintiff’s knowledge about them, justify relation back of the amended complaint. Plaintiff asserts that to be given effect, the italicized language must be construed as relaxing the literal requirement in section 2 — 616(d)(3) of an agency relationship between the party originally served with summons and the party later sought to be substituted as a defendant.

We disagree with plaintiff’s construction of section 2 — 616(d)(3) for several reasons. Initially, we find the cases which plaintiff cites as supporting that construction inapposite to this case.

In Hix v. Amato (1977), 50 Ill. App. 3d 761, 365 N.E.2d 1148, Hix, seeking recovery for personal injuries under the Dramshop Act (Ill. Rev. Stat. 1975, ch. 43, par. 94 et seq.) and common law negligence, sued Amato, the liquor licensee of the dramshop in which he was injured. Eventually, Amato sought summary judgment on the negligence count on the ground that he was not in possession or control of the dramshop when Hix was injured therein. The trial court granted Amato a summary judgment. It also denied Hix leave to file an amended complaint against Galloway, who admitted the existence of an oral lease with Amato and also admitted operating the dram-shop under Amato’s liquor license. In so doing, the trial court concluded that the requirement of service of summons upon the party, his agent or partner of now section 2 — 616(d)(3) had not been met. Disagreeing, the appellate court concluded that service upon Amato satisfied now section 2 — 616(d)(3).

Contrary to plaintiff’s assertion, Hix is not on point. In so arguing, plaintiff ignores the basis of the appellate court’s conclusion therein. It was in light of the illegality under the Dramshop Act of the arrangement between Amato and Galloway and the legislative mandate of a liberal construction of the Act which caused the court to conclude that “it would be proper to consider Amato as the agent of Galloway for the purpose of service of process in matters relating to the [dramshop] of which Amato was the sole licensee.” (Hix, 50 Ill. App. 3d at 765.) Plaintiff does not cite any illegality here similar to the illegality of the arrangement in Hix. Hix is thus of no avail to her.

In Bisset v. Joseph A. Schudt & Associates (1985), 133 Ill. App. 3d 356, 478 N.E.2d 911, the plaintiff sued the civil engineer for the Village of Lemont. At the time the plaintiff’s cause of action accrued, the defendant was a partnership operated by Schudt and Ranney. Thereafter, but before plaintiff filed suit, Schudt and Ranney incorporated. The plaintiff filed the action against the corporation and then amended it to substitute the partnership. The appellate court held that the trial court properly allowed the amendment under section 2— 616(d).

Plaintiff incorrectly asserts that the plaintiff in Bisset was allowed to amend his complaint under section 2 — 616(d) to bring in the corporation that was the successor in interest to the partnership originally joined as defendant. More importantly, plaintiff ignores the fact that the partnership and corporation in Bisset were operated by the same individuals. While the appellate court did not expressly so state, we believe it was that fact which motivated it to uphold the amendment of the complaint. Otherwise, we see no reason to hold the actions of an original defendant against a subsequently joined defendant as the court did when it stated:

“[B]ut for the actions of the defendant, amendment might have been had before the statute [of limitations] had run. *** Defendant answered the complaint and interrogatories as a corporation. In doing so, it admitted that it was the entity that contracted with the village. Plaintiff discovered the intervening incorporation, after the statutory period had run, in a deposition of George Ranney. Plaintiff soon thereafter amended the complaint. We find the trial court’s allowance of the amendment to be most proper in this case.” (Bisset, 133 Ill. App. 3d at 359.)

In contrast to the situation in Bisset, IHOP and Russann were not operated by the same individuals at any pertinent time. As such, the justification in Bisset to uphold the amendment of plaintiff’s complaint is lacking here.

In Corn v. Lorain Division, Koehring Co. (1981), 94 Ill. App. 3d 152, 418 N.E.2d 809, the plaintiff originally sued a subsidiary corporation and later sought to bring in the parent corporation. The appellate court ruled that he should have been allowed to do so under section 2 — 616(d) where, inter alia, service of the original summons was made upon the registered agent of both the parent and subsidiary corporations and the vice-president of both corporations had knowledge of the action before the statute of limitations expired.

Corn is clearly distinguishable. Here, plaintiff did not serve the original summons upon the registered agent of both IHOP and Russann. Rather, she seeks to have this court deem service of summons upon IHOP’s registered agent as satisfying the requirements of section 2 — 616(dX3). Moreover, unlike the Corn plaintiff, plaintiff here does not adduce any facts to show that the party sought to be substituted under section 2 — 616(d) actually knew of the action before the statute of limitations expired. Instead, plaintiff merely asserts that it was “extremely likely” that Russann knew of her action before that time because IHOP and Russann were represented by the same attorneys and IHOP produced documents bearing the signature of Russann’s president. This “extreme likelihood” does not satisfy the knowledge requirement of section 2 — 616(d)(4). Corn is unavailing to plaintiff.

