text:
    SARAH KLUMPNER, a Minor, by Richard Kahn, her Guardian ad litem, Plaintiff-Appellee, v. GEORGE H. KLUMPNER, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—3745
    Opinion filed March 31, 1989.
    Rehearing denied May 17, 1989.

      William J. Harte, Ltd., of Chicago (William J. Harte and David J. Walker, of counsel), for appellant.
    Robert E. Burke, of McHenry, for appellee.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Defendant George H. Klumpner appeals from an order of the circuit court of Cook County denying his motions to vacate the registration of a foreign judgment and for a change of venue.

The foreign judgment at issue in this matter was entered by the Fourth Judicial District Court of Hennepin County, Minnesota, in 1984 after a number of proceedings instituted first in Rlinois and subsequently in Minnesota. Specifically, on August 13, 1980, Judith Klumpner filed a petition for dissolution of her marriage to George in the circuit court of the Nineteenth Judicial Circuit, Lake County, Illinois, and sought custody of their minor child, Sarah, born December 31, 1978. Shortly thereafter, she left the marital home, taking Sarah with her without court approval, and moved to Minnesota, where her brother, Richard Kahn, resided. On September 3, 1980, Judith filed an amended petition alleging that George was guilty of extreme and repeated mental cruelty. On September 11, 1980, the court granted George visitation with Sarah. Judith subsequently filed a petition to vacate the visitation order, alleging George had psychiatric problems, was an alcoholic, and was a danger to Sarah. On September 24, 1980, George sought a rule to show cause against Judith, alleging she had refused to comply with the court’s visitation order and had taken Sarah to a location unknown to him. George also subsequently filed a counterpetition for a dissolution of the parties’ marriage and sought custody of Sarah. On September 26, 1980, the court appointed an attorney for Sarah. That attorney later executed an affidavit wherein he stated that during approximately one year while he served as Sarah’s attorney, he had uncovered “no evidence of wrongdoing” by George relative to any allegations made by Judith. On October 17, 1980, George filed a second petition for rule to show cause against Judith because she continued to refuse to allow him visitation with Sarah and was keeping her at a location unknown to him. On the same date, the court ordered the parties and Sarah to undergo psychiatric evaluation by a court-appointed psychiatrist and that its visitation order be given full effect.

The court entered a judgment of dissolution on July 9, 1981. On August 24, 1981, pursuant to an amended judgment, custody of Sarah was awarded to Judith by agreement of the parties, and George was to have visitation with Sarah in accordance with a schedule attached to the judgment. By an order dated September 2, 1981, the court specifically fixed George’s visitation times through the summer of 1982 and expressly provided that visitation would be determined more liberally thereafter. On October 5, 1981, Judith filed an action in the Family District Court of Minnesota, entitled In re Custody of Sarah Nicole Klumpner, seeking to restrict George’s visitation rights with Sarah. The Minnesota court dismissed the case on February 2, 1982, based on its ruling that Illinois had continuing primary jurisdiction over the matter; prior tó the dismissal of Judith’s action in Minnesota, George had filed a petition for change of custody in Lake County on December 28, 1981. On April 4, 1982, Judith also filed a petition in Lake County for modification of the marriage dissolution judgment, seeking to terminate George’s visitation rights with Sarah based on her allegations that George had sexually abused Sarah during his visit with her in Minnesota on September 7, 1981, that he was an alcoholic, and that he had psychiatric problems.

The Lake County court conducted hearings on the parties’ petitions on June 10 and September 7, 1982. During the June 10 hearing, Dr. Stanley W. Shapiro, Judith’s psychiatric expert who practiced in the St. Louis-Minneapolis area, testified that based on two interviews with Judith and 35-month-old Sarah, George had sexually abused Sarah on September 7, 1981, in Minnesota. George’s expert testified to the contrary; this expert examined George and Judith, but not Sarah. At the September 7, 1982, hearing, Judith alleged that George had again abused Sarah on September 6, one day prior to that hearing. In describing the September 1982 incident, Judith referred to similar phrases allegedly used by Sarah and communicated to Dr. Shapiro concerning the September 1981 alleged molestation. No testimony was given by either of the parties’ medical experts at the September 7 hearing regarding this alleged second incident. Closing arguments were made on September 21, 1982. On October 1, 1982, the court denied both parties’ petitions; the court ruled that custody of Sarah should remain with Judith, found that there was no credible evidence that George ever physically or sexually abused Sarah, and found that Judith’s belief that George’s visits with Sarah were detrimental to her health was unsupported by any credible evidence and was irrational. The court further ordered that the parties and Sarah submit to extended psychiatric counseling, allowed George specific visitation with Sarah in Cook County, and continued the cause to February 11, 1983, for a status hearing concerning the progress of the counseling and as to visitation.

Judith and George both filed appeals from the September 21 order in Lake County. Judith subsequently filed two additional appeals from an order entered December 29, 1982, wherein the Lake County court found her in contempt for refusing to comply with its visitation orders and required her to obtain a $5,000 surety bond to insure her compliance thereafter, and an order dated January 13, 1983, denying, among other requested relief, her motion to vacate the December 29 order.