Thus, plaintiff’s construction of section 2 — 616(d)(3) is not supported by its cited cases. Moreover, that construction, as Russann notes, violates the rule that the plain and unambiguous words of a statute must be given effect as written and without searching for any subtle or hidden legislative intent. (Kozak v. Retirement Board (1983), 95 Ill. 2d 211, 215-16, 447 N.E.2d 394.) In this regard, we find that, when read with the language which immediately precedes it in section 2 — 616(d)(3), the language upon which plaintiff relies unambiguously and merely recognizes that the entity originally served with summons, a person, agent or partner, depended upon the nature of the defendant involved, i.e., upon whether the defendant was a person, corporation or partnership. (See Ill. Rev. Stat. 1983, ch. 110, pars. 2 — 203, 2 — 204, 2 — 205.) It does not serve to relax the requirements of service upon a person, his agent or partner on a case-by-case basis, as plaintiff’s construction would allow. This conclusion is buttressed by the lack of a conjunctive “and” or disjunctive “or” between the language upon which plaintiff relies and that immediately preceding it.

Rather than the foregoing cases, we find Slates v. International House of Pancakes, Inc. (1980), 90 Ill. App. 3d 716, 413 N.E.2d 457, dispositive of the issue raised by plaintiff.

In Slates, the plaintiff sued IHOP, a California corporation, the franchisor of the restaurant in which she was injured. Service of summons was made upon an employee of the corporate franchisee of the restaurant. In affirming the trial court’s order quashing service upon IHOP, the court rejected arguments of the plaintiff similar to those of plaintiff here.

Specifically, the court disagreed that the franchisee’s employee could be the agent of the franchisor for service of summons absent an agreement to such effect. The court also rejected the argument that the franchisee was the agent of the franchisor so that service upon their employee and agent was effective as to IHOP. The court also disagreed with the plaintiff that the franchise agreement, which gave IHOP a high degree of supervision over the franchisee, established an agency between them, despite the expression of the franchise agreement to the contrary. Finally, the court rejected the plaintiff’s reliance on the apparent agency of the franchisee’s employee to receive service of summons upon the franchisor. The court held that an agent must have actual authority for service of process upon him to be effective as to his principal. Slates, 90 Ill. App. 3d at 723-28.

In view of Slates, we find meritless the contention that the nature of the relationship between IHOP and Russann, i.e., franchisor and franchisee, or the degree of control which IHOP had over Russann under their franchise agreement, justifies holding that IHOP was Russann’s agent for purposes of serving process upon Russann as required under section 2 — 616(d)(3). It is therefore irrelevant that, as plaintiff asserts, the other requirements of section 2 — 616(d) may have been met in this case.

We next reject plaintiff’s contention, based on the nature of the relationship between IHOP and Russann, that fundamental fairness requires application of section 2 — 616(d) to this case. Like the cases plaintiff cites for her construction of section 2 — 616(d)(3), the cases cited for this argument are also inapposite.

In Silver v. Lee Shell Equipment Corp. (1961), 31 Ill. App. 2d 266, 175 N.E.2d 287, the plaintiffs served the original corporate defendant through its agent and officer, I.W. Shell. Fearing that I.W. Shell and William Shell were not doing business as a corporation when their claim accrued, the plaintiffs sought to substitute the Shells as individual defendants. While plaintiff cites language in Silver favorable to her fundamental fairness argument, she ignores the following:

“The primary basis for allowing such an amendment is knowledge of the suit through actual service on the person sought to be added or substituted or his partner or agent within the period of the statute of limitations, albeit he was served in the wrong capacity. ***
In the instant case, the individual defendants had knowledge of the suit by reason of the service on I.W. Shell. They had in fact investigated it and taken an active part in the defense. It is a most appropriate case for application of [now section 2— 616(d)].” (Silver, 31 Ill. App. 2d at 270-71.)

As plaintiff has failed to show Russann’s knowledge of her action through actual service on it or on IHOP as Russann’s agent, Silver does not support her fundamental fairness argument.

We also find distinguishable Campbell v. Feuquay (1986), 140 Ill. App. 3d 584, 488 N.E.2d 1111. Therein, in substantially the same manner as the corporation in Bisset, Feuquay, whom the plaintiff sought to substitute as defendant in his personal injury action, failed to disclose that she operated the business involved as an individual, not as a corporation, although she had knowledge of the action from its institution. There was no conduct by Russann here comparable to that of the parties sought to be substituted as defendants in Campbell or Bisset.

Plaintiff cites the Campbell court’s reliance on the fact that Feuquay would not be prejudiced by allowing the plaintiff to substitute her as the defendant in his action. The absence of prejudice or surprise to the opponent is generally a factor in determining whether to allow the amendment of pleadings. (See, e.g., DiBenedetto v. DuPage County (1986), 141 Ill. App. 3d 675, 491 N.E.2d 13.) However, we do not believe it requires the allowance of such amendments where the requirements of section 2 — 616(d) have not been met.

Finally, plaintiff has failed to show that, in an attempt to escape liability, Russann committed any conduct “confusing its identity through a complex intermingling of its [corporation] names and structure with that of other similar corporations.” Bates v. Wagon Wheel Country Club, Inc. (1971), 132 Ill. App. 2d 161,167, 266 N.E.2d 343.