On December 19, 1983, the second district of this court, in an unpublished Rule 23 opinion (In re Marriage of Klumpner (1983), 119 Ill. App. 3d 1168), affirmed the trial court’s orders denying George’s and Judith’s petitions for change of custody and termination of George’s visitation rights, respectively, stating that where the evidence was conflicting, the trial court was in a far better position to determine the credibility of the witnesses. The court, however, reversed the trial court’s order finding Judith in contempt of court but affirmed the order as to the requirement of posting a bond to assure compliance with the court’s orders of George’s visitation with Sarah. A subsequent petition for leave to appeal to our supreme court filed by Judith was denied.

Apparently shortly after the denial of Judith’s petition for leave to appeal to the supreme court, Richard Kahn, Judith’s brother, filed an action as guardian ad litem of Sarah in the juvenile division of the Fourth Judicial District, Hennepin County, Minnesota, entitled In re the Matter of the Welfare of Sarah Klumpner, to have Sarah adjudicated a dependent and neglected child. The identical allegations of sexual abuse of Sarah by George on September 7, 1981, and September 6, 1982, were reasserted in this action. The court conducted hearings on February 13 through 17, 23, and 24, 1984. In rendering its decision that George had sexually abused Sarah, the Minnesota court conceded that its findings contravened those of the Illinois courts, but stated its decision was based on “significant differences” in the evidence presented, i.e., the court relied heavily on the testimony of Dr. Shapiro based on his interviews with Judith and Sarah subsequent to the Lake County proceedings and decisions. A disposition hearing was set for June 5, 1984. Prior to that time, George sent a letter to the court stating he would not appear at the hearing, asserting, among other reasons, that the Minnesota trial judge in the juvenile proceeding was not impartial (he had attended the same law school as Daniel Schermer, Judith’s former Illinois babysitter and “new” husband, who was openly seeking to adopt Sarah); the evidence presented in the proceeding was “stale, manufactured or paid for”; and the juvenile court’s decision was contrary to Illinois’ interpretation of the almost identical evidence. The court subsequently terminated George’s visitation rights until further order of the court.

At the time the Minnesota juvenile court proceeding was filed, a tort action was filed in the Minnesota district court on behalf of Sarah for money damages against George. Based on the juvenile court’s findings that George had sexually abused Sarah, the district court awarded damages to Sarah in the tort action against George in the amount of $325,000.

On April 9, 1986, Richard Kahn, on behalf of Sarah, filed a petition in the circuit court of Cook County to register the Minnesota judgment. On June 24, 1986, George filed a motion to set aside the registration, arguing that the judgment was invalid because it was based on the findings on the Minnesota juvenile court, which lacked primary subject matter jurisdiction, that that court failed to give full faith and credit to Illinois’ decision on the same issues, and the doctrine of res judicata precluded the Minnesota juvenile court from rehearing the case which had been “already heard in Illinois.” The Cook County court denied the motion without prejudice and with leave to amend.

George filed an amended motion, again asking the court to set aside the registration of the judgment and, in the alternative, requested an evidentiary hearing in order to “apprise the court of certain unusual facts surrounding the Minnesota judgment,” i.e., counsel for the court-appointed guardian ad litem attended the same law school that Dan Schermer and the trial judge attended (graduating in 1972, 1969, and 1971, respectively), that Dan Schermer's father represented Richard Kahn, the petitioner and alleged guardian ad litem of Sarah, and that these relationships were never disclosed to George or made a matter of record in the juvenile court proceedings.

On March 18, 1987, George filed another motion seeking a change of venue from Cook County to Lake County. Both motions-were denied, as was George’s subsequent motion for reconsideration of those denials, and this appeal followed.

George, in opposing registration of the Minnesota judgment, contends: (1) the judgment sought to be registered is void because it was based on the decision of the Minnesota juvenile court, which did not have subject matter jurisdiction or, in the alternative, because Illinois had primary jurisdiction; (2) the Minnesota judgment should not be enforced in Illinois because the minor child was collaterally estopped from prosecuting her tort action in Minnesota; (3) Illinois should not give full faith and credit to Minnesota’s judgment because Minnesota failed to give Illinois’ judgment full faith and credit and ignored the principle of res judicata; and (4) the trial court erred in denying George’s motion for a change of venue from Cook County to Lake County.

A foreign judgment is not conclusive if, among other reasons, the foreign court did not have jurisdiction over the subject matter. (Ill. Rev. Stat. 1985, ch. 110, par. 12 — 621(3).) The procedures by which a State court examines the question of the jurisdiction of the court of a sister State is a matter within the control of the States. (Adam v. Saenger (1938), 303 U.S. 59, 82 L. Ed. 2d 649, 58 S. Ct. 454.) We conclude that the Uniform Child Custody Jurisdiction Act (UCCJA), which has been adopted by both Illinois (Ill. Rev. Stat. 1987, ch. 40, par. 2101 et seq.) and Minnesota (Minn. Stat. Ann. §518A.01 et seq. (West Supp. 1989)) and applies to visitation rights as well as child custody (Noga v. Noga (1982), 111 Ill. App. 3d 328, 443 N.E.2d 1142), is dispositive of the jurisdictional issue in this appeal.

Under the UCCJA, “ ‘jurisdiction’ refers not to the due process limits of potential subject matter or personal jurisdiction [citation], but rather to the legislature’s discretionary limitation upon the exercise of existing jurisdiction.” (Noga, 111 Ill. App. 3d at 330.) Thus, a trial court, in order to exercise original jurisdiction (In re Marriage of Dagher (1986), 145 Ill. App. 3d 379, 495 N.E.2d 1004), as well as continuing jurisdiction over child custody and visitation determinations, must meet certain jurisdictional criteria, regardless of whether that court entered the original decree and specifically retained jurisdiction for enforcement thereof (Noga v. Noga (1982), 111 Ill. App. 3d 328, 443 N.E.2d 1142; see also Ill. Rev. Stat. 1987, ch. 40, par. 2104; Minn. Stat. Ann. §518A.03 (West Supp. 1989)). The same criteria also control with respect to questions of when a court of one State must recognize and enforce a foreign custody decree or when a court of one State may modify a custody decree rendered by a sister State. Even if a court meets that criteria, however, it may decline to exercise its jurisdiction, and we believe must in some cases, if it finds that it is an inconvenient forum for making such determinations, under the circumstances of the case, and that a court of another State is a more appropriate forum. (Noga v. Noga (1982), 111 Ill. App. 3d 328, 330-31, 443 N.E.2d 1142; Ill. Rev. Stat. 1983, ch. 40, par. 2108; Minn. Stat. Ann. §518A.07 (West Supp. 1989).) Illinois’ and Minnesota’s statutes are almost identical with respect to the factors to be considered in determining the inconvenience of a forum. Most pertinent to the instant action is the provision that “if the exercise of jurisdiction by a court of this State would contravene any of the purposes stated in Section 2 of this Act,” the court may decline jurisdiction. Ill. Rev. Stat. 1983, ch. 40, par. 2108(c)(5); see also Minn. Stat. Ann. §518A.03 (West Supp. 1989).

In Illinois, the general purposes of the UCCJA, among others, are to:

“1. avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with
harmful effects on their well-being;
* * *
4. discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child;
5. deter abductions and other unilateral removals of children undertaken to obtain custody awards;
6. avoid relitigation of custody decisions of other states in this State to the extent to which the avoidance of such relitigation is feasible ***.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 40, par. 2102.)

Minnesota’s provisions of section 518A.01, subdivisions 1(a), 1(b), and 1(c), correspond with Illinois’ provisions 1, 5, and 6 of section 2, respectively. Although the Minnesota statute does not contain a specific provision similar to our provision 4 of section 2, it is clear that the purpose of provision 4 is encompassed by the language contained in section 518A.01, subdivision 1(a), of the Minnesota statute, i.e., “the best interest of the child.” See Beier v. Beier (Minn. App. 1985), 371 N.W.2d 52 (the purpose of the UCCJA is to minimize hardships on children by reducing opportunities for interjurisdictional controversies over child custody).

Another pertinent provision in both the Illinois and Minnesota statutes provides:

“§13. Binding Force and Res Judicata Effect of Custody Judgment. A custody judgment rendered by a court of this State which had jurisdiction under Section 4 binds all parties who have been served in this State or notified in accordance with Section 6 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to these parties the custody judgment is conclusive as to all issues of law and fact decided and as to the custody determination mude unless and until that determination is modified pursuant to law, including the provisions of this Act.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 40, par. 2113.

See also Minn. Stat. Ann. §518A.12 (West Supp. 1989).

Based on the foregoing, we find in the instant case that the Illinois courts’ decisions were res judicata of the Minnesota juvenile court proceeding and, additionally, that the Minnesota court lacked jurisdiction to enter its judgment because the exercise of its jurisdiction was in contravention of the purposes for which the UCCJA was enacted.

We first observe that the full faith and credit clause of the United States Constitution (U.S. Const., art. IV, §1) requires an application of res judicata where the parties involved in a matter are the same, or those in privity with them, and the cause of action and the subject matter of both suits are the same (Hays v. Louisiana Dock Co. (1983), 117 Ill. App. 3d 512, 452 N.E.2d 1383). Here, the Minnesota juvenile court apparently believed that the Illinois decisions were not res judicata of the proceeding before it because it found there was a “significant difference” in the evidence presented to it subsequent to the Illinois decisions. Specifically, the Minnesota court relied heavily on Dr. Shapiro’s additional nine interviews with Sarah from September 13 to November 18, 1982, after George allegedly sexually abused Sarah a second time during a visit with her on September 6, 1982. We find, however, that the Minnesota court’s representation that Dr. Shapiro’s later testimony before it amounted to “significant differences in the evidence from that presented in the Illinois court” to be factually unsupported by its written findings of fact and memorandum attached in support thereof and the record of proceedings in Illinois. Like the Minnesota court’s findings of fact which mirror all of Judith’s allegations considered and rejected by the Illinois trial and appellate courts, Dr. Shapiro’s testimony before the Minnesota court concerning his later interviews with Sarah mirrors Judith’s allegations and the sexual descriptions of the alleged September 6, 1982, incident made during the September 7, 1982, hearing in the Lake County court. This “evidence” was therefore presented, considered, and rejected by the Lake County court and the second district of this court. We do not find any “significant difference” in this evidence merely because it was related by Judith at the September 7, 1982, hearing, rather than Dr. Shapiro, since the identical situation — Judith’s allegations and descriptions concerning the September 7, 1981, alleged incident of sexual abuse and Dr. Shapiro’s testimonial corroboration in similar terms — was also considered and rejected by the Illinois courts; apparently the second alleged incident carried no more weight than the first. In effect, therefore, the Minnesota juvenile court relitigated the facts presented to and disposed of by the Illinois courts, since the Minnesota cause of action and its subject matter, although brought in the juvenile court, constituted the same cause of action and subject matter litigated in Illinois. Moreover, Sarah, upon whose behalf the juvenile court proceeding was instituted, was in privity with Judith in the Illinois proceedings, i.e., Sarah’s interests were closely aligned with Judith’s, thereby making Judith her virtual representative. (See Johnson v. Nationwide Business Forms, Inc. (1981), 103 Ill. App. 3d 631, 431 N.E.2d 1096.) In light of the foregoing, therefore, the Illinois courts’ judgments were res judicata of the Minnesota juvenile court action.