For all of the foregoing reasons, the order of the circuit court dismissing this cause with prejudice is affirmed.

Affirmed.

McNAMARA and WHITE, JJ., concur.


author: PRESIDING JUSTICE MURRAY

text:
    CARLOS RAMOS, Plaintiff-Appellee, v. PRAHLAD PYATI, Defendant-Appellant.
    First District (5th Division)
    No. 87—1709
    Opinion filed January 27, 1989.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Douglas H. Momeyer, and Nancy G. Lischer, of counsel), for appellant.
    Robert W. Karr and Marion A. Morawicz, both of Robert W. Karr & Associates, Ltd., of Chicago (Sidney Z. Karasik, of counsel), for appellee.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Defendant, Prahlad Pyati, M.D., appeals from several rulings of the trial court in a medical malpractice suit filed by plaintiff, Carlos Ramos, in which he alleged that defendant performed surgery on his hand outside the scope of the surgery to which he had consented. Specifically, defendant contends that: (1) the trial court erred in denying his motion for a directed verdict because plaintiff failed to prove a prima facie case of medical malpractice; (2) the court erred in directing a verdict in favor of plaintiff based on its conclusion that plaintiff did not consent to the use of the ring finger tendon as a donor tendon; and (3) the court abused its discretion in limiting his expert’s opinion testimony. For the reasons set forth below, we affirm.

The record discloses that in November 1977 plaintiff injured his thumb while at work. He was referred to defendant, after seeing three other doctors, in February 1978. Defendant subsequently diagnosed plaintiff’s injury as a ruptured thumb tendon and, after obtaining plaintiff’s consent to surgically repair the tendon, he operated on the thumb. During the course of the operation, defendant was unable to join the two ends of the ruptured tendon because of scar tissue which had formed and caused the ends to retract. He then examined plaintiff’s palmaris longus (wrist) tendon and found it unsuitable as a donor to bridge the gap between the ends of the ruptured tendon. Defendant proceeded to examine '“the already exposed area for another available, suitable tendon” and chose the digitorum sublimis superfieialis (ring finger) tendon. After the surgery, plaintiff continued to see defendant for approximately one month.

In July 1979, plaintiff filed an action against defendant for medical malpractice, alleging that his hand was “rendered unusable for his customary mode of employment” and that defendant had breached his duty by not: (1) advising him of the serious nature of the proposed operations; (2) exercising a proper degree of care in the performance of the operation; and (3) discontinuing the surgery when he knew or should have known that the “required surgery” would probably cause a greater disability than the already injured condition of his thumb.

At trial, plaintiff testified that although he signed a written consent form authorizing surgery on his thumb, he did not consent to a graft of his ring finger tendon or any other tendon. Plaintiff further stated that defendant only told him that he would have “two small operations” in his wrist to repair his thumb injury; that after the surgery and a cast that had been placed on his hand was removed, he experienced stiffness in his hand and discovered five scars from incisions made by defendant; and that as a result of the surgery he cannot bend his ring finger independently of his other fingers, he has trouble picking up nuts and bolts and handling his tools which he uses in his occupation as a mechanic, and he does not have the same grip strength that he had prior to the surgery.

Defendant testified that due to the passage of time and the number of patients he had seen since treating plaintiff (nine years), he could not remember the specifics of the conversations he had with plaintiff concerning his surgery. Based on his custom and practice, however, he stated that he would have explained the surgical procedure to plaintiff and the consequences of treatment. Specifically, defendant would have explained to plaintiff that he would attempt to rejoin the ends of the ruptured tendon or, if he could not do so, he would graft his wrist tendon to do so. He also would have advised plaintiff that if the wrist tendon was unsuitable, he would use a tendon from another source. Defendant further stated, however, that it was likely since he had not planned to use the ring finger tendon, he would not have told plaintiff that he was planning to use it. Additionally, defendant testified that he did not consider using plaintiff’s calf tendon as a donor tendon because its use might require getting another consent from plaintiff.

With respect to the preferred choice of donor tendons, Dr. Donald Miller, plaintiff’s expert witness, testified that the ring finger tendon is the last choice of four other tendons based upon medical texts relied on at trial. Dr. Miller described the order of use of the preferred donor tendons as (1) the wrist tendon, (2) the calf tendon, (3) toe ex-tensor tendons, (4) small or index finger tendons, and (5) the ring finger tendon. He further explained that the ring finger tendon is the last choice because it, unlike the other tendons that are “fine” and nonfunctional, does not have as much elasticity as the nonfunctional tendons to provide the greatest amount of flexion, and it has a function — “serves a purpose.” Additionally, Dr. Miller stated that removal of the ring finger tendon results in a little weakening of that finger and loss of “some of the elasticity and strength of the hand.” He also stated that he had used the ring finger tendon in two instances — accident cases — only because the other preferred tendons were unavailable. It was Dr. Miller’s opinion that had defendant used a tendon other than the ring finger tendon, plaintiff’s flexion in his thumb would be greater than it is and his ring finger, unimpaired, would be normal, and plaintiff would have greater strength in his hand. Accordingly, it was Dr. Miller’s opinion that defendant therefore deviated from the standard of care. Lastly, Dr. Miller stated, in response to a question on direct examination whether failure to tell plaintiff prior to surgery about the possible use of the ring finger tendon was a deviation from the standard of disclosure, “that in [the] form of consent telling the patient exactly what is to be done is very important, specifically spell it out and define it so that there was a breach of care.”