We also find that the Minnesota juvenile court lacked jurisdiction because its exercise of jurisdiction contravened the purposes underlying the UCCJA. We first note that plaintiff’s reliance on Sullivan v. Sullivan (1981), 98 Ill. App. 3d 928, 424 N.E.2d 957 — for the proposition that where another State fails to give full faith and credit to a judgment of Illinois, Illinois nonetheless is obligated to give full faith and credit to the other State’s later judgment — is misplaced under the circumstances here. At issue in Sullivan was the payment of past-due support and maintenance obligations. The case before us is a custody matter. Certainly the custody of children and payment of monies require different considerations, as evidenced by the UCCJA, which specifically provides that a “custody determination,” which includes visitation rights, does not include a decision relating to child support or any other monetary obligation of any person. (Ill. Rev. Stat. 1983, ch. 40, par. 2103.02; see also Minn. Stat. Ann. §518A.02(b) (West Supp. 1989).) Accordingly, we must consider application of the full faith and credit clause in conjunction with the specific provisions of the UCCJA and its underlying policy considerations.

As stated previously, recognition of the full faith and credit clause requires application of res judicata where the parties involved are the same, or those in privity with them, and the cause of action and the subject matter of both suits are the same. (Hays v. Louisiana Dock Co. (1983), 117 Ill. App. 3d 512, 452 N.E.2d 1383.) The UCCJA also provides for application of res judicata (Ill. Rev. Stat. 1983, ch. 40, par. 2113; see also Minn. Stat. Ann. §518A.12 (West Supp. 1989)). To give full faith and credit to the Minnesota juvenile court’s judgment over Illinois’ would require us to completely ignore the res judicata doctrine, in contravention of the purposes of the UCCJA, three of which most importantly are to avoid continuing controversies over child custody in the interest of greater stability in the home environment and secure family relationships for the child, to avoid harmful effects on the well-being of the child, and to avoid relitigation of custody matters. (Ill. Rev. Stat. 1983, ch. 40, par. 2102; Minn. Stat. Ann. §518A.01 (West Supp. 1989).) In other words, were we to hold otherwise, an unsuccessful litigant in Illinois would be free to relitigate in other State forums, after establishing a six-month residence and complying with other jurisdictional requirements of the UCCJA in those States which have adopted it, until a favorable forum was found which would interpret the same evidence before it as “significantly different” from the evidence presented in the original forum. During the interim, a minor child would be subjected to continuous instability in the family relationship and suffer harmful effects to her well-being. This is not the same situation which would obtain and for which the UCCJA provides where new circumstances, never litigated, would arise.

Accordingly, notwithstanding the general rule that where inconsistent judgments exist, the full faith and credit clause requires the latest judgment to be controlling in a third action between the parties (Treinies v. Sunshine Mining Co. (1939), 308 U.S. 66, 84 L. Ed. 85, 60 S. Ct. 44), we believe that it is of paramount importance that where child custody and visitation rights are involved, the doctrine of res judicata must be strictly applied prior to a second forum assuming jurisdiction over such matters involving the same facts and same parties, in compliance with the purposes of the UCCJA, so that a third action between the same parties based on the same facts cannot arise.

Here, Minnesota’s exercise of jurisdiction in the juvenile proceeding contravened the policy considerations for which the UCCJA was enacted; it should have declined jurisdiction under section 8 of the UC-CJA (Ill. Rev. Stat. 1983, ch. 40, par. 2108(c)(5); Minn. Stat. Ann. §518A.07(3)(e) (West Supp. 1989)). Its judgment is therefore void. As a result, the Minnesota judgment rendered in the tort action on behalf of Sarah and registered in this State, which was based on the juvenile court’s findings of sexual abuse of Sarah by George, is also void. See Crist v. Quam (1984), 126 Ill. App. 3d 167, 466 N.E.2d 1223; Ill. Rev. Stat. 1987, ch. 110, par. 12-621(3).