The testimony of Dr. John Bell, defendant’s expert witness, was limited to his opinion given in a deposition taken by plaintiff based on defendant’s failure to answer in writing interrogatories submitted to him pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220), i.e., that the operative procedure was in conformity with acceptable medical practice.

During the trial, defendant moved for a directed verdict at the close of plaintiff’s case on the grounds that plaintiff failed to present evidence that defendant’s alleged failure to obtain an informed consent from plaintiff proximately caused his injury, there was no evidence showing that the operation had caused loss of flexion or other injury, plaintiff’s claim that his hand was “unusable” for his customary employment was disproved since he had testified that he had continued working at his former job after the surgery, and plaintiff had failed to prove a prima facie case for medical malpractice. The court denied defendant’s motion. At the close of all the evidence, plaintiff moved for a directed verdict on the issues of consent, absence of consent, and proximate cause “between the performance of the surgery and the resultant injury.” The court granted the motion as to the absence of consent for the use of the ring finger tendon as a donor, but denied it as to proximate cause and did not direct a verdict as to the thumb surgery. Prior to closing statements, the court instructed the jury on the directed verdict as follows:

“The Court has decided, as a matter of law in this case, that the defendant, Dr. Pyati, is liable to the plaintiff, Mr. Ramos, for failure to get the consent of Mr. Ramos to the surgery on his ring finger.
The amount of damages to be awarded, if any, to the plaintiff for this liability will be decided by the jury. All other issues of liability and damages are to be decided by the jury.”

The jury subsequently returned a verdict on the issue of liability as to the use of plaintiff’s ring finger tendon, as instructed by the court, and assessed damages in the amount of $94,000. No verdict was returned as to plaintiff’s thumb. This appeal followed.

Defendant first argues that the trial court erred in denying his motion for a directed verdict at the close of plaintiff’s case because he failed to prove a prima facie case of medical malpractice. The elements which must be proved by a plaintiff to establish medical malpractice are: (1) the standard of care by which the physician’s treatment is measured; (2) a deviation from that standard; and (3) that the deviation proximately caused the plaintiff’s injury. (Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 328 N.E.2d 301; Newell v. Corres (1984), 125 Ill. App. 3d 1087, 466 N.E.2d 1085.) Proof of these elements is generally based upon expert testimony, unless the conduct is so grossly negligent or the treatment so common that a layman may understand the conduct without the necessity of expert testimony. (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 381 N.E.2d 279.) Failure to prove any one of these elements requires a directed verdict in a defendant’s favor. Walski, 72 Ill. 2d 249, 381 N.E.2d 279.

Here, defendant contends that plaintiff failed to prove by expert testimony the standard of care to which defendant was held, asserting that defendant’s choice of tendons was merely a matter of preference and therefore an alternative method of treatment which is not a basis for establishing negligence. (See Walski v. Tiesenga (1978), 72 Ill. 2d 249, 381 N.E.2d 279.) Since plaintiff’s expert testified that any of the other tendons are useful to the performance of plaintiff’s type of operation, defendant asserts that his use of the right finger tendon was within acceptable medical practice.

We disagree with defendant’s reasoning. At trial the parties were required to establish the standard of care based on their personal expertise and two medical texts. We note even though the order of preferred tendons varies in the texts, use of the ring finger tendon is the last choice in both texts. We conclude, as apparently did the jury, that the reason for the ring finger tendon’s position in last place is because, as Dr. Miller explained, it lacks the elasticity of the other tendons and is a functional, rather than a nonfunctional, tendon and removal of it results in some physical impairment. Plaintiff’s expert therefore established a sufficient standard of care; the ring finger tendon is to be used only if no other tendons are available.

Defendant also contends that plaintiff failed to prove damages. Defendant points out that plaintiff claimed that his hand was unusable for his customary mode of employment, yet plaintiff admitted that after the operation his hand was usable for his job since he was able to continue his work duties as a loader and could still lift packages weighing over 100 pounds. Defendant apparently forgot the fact, however, that in a pretrial conference his counsel, along with plaintiff’s counsel, agreed to change the language of plaintiff’s claim that his hand was “unusable for his customary mode of employment” to “less usable” for “everything” involving the use of his hand. We also observe that plaintiff’s job as a loader is different from his work as a mechanic in which he, subsequent to the operation, has experienced difficulty in using his tools and picking up small objects.

Similarly, we reject defendant’s argument that plaintiff’s claim for scarring is spurious because plaintiff knew there would be incisions when he consented to the operation. We cannot determine what weight the jury gave to this issue, but the fact remains that there were five incisions, rather than the two plaintiff consented to when the operation was explained to him. Defendant further argues that there was no evidence that plaintiff’s thumb was injured or worsened as a result of the operation. We find it unnecessary to address this argument because the jury did not enter a verdict on plaintiff’s thumb injury claim and, therefore, no issue exists on this point. As regards defendant’s assertion that plaintiff failed to show that his ring finger was damaged because the use of the ring finger tendon normally results in a little weakening of the end joint of that finger, some loss of elasticity, and loss of strength in the hand, we first observe that plaintiff did not consent to the use of his ring finger tendon, as discussed below, and, secondly, this normal result would not have occurred had defendant used a nonfunctional tendon. Plaintiff therefore sufficiently proved damages.

Defendant further contends that plaintiff failed to prove a lack of informed consent and, arguendo, if he did not consent to the grafting of his ring finger tendon, he nonetheless failed to prove that breach of the standard of disclosure proximately caused any damage. In support thereof, defendant asserts: (1) that plaintiff’s expert witness, Dr. Miller, did not establish the medical standard of disclosure but merely expressed his opinion on how to avoid legal liability in a written consent form; (2) that he owed no duty to inform plaintiff of the “remote” risk that he might have to use another tendon if the wrist tendon was unsuitable; (3) that once plaintiff consented to the surgical procedure, his consent extended to all necessary actions taken during the course of the operation, expressly and impliedly; and (4) there was no evidence, expert or otherwise, as to whether a prudent person in plaintiff’s position would have declined the procedure followed by defendant.

As correctly stated by defendant, a plaintiff, who claims lack of informed consent as a basis for recovery, must prove the standard of disclosure by expert testimony, i.e., “that the reasonable medical practitioner of the same school, in the same or similar circumstances, would have told the patient of such risks, or that the disclosures as made *** did not meet the standard of what a reasonable medical practitioner would have disclosed under the same or similar circumstances.” (Green v. Hussey (1970), 127 Ill. App. 2d 174, 184, 262 N.E.2d 156.) It is also well settled that a physician only owes a duty to inform a patient for foreseeable risks, results and alternatives of a given procedure that a reasonable physician would have disclosed in the same or similar circumstances. Guebard v. Jabaay (1983), 117 Ill. App. 3d 1, 452 N.E.2d 751.

In the instant case, notwithstanding the fact that plaintiff claimed defendant never informed him that a graft of another tendon might have to be performed, and defendant testified that he had not foreseen use of the ring finger tendon for the graft and therefore would not have told plaintiff of that possibility, the following questions and answers were offered by plaintiff on the standard of disclosure to obtain informed consent:

“Q. Now, doctor, based upon a reasonable degree of medical and surgical certainty, did the defendant in failing to advise Mr. Ramos of the fact that he preferred to use the sublimis tendon or the ring finger tendon as a second choice to the palmaris longus tendon [wrist tendon], was it a deviation from the standard of care not to tell that to Mr. Ramos before surgery?
A. Yes, I think that in [the] form of consent telling the patient exactly what is to be done is very important, specifically spell it out and define it so that there was a breach of care.
Q. Now doctor, what are the reasons for telling a patient what is going to occur or what is probably going to occur during surgery before you begin the procedure?
A. I think the important thing is to inform the patient what is going to be done so that if there is a complication or problem at least you’re covered when you tell the patient specifically what you’re going to do. That’s the important part.”

Defendant contends that Dr. Miller’s testimony is merely an expression of how to avoid liability, rather than a standard of disclosure. While it is true that Dr. Miller’s statement includes a reason for informing a patient “exactly what is to be done” (to avoid liability), the statement also clearly expresses his expert opinion that a failure to inform a patient about the possible use of his ring finger tendon as a second choice to his wrist tendon would be a deviation from the standard of disclosure.

We are also unpersuaded by defendant that the unsuitability of the wrist tendon and use of another tendon was a “remote” risk. (See Miceikis v. Field (1976), 37 Ill. App. 3d 763, 347 N.E.2d 320.) As disclosed by the record, although the wrist tendon is suitable in 80% to 90% of cases, we find it difficult to believe that defendant would not take the additional step to consider the possibility of the unsuitability of the wrist tendon and use of the ring finger tendon and relate that information to plaintiff, assuming he had told plaintiff of the possibility of a graft of another tendon. After all, defendant testified that he would not know if the wrist tendon was suitable until he opened up plaintiff’s wrist. With that fact in mind, the possibility that it would be unsuitable, although rare, should also have reasonably occurred to defendant as a foreseeable risk, rather than a “remote” one.

We also reject defendant’s argument that plaintiff’s consent extended to the graft of his ring finger tendon based on the written consent form signed by plaintiff. Defendant relies on Pratt v. Davis (1906), 224 Ill. 300, 309, 79 N.E. 562, in which our supreme court stated:

“Where the patient desires or consents that an operation be performed and unexpected conditions develop or are discovered in the course of the operation, it is the duty of the surgeon, in dealing with these conditions, to act on his own discretion, making the highest use of his skill and ability to meet the exigencies which confront him, and in the nature of things he must frequently do this without consultation or conference with any one, except, perhaps, other members of his profession who are assisting him.” (Emphasis added.)