We further find, in any event, that Sarah was collaterally estopped from prosecuting a tort action against George in Minnesota based upon her allegations of George’s sexual abuse of her. Collateral estoppel applies where the following requirements are met: (1) the issue decided in the prior adjudication is identical to that presented in the action in question; (2) a final judgment on the merits was rendered in the prior action; and (3) the party against whom estoppel is asserted is the same as or in privity with a party to the prior adjudication. (Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Ill. 2d 1, 398 N.E.2d 9.) As discussed above, these requirements have been met.

In light of the foregoing, we find it unnecessary to address any other issues raised in this appeal.

The judgment of the circuit court of Cook County granting registration of the Minnesota judgment is reversed.

Reversed.

LORENZ and PINCHAM, JJ., concur.

      It is unclear from the record when this action was filed and whether Richard Kahn was in fact ever legally the guardian ad litem of Sarah. However, in later Minnesota proceedings concerning this matter, the court did appoint a guardian ad litem other than Richard Kahn.

      Section 518A.22 of the UCCJA provides that “[i]f a custody decree has been rendered in another state concerning a child involved in a custody proceeding pending in a court of this state, the court of this state upon taking jurisdiction of the case shall request of the court of the other state a certified copy of the transcript of any court record and other pertinent documents which have been preserved by the court of the other state.” (Emphasis added.) (Minn. Stat. Ann. §518A.22 (West Supp. 1989); see also Ill. Rev. Stat. 1983, ch. 40, par. 2123.) Although there was no pending proceeding in Illinois at the time the juvenile court proceeding was filed, we believe that considering the seriousness of a custody/visitation rights matter, the Minnesota court would nonetheless request the record of proceedings in Illinois. It is unclear whether the Minnesota court did so and had the same record before it as this court.


source: Caselaw Access Project

author: JUSTICE EGAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE RIVERA, Defendant-Appellant.
    First District (2nd Division)
    No. 1—87—2951
    Opinion filed April 4, 1989.

      Mitchell D. Kreiter & Associates, of Chicago, for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Marie Quinlivan Czech, and Linda S. Halperin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

The defendant was found guilty by a jury of two counts of possession of a controlled substance with intent to deliver and sentenced to concurrent terms of nine years and six months on one count and seven years on the other. He contends that various errors in the admission of evidence require a new trial.

On April 8, 1986, at approximately 1 p.m., eight Chicago police officers executed a search warrant authorizing the search of the premises at 747 North Throop Street, rear house, Chicago, Illinois. The officers, under the direction of Sergeant James McGovern, arrived at a gangway near the alley running along the rear yard of the residence and set up surveillance. They were waiting for someone to be let into the residence because of the physical layout, which included a 10-foot wall running along the alley bordering the rear house. A short while later, Tony Nieves approached the door in the wall, and the defendant let him in. Nieves entered quickly, and the door slammed shut. Officer Robert Kocan shouted “Stop, police.” He and Officer Higgins attempted to jar the door open with their shoulders. When this attempt, as well as a subsequent blow with a sledge hammer, proved ineffective, Higgins was boosted to the top of the wall, where he found a two-by-four with nails protruding. Higgins testified that while he was on the wall, the defendant came out of the rear building, threw an ashtray at him and went back into the building.

Once Higgins was over the wall, he let the other officers in through the door in the wall. The officers proceeded to the only door to the single-level brick building located in the rear of the yard. When their orders to open the door were met with no response, the officers knocked the door open with the sledge hammer.

Kocan, first through the door with Higgins, saw the defendant, his younger brother and Tony Nieves in the kitchen. The defendant was standing near the sink, and a triple-beam scale was on the top of the kitchen table.

Sergeant McGovern searched the defendant and recovered three pieces of identification: a voter’s registration card in the defendant’s name listing his residence as 747 North Throop; a traffic ticket with the same address; and a bond slip dated February 5, 1986, for a battery offense which also listed the defendant’s address to be 747 North Throop.

Kocan recovered a camera case from the top of a portable television on the dresser in the rear bedroom. The case contained 11 clear plastic bags of suspected narcotics and $1,135.

Officer Schulz recovered a large, clear plastic bag of suspected cocaine from the bottom shelf of the medicine cabinet in the bathroom. Also discovered were three loaded pistols, a grinder used to cut cocaine and plastic bags used to package narcotics. The defendant, his brother and Tony Nieves remained in the kitchen during the search. Kocan testified that the defendant’s two-year-old son was also present.

It was stipulated that a forensic chemist performed tests on the substances recovered during the search and that the tests revealed 516 grams of cocaine and 7.04 grams of phencyclidine, a controlled substance, more commonly referred to as PCP.

Before trial, the defendant filed a motion in limine as to rent receipts and the search warrant. Over objection, the judge ruled that the State would be allowed to introduce evidence that the police had a search warrant legally authorizing them to search the premises of the rear house and the defendant, but he granted the request that the defendant not be referred to as “Lefty” in the presence of the jury. The State did not offer the rent receipts at the trial.

The defendant also argued against the admission of two bond slips: one for the underlying offense for which he was to be tried and one for the unrelated battery that was recovered from the defendant during the search. The trial court ruled that the bond slip for the battery offense listing the defendant’s address as 747 North Throop and dated February 5, 1986, could be introduced. The defendant and State stipulated that he gave the address 747 North Throop on the bond slip for the underlying offense so that the jury would not see that he posted $4,500 for bail.