In the instant case, plaintiff signed a written consent form which provides, in pertinent part, as follows:

“1. I authorize the performance upon myself of the following operation Repair [sic] of tendon right thumb to be performed under the direction of Dr. Pyati.
2. I further consent to the performance of surgical operations, medical treatment and procedures in addition to, or different from, those now contemplated, whether or not arising from presently unforeseen conditions, which the above named Doctor or his associates or assistants may consider necessary or advisable in the course of the operation or other medical services.”

We first note that both Pratt and the consent form refer to unexpected conditions or unforeseen conditions, respectively. As we have already determined, the possibility that the wrist tendon might be unsuitable, requiring the use of another tendon, was not a “remote” risk and we do not believe that it thus can be characterized as an unexpected or unforeseen condition as contemplated by the language of Pratt or the consent form. Secondly, we reject defendant’s assertion that by signing the consent form, “plaintiff acknowledged that an explanation of the nature and purpose of the operation, alternatives and risks had been provided to him” and the “written consent authorized all actions taken during the operation.” Again, the consent form refers to unforeseen conditions, and use of another tendon, other than the wrist tendon, was not an unforeseen condition. Additionally, plaintiff, by signing the form, only consented to repair of his thumb and the surgical procedure explained to him by defendant, two operations/ incisions in the wrist. Thus, even if, arguendo, defendant had told plaintiff about the possibility of grafting his wrist tendon to repair his thumb, it cannot be said that plaintiff consented to the use of his ring finger tendon (requiring three additional incisions), especially in light of the fact that defendant conceded he had not anticipated using plaintiff’s ring finger tendon and therefore would not have told plaintiff of the possibility of its use were he to find plaintiff’s wrist tendon unsuitable. Finally, we note that at trial defendant also stated that one of the reasons he did not consider using the calf tendon (preferred over the ring finger tendon) after finding the wrist tendon unsuitable was because to do so “might” require a second consent! We agree with the trial court that if a second consent “might” be required to use the nonfunctional calf tendon, it makes no sense that a second consent would not be required to use the functional ring finger tendon.

Defendant’s last argument on this issue is even if the operation exceeded the scope of the consent given by plaintiff, plaintiff failed to prove his resulting condition was proximately caused by the absence of informed consent. It is well settled that “causation in informed consent cases is determined by an objective standard, what a prudent person in plaintiff’s position would have decided if adequately informed. *** If disclosure would not have changed the decision of a reasonable person in the position of the patient, there is no causal connection between nondisclosure and his post-operative condition; if, however, disclosure would have caused a reasonable person in the position of the patient to refuse the surgery or therapy, a causal connection is shown.” Guebard v. Jabaay (1983), 117 Ill. App. 3d 1, 10, 452 N.E.2d 751.

Here, defendant points out that plaintiff never testified that had the risks of using his ring finger tendon been disclosed, he would not have had the medical procedure. However, we observe that plaintiff’s expert did testify that the use of another tendon would have been preferred over the ring finger tendon because of that tendon’s lack of elasticity, which would result in less flexion of the thumb and impairment to the ring finger itself. Based on this testimony, we cannot say disclosure would not have changed the decision of a reasonable person to consent to the use of the ring finger tendon, i.e., we find it incomprehensible to believe that a prudent person would consent to further impairment of an already impaired hand for which he is seeking treatment.

In light of the foregoing, we hold that plaintiff established a prima facie case as to defendant’s negligence in performing the operation and, accordingly, the trial court properly denied defendant’s motion for a directed verdict at the close of plaintiff’s case.

Defendant next argues that the trial court erred in directing a verdict in favor of plaintiff based on its conclusion that there was no consent to the use of the ring finger tendon as a donor. Specifically, defendant contends that the issue of informed consent was a question of fact for the jury and the trial court preempted its role and, alternatively, if, as the trial court found there was a total lack of consent, then plaintiff was barred from any recovery since his sole cause of action would have been for battery, which he did not plead.

While defendant is correct that generally when a question involves a claim based on the lack of informed consent it is a factual determination to be made by the jury (see Ziegert v. South Chicago Community Hospital (1981), 99 Ill. App. 3d 83, 425 N.E.2d 450), as well as where a written consent form has been signed and it is effective consent to treatment (see Hansbrough v. Kosyak (1986), 141 Ill. App. 3d 538, 490 N.E.2d 181), we find under the circumstances here, as did the trial court, that clearly there was no consent given to use of the ring finger tendon, as discussed above, and therefore there was no factual determination for the jury to make. Specifically, defendant admitted he would not have told plaintiff about the possibility of using his ring finger tendon as a donor tendon if he found the wrist tendon unsuitable because he did not anticipate the unsuitability of the wrist tendon. Therefore, plaintiff clearly could not have given defendant his consent to use of his ring finger tendon.

We also find that the court’s ruling that there was a total lack of consent does not affect the negligence theory of plaintiff’s action to transform it into an action based on battery, which plaintiff did not plead and which would bar him from recovery. While it is true that if a party has not consented to a medical procedure, then a subsequent action is for medical battery (see Guebard v. Jabaay (1983), 117 Ill. App. 3d 1, 452 N.E.2d 751), plaintiff’s action, based on lack of informed consent, is viable to the extent that defendant failed to inform him that in repairing his thumb he would use the ring finger tendon if the wrist tendon was unsuitable. In other words, the lack of informed consent pertains to the operation on plaintiff’s thumb and the subsequent use of the graft in repairing it, not solely to the use of plaintiff’s ring finger tendon as a donor tendon, and defendant’s deviation from the standard of care applicable to surgeons. The fact that plaintiff could have filed an action premised on a theory of battery, because of the total lack of consent to use his ring finger tendon, is merely an alternative theory plaintiff could have pursued — not his •only theory. Accordingly, we find that the trial court properly entered a directed verdict in plaintiff’s favor.

Defendant’s final argument is that the trial court abused its discretion in limiting his expert’s testimony, i.e., he was barred from testifying to the extent or cause of the injury, or anything other than his opinion that defendant’s conduct was within the standard of good medical practice. The record discloses that plaintiff submitted Rule 220 interrogatories (see 107 Ill. 2d R. 220) to defendant on January 21, 1986, discovery was cut off on October 30, 1986, and defendant never answered the interrogatories. On January 5, 1987, during a pretrial conference, defense counsel asked leave to file an answer to plaintiff’s Rule 220 interrogatories. The court denied his request and, as a sanction for the failure to timely answer, defendant’s expert, Dr. Bell, was limited to testifying to the single opinion expressed in an earlier deposition taken by plaintiff’s counsel.

At trial, Dr. Bell attempted to expand upon his single opinion contained in his deposition and the court admonished defense counsel that Dr. Bell was limited to testifying to that opinion. Subsequently, on an examination outside the jury’s presence, as an offer of proof, Dr. Bell gave the following opinions: that if the surgeon determined a wrist tendon was too weak, it would be appropriate to use the ring finger tendon as a donor; because the surgeon can view the ring finger tendon during exploration of the thumb tendon, it is appropriate for him to evaluate the ring finger tendon and use it as a donor for a graft; where the wrist tendon is found to be unsuitable as a donor tendon, the calf tendon is also usually unsuitable and, as a result, a surgeon will not attempt to explore the possibility of using the calf tendon but will, instead, use another tendon; that if defendant had advised plaintiff that he needed surgical repair of his thumb tendon and that his delay in seeking treatment might have resulted in the formation of scar tissue, which would require the use of a donor tendon from another part of the body other than the wrist as expected, this would conform with the standard of care as to informed consent; in his opinion a reasonable person in plaintiff’s position, after being apprised of the risks, benefits and possible complications, would have consented to the procedure; that plaintiff’s condition has improved as a result of the surgery because he has additional flexion in his thumb; and that plaintiff, by exercise, can develop increased flexion of his thumb. Dr. Bell also testified that although he had performed approximately 500 similar operations, he has never used the ring finger tendon as a donor tendon.

Supreme Court Rule 220 (107 Ill. 2d R. 220) requires that an expert, to be called to testify at trial, answer in writing interrogatories which state the subject matter on which the expert is to testify, his conclusions and opinions and the bases therefor, and his qualifications. .Pursuant to the rule, he must also reasonably supplement his answer to interrogatories as additional information becomes known to him. In the instant case, it is undisputed that defendant did not timely answer the Rule 220 interrogatories. Defendant also attempted to “supplement” the opinion testimony expressed in his deposition through a letter to plaintiff one month prior to trial. In the old Blackstonian concept of confession and avoidance, the defense now seeks to avoid their failure to answer plaintiff’s interrogatories by contending that plaintiff never took action to compel them to answer. The defense also explained to the court that there had been substantial compliance with discovery because the expert had been disclosed, his deposition taken, and his opinion “supplemented.” Defendant also relies on Acosta v. Chicago Transit Authority (1976), 39 Ill. App. 3d 80, 349 N.E.2d 613, in support of his contention that the trial court abused its discretion in limiting his expert’s testimony.

We first observe that Acosta is inapplicable. There, this court upheld the exercise of the trial court’s discretion in permitting a bus driver to testify whose name had not been given in response to two interrogatories seeking the names of persons having knowledge of relevant facts concerning the plaintiff’s accident; Rule 220, pertaining to expert witnesses, was not at issue.

We further observe that a trial court has broad discretion in imposing sanctions for discovery violations and the exercise of that discretion will not be disturbed absent a clear abuse. (Brzezinski v. Gajda (1972), 5 Ill. App. 3d 977, 284 N.E.2d 383.) The committee comments to subsection (c) of Rule 220 state that it:

“[Ijmposes on the party retaining an expert the obligation of responding to interrogatories ***. *** Courts should not view favorably the late disclosure of ‘new’ opinions following the mandatory cutoff deadlines provided in paragraph (b).” (107 Ill. 2d R. 220(c), Committee Comments, at 355-56.)