The defendant first contends that the judge committed reversible error when he permitted the bond slip for the unrelated battery to be admitted into evidence in light of the other evidence available listing his address as 747 North Throop.

The State responds that the judge properly allowed the bond slip to be introduced to show a material fact — that the defendant had previously admitted that 747 North Throop was his residence address— and that any prejudicial effect that might have been caused by the bond slip’s introduction was prevented when the judge ordered that the word “battery” on the bond slip be changed to “misdemeanor.”

Whether to permit evidence from which a jury could infer that a defendant had been guilty of other criminal conduct is within the discretion of the court, assuming that the evidence tends to establish any fact material to the prosecution, e.g., identity, motive, general scheme or plan. One of the principal material facts in this case was the residence of the defendant. In that regard, the bond slip was probative to “identify” the defendant as a resident of 747 North Throop. But so also were the traffic ticket and the voter registration card, which established precisely the same thing: that he held himself out to be a resident of 747 North Throop. The bond slip for the underlying offense was also offered for that purpose. In addition, the State had ready, and did use, other evidence which we will discuss later: testimony of Officer Kocan that the defendant told him his address was 747 North Throop and records of Illinois Bell Telephone Company (Illinois Bell) establishing the same thing, but in more detail.

The trial judge recognized that the evidence might be cumulative, and he also recognized that it could be prejudicial:

“Otherwise, especially since it’s only a misdemeanor battery charge, it’s not a drug case, it’s not a felony, like attempt murder or kidnapping or rape or something. I really don’t think it is that prejudicial even if it is as you suggest, Mr. Kreiter [defense counsel], cumulative.”

In our judgment the introduction of the bond slip was an abuse of discretion, but we do not believe that it constituted reversible error. Two officers testified that a “bond slip” was recovered from the defendant. The exhibit was identified only as a bond slip. The record does not reflect what exhibits did go to the jury. The judge would not permit the arrest reports to go to the jury. When he asked the defendant’s attorney if there was any objection to any exhibits going to the jury, the attorney made no response. We infer, therefore, that the bond slip did not go to the jury. Consequently, the jury knew only that a bond slip had been recovered. They did not know that it was for an arrest for a battery or a misdemeanor. And if they did, any prejudice would be minimal in view of the evidence of guilt.

The defendant next contends that his motion for mistrial was improperly denied after Officer Garcia referred to him by his nickname “Lefty” in violation of the trial court’s prior ruling on his motion in limine. During cross-examination of Garcia, the following occurred:

GARCIA: My sergeant, four people.
Q. What other people?
A. Lefty was in in [sic].
STATE’S ATTORNEY: Objection. We ask leave to approach the bench.”

Outside the presence of the jury, the judge instructed the defendant’s attorney to rephrase his question to ask specifically who was in the kitchen and if they were in court. The defense attorney decided against further inquiry into the matter after resuming his cross-examination. Two other officers testified after Garcia, and it was not until after the completion of the testimony of the last officer that the defendant made a motion for a mistrial.

It is the general rule that objections must be timely; otherwise, any error is waived. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) There seems no reason why the same rule should not apply to motions for a mistrial. The court could have corrected any error by instructing the jury to disregard the answer. No request for such an instruction was made. Any possible error, therefore, was waived. People v. Winfield (1983), 113 Ill. App. 3d 818, 447 N.E.2d 1029.

But waiver aside, we do not believe the remark by Garcia may be elevated to the status of reversible error. The trial court had previously ruled that he would permit proof that the police had a search warrant for the premises and the defendant but he would not permit the contents of the search warrant to be read to the jury. The search warrant named “Lefty,” but the jury was not aware of that. Garcia testified that four others were in the kitchen. Insofar as the jury was concerned, “Lefty” was not necessarily the defendant. Even if the jury did conclude that “Lefty” was the defendant, the inadvertent deviation from the in limine order was harmless.

The defendant also argues that the trial judge committed reversible error when he permitted testimony that the police had a search warrant authorizing the search of the premises at 747 North Throop, rear house, Chicago, Illinois, as well as the defendant’s person. He argued that the search warrant was a hearsay document. We disagree. The trial judge clearly stated that he was allowing the police officers to testify, not to the contents of the search warrant, but merely to show the officers’ legal authorization to conduct such a search. The judge wanted to prevent the. inference that the tactical team acted in “gestapo” or illegal fashion. The evidence was properly admitted for the limited purpose of explaining the conduct of the police officers. People v. Hunter (1984), 124 Ill. App. 3d 516, 464 N.E.2d 659; People v. Jones (1983), 114 Ill. App. 3d 576, 449 N.E.2d 547.

The defendant’s next contention is that the court erred in the introduction of Illinois Bell telephone records. An understanding of the significance of those records requires a more detailed recitation of the evidence. There are two buildings located at 747 North Throop. The front building is two stories; the rear building is one. The search warrant was issued for the rear building; the defendant was arrested and the narcotics were recovered in the rear building.

The only witness for the defense was the defendant, who testified as follows: His true residence was 747 North Throop, second floor, front building, where he had resided with his parents for approximately the last 9 to 10 years. The wall between the two residences existed at the time the defendant moved in. Henry Santiago lived in the rear house and had been there since 1983.