In the instant case, we note that defendant’s contention that plaintiff was not diligent in seeking his compliance to answer the Rule 220 interrogatories is without merit; Rule 220 requires voluntary complianee. Rule 220 also provides for disqualification of a party’s expert for failure to comply with discovery. Here, the trial court, in its discretion, allowed defendant’s expert to testify in accordance with his opinion expressed in his deposition. Under the circumstances, we believe that the trial court’s ruling was well within the range of its .broad discretion.

Lastly, we observe that defendant, in any event, is estopped from claiming that the trial court abused its discretion in limiting his expert’s testimony based on the following pretrial discussion at the time the court reviewed its file:

“THE COURT: Item 4 is the Defendant’s Answers to the Plaintiff’s Rule 220 Interrogatories filed January 21,1986.
[DEFENSE COUNSEL]: Judge, essentially the deposition of our expert reflects that the opinions, except for one particular opinion where I advised counsel he did not ask the question, our expert was making his assumption that Dr. Pyati’s reference to—
THE COURT: Wait a minute. Wait a minute. A year ago, you got 220 Interrogatories. Where is the answer?
That was due in 28 days at that time. It was due in February of 1986. This is January of 1987.
* * *
Written reports, notes, his conclusions and opinions and his subject matter, his documents, where is it?
[DEFENSE COUNSEL]: For the purpose of the 220 Interrogatories, we produced our expert. Dr. John Bell.
THE COURT: I just want to know why the interrogatories were not answered, as the rule calls for, or if you have the answers and they didn’t get into the court rule, fine, show me the stamped copy.
But this idea that somehow we can, at the time of trial, when we are about to pick a jury, answer the 220 Interrogatories or do it in some other fashion, I don’t buy that. I don’t buy it.
Why weren’t these answered, or if they have been answered, please tell me.
* * *
[DEFENSE COUNSEL]: In correspondence, I believe I identified our expert, Dr. John Bell.
THE COURT: They were to be answered under oath. That’s the rule. I didn’t make it. The Supreme Court did it.
Why wasn’t this complied with, or was it?
[DEFENSE COUNSEL]: I do not believe it was complied with, your Honor, fully.
Judge, may we ask leave to file tomorrow morning Answers to Interrogatories that would be due.
There will be no surprises from what the doctor has testified to and what I told [plaintiff’s counsel] approximately one month ago.
* * *
If I may, after my own review of the file, I did call [plaintiff’s counsel] and advised him approximately a month or so ago when we were first before the court that we had a situation where questions were asked of our expert regarding his interpretation of what the ‘small’ meant, and this is in reference to a tendon, and he indicated that he interpreted it as meaning short.
We advised [plaintiff’s counsel] in that conversation that the interpretation given by the doctor in his deposition was that it was small in diameter and his opinions remain the same.
* * *
Then the interrogatories are not necessary. Counsel has been provided with all of the information.
THE COURT: The 220 says first and the only time in all of our laws and rules, if you have the information, you must forward it without being asked for it.
[DEFENSE COUNSEL]: Yes, your Honor, and I have done that.
THE COURT: All right.
[DEFENSE COUNSEL]: Does that obviate the need for answering the 220 Interrogatories?
THE COURT: Yes, if you have supplied everything called for there.
[DEFENSE COUNSEL]: Yes, I have supplied it.
THE COURT: Except when he sends it to you under oath, then it’s supposed to be filed under oath.
If you have everything that you need, let’s not have any unnecessary paperwork.
[PLAINTIFF’S COUNSEL]: I have no objection to them calling Dr. Bell. I think they’re entitled to.
THE COURT: You can bring him in. It’s not a problem.
We can skip the 220 answer. The plaintiff is not answering supplementals.” (Emphasis added.)

Notwithstanding the fact that the trial court clearly would not allow defense counsel to file defendant’s answer to the Rule 220 interrogatories submitted to him a year earlier, during the above colloquy defense counsel indicated to the court that defendant’s expert opinion would not be different from the one expressed in his deposition and that all information had been supplied to plaintiff. Where a party induces or invites a court to rely on incorrect information, that party cannot later be heard to complain of an error relative thereto. (In re Estate of Bania (1984), 130 Ill. App. 3d 36, 473 N.E.2d 489.) At the least, therefore, the trial court correctly stated an answer to the Rule 220 interrogatories was unnecessary since defendant had supplied plaintiff with “all information.” We further observe that the “supplemental” opinion of defendant’s expert, as expressed in a letter to plaintiff one month prior to trial, regarding the alleged fact that when defendant's expert defined the wrist tendon as small/short he meant “small in diameter,” was properly rejected not only because of its untimeliness but also because it attempted to change the expert’s opinion as expressed in his earlier deposition. We further observe that the expert’s opinions expressed in the offer of proof were in addition to the single opinion expressed in his deposition and, therefore, properly refused.

In light of the foregoing, we affirm the trial court in all respects.

Affirmed.

LORENZ and PINCHAM, JJ„ concur.

       Based on the fact that plaintiff’s counsel advised the court at a pretrial conference that plaintiff was not seeking recovery of loss of earnings, counsel for both parties agreed that the words “unusable for his regular job” be changed to “less usable” for “everything” (all activities involving the use of his hand).