On April 8, 1986, he overslept and missed his court call at traffic court. He decided to go to Santiago’s residence to use his phone to arrange a new court date, because he did not have a phone in his home. At approximately 11 a.m. he took his son and little brother with him to Santiago’s residence at the rear. After making the phone call, he watched video tapes with Santiago and an unknown female for about a half hour.

Santiago and his female guest departed; however, Santiago allowed the defendant and his family members to stay and watch video tapes. A short while later, Tony Nieves arrived at the back gate, and the defendant let him in to wait for Santiago. He did not order a telephone in his name in the rear house, and none of the police officers ever asked him where he lived. He had seen Santiago several times since his arrest.

It should be kept in mind that the exhibits recovered from the defendant, the bond slips, voter registration card and the traffic ticket, show his address to be only 747 North Throop; they are not inconsistent with his testimony. Further, although Officer Kocan testified that the defendant told him he lived in the rear building, the defendant denied that anyone asked him where he lived. Therefore, any independent evidence from which the jury could infer that the defendant exercised dominion and control over the rear premises and which contradicted his testimony would greatly enhance the State’s case. The telephone records were such evidence.

Merny Miller testified that she was the keeper of the records for Illinois Bell and had been so employed for 11 years. She had testified in court many times, 24 times in the last year. She was familiar with the manner in which records were kept regarding billing information. The bill face record was one of the exhibits and showed when the service was established, where the bill was sent, the date of the initial installation, the “treatment history” for the last 12 months, whether the telephone had been disconnected for nonpayment and whether any bad checks had been received in payment.

She said that the records showing customer usage and service are stored in computers that are “standard and reliable.” IBM is the standard computer that Illinois Bell uses and had been using for billing information purposes for all the years that she had worked there. The exhibits were “generated off the computer.” Based upon her experience as keeper of the records, she testified that the input documentation was put in the computer at the time the information was received.

When she was describing changes, for example, a change of a telephone number, she was asked, “Once those items are changed is the information then put in the computer that you have described earlier that Illinois Bell uses?” She answered that it was. All of the records were kept in the ordinary course of business.

The records established that service began on October 1, 1984, under telephone number 421-1007, that it was changed to 666-8984 ten days after the defendant’s arrest, and that service was disconnected on June 5, 1987. All records establish that the subscriber was Jose Rivera at 747 North Throop, rear.

The defendant’s objection to this evidence is based on two grounds: he alleges that the evidence was prepared in anticipation of litigation and thus was inadmissible under section 115 — 5(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 5(c)); and he argues that no proper foundation was established.

Section 115 — 5(c) of the Criminal Code (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 5(c)) provides in relevant part:

“(c) No writing or record made in the regular course of any business shall become admissible as evidence by application of this Section if:
* * *
(2) Such writing or record has been made by anyone during an investigation of an alleged offense or during any investigation relating to pending or anticipated litigation of any kind.”

The defendant points out that the records were obtained from Illinois Bell in compliance with a subpoena issued in January 1987, over eight months after the date of the execution of the search warrant and his arrest. He contends that the records clearly were prepared solely for use at his trial and that it was error to admit them into evidence.

Miller testified that the input documentation was put in the computer at the time the information was received. Hence, the records, or more precisely, the information composing the records, were always stored in the computers at or near the time they were made and not created or prepared in January 1987. The exhibits that were received in evidence were retrieved from, or generated by, the computers and, as such, are similar to facsimiles of records. In People v. Mormon (1981), 97 Ill. App. 3d 556, 422 N.E.2d 1065, the court held that, for the purposes of section 115 — 5(c) of the Criminal Code that is in issue here, the record is what is stored in the computer and the information retrieved from the computer meets the requirements of the statute for admissibility. We hold that the Illinois Bell records also meet those requirements.

The next question involves the sufficiency of the foundation proof. An early case on the question of admissibility of electronic evidence is People v. Wells (1967), 80 Ill. App. 2d 187, 224 N.E.2d 288, which involved equipment used to trace telephone calls. The witness testified that he had worked on the equipment and that he went with the technician who checked through each stage of the tracing operation which checked back to the defendant’s telephone. The witness verified the record showing the location of the number to which the-technician traced the call. He admitted that it was the technician who determined the number and that he took the technician’s word that it was that particular number. The appellate court recognized that the witness’ testimony technically was hearsay but that it was a type of hearsay that fell within one of the exceptions to the hearsay rule. The court made this observation (People v. Wells, 80 Ill. App. 2d at 194):

“The basis for the admissibility of the records is that the circumstantial probability of their trustworthiness is a practical substitute for cross-examination of the individual making the entries.” (Emphasis added.)

People v. Wells was cited in one of the first cases dealing with computer records, People v. Gaiter (1972), 7 Ill. App. 3d 512, 288 N.E.2d 24, which also cited King v. State ex rel. Murdock Acceptance Corp. (Miss. 1969), 222 So. 2d 393. In King the supreme court of Mississippi set down the standards of admissibility of computer records: It must be shown that the electronic computing equipment is recognized as standard, that the entries are made in the ordinary course of business at or reasonably near the time of the happening of the event recorded and the testimony satisfies the court that the sources of information, method and time of preparation were such as to indicate its trustworthiness and justify its admission. King and Gauer, in turn, were both cited with approval in Department of Mental Health v. Beil (1976), 44 Ill. App. 3d 402, 357 N.E.2d 875. The Illinois Supreme Court addressed the question in Grand Liquor Co. v. Department of Revenue (1977), 67 Ill. 2d 195, 367 N.E.2d 1238, and accepted the King standard.

A number of appellate courts have passed on the question since Grand Liquor, and, with one possible exception, have adhered to the requirements set out in King. That possible exception, People v. Bovio (1983), 118 Ill. App. 3d 836, 455 N.E.2d 829, cited by the defendant in the trial court and in this court, reversed a conviction, saying that the testimony failed to establish that the computer program was “standard, unmodified, and operated according to its instructions.” (People v. Bovio, 118 Ill. App. 3d at 842.) We note that the court cited no precedential authority for its seeming expansion of the standards accepted by the supreme court in Grand Liquor and by all other Illinois appellate courts. The opinion does refer to North, Computer Evidence in Rlinois, 71 Ill. B.J. 590, 593 (1983), in which the author used the phrase, “unmodified program operated according to its instructions” as part of what he described as the admissibility test in “computer/legal jargon.”

The Bovio court also emphasized that a computer system which performs calculations, and which was involved there, must be scrutinized more closely than a system which retrieves information, which is involved here. Moreover, the Bovio opinion does not disclose what type of computer system was used. In this case, not only did the trial court have the testimony of Miller that the computer was “standard and reliable,” but the judge correctly held that he could take judicial notice that IBM is a “standard, reliable computer.” (People v. Hendricks (1986), 145 Ill. App. 3d 71, 495 N.E.2d 85.) (We note that the court in People v. Hendricks cited Bovio as authority for the rule of Grand Liquor.) We cannot be certain that the Bovio court meant to say that proof that the computer program was “unmodified and operated according to its instructions” was necessary in addition to proof that it was “standard.” If it did, we respectfully disagree and, as we must, adhere to the admissibility test stated by the supreme court in Grand Liquor.

Since Miller also testified that the procedures followed were in the regular course of business, it is apparent that the first two tests imposed by Grand Liquor have been met. The next question is whether the third has been, that is, was the trial court justified in concluding that the sources of information, method and time of preparation were such as to indicate the entries’ trustworthiness? This test deals with the material that is put into the computer.

At the outset, we must express recognition that the proof of the information that went into the computer and the source of that information could have been better, but fairness requires recognition also that the defendant’s objection was far from specific. Before Miller testified, the defendant’s attorney made an oral motion in limine in which he said that the records were prepared in preparation for trial and that he did not think the State would be able to establish a proper foundation, citing People v. Bovio. The assistant State’s Attorney said he would be able to lay a proper foundation. After colloquy between the State, defense and the judge, the judge said he would rely on the State’s offer. The thrust of the defense argument on the question of foundation was that the State would not be able to establish that the information which went into the computer was put in contemporaneously “with the event.” Miller’s testimony that the entries were made contemporaneously with the event refuted that argument. The defendant’s attorney did not ask her any questions. After she completed her testimony, the judge asked if there were any objections to any of the exhibits, which included all of the things recovered from the premises, pictures of the premises and the Illinois Bell records. The defendant’s attorney said he objected only to the phone company records, without any further specification. The judge then expressed his reasons for upholding admissibility and invited any further comment from the defendant’s attorney, who said, “Just note our objection for the record.” We do not believe that the precise argument made in this court — that the trustworthiness of what was put into the computer was not established — was ever made to the trial judge. If the argument had been made, the State would have had an opportunity to correct any deficiency in the foundation proof. (See People v. White (1970), 131 Ill. App. 2d 652, 264 N.E.2d 228.) But since the State makes no issue of the specificity of the objection, neither will we.

Our task, however, is not to determine whether the foundation could have been better; it is to determine whether the trial judge abused his discretion. We conclude that he did not. To begin, we refer back to the observation of People v. Wells that the “circumstantial probability” of the trustworthiness of the evidence is the basis of the record’s admissibility. The judge could properly consider that the information retrieved from the computer was consistent with the other “circumstances” disclosed by the evidence. (See People v. Mormon, 97 Ill. App. 3d at 566.) First, strong support for the reliability of the record lies in the fact that the very person named as the subscriber of the telephone was, in fact, at the listed premises when the police arrived. Second, the record showed the telephone number to be 421-1007, and a police officer testified that the defendant called that number after he was arrested. (The defendant later admitted that that was the number.) Third, the records establish that bills were sent to Jose Rivera at the rear building and that the bills were paid. Fourth, the records show that the phone had been disconnected, and the defendant testified that he had moved near the time of disconnection. Last, and most important, the judge knew that Illinois Bell, a large corporation, disinterested in the outcome of the case, relied on the records in the day-to-day operation of its business. Such reliance has been recognized as an important factor in determining the trustworthiness of such records. People v. Mormon, 97 Ill. App. 3d at 564-65; United States v. Vela (5th Cir. 1982), 673 F.2d 86.

If the defendant had any doubt of the authenticity or accuracy of the information he could have requested an examination of the “original reproduction,” but he did not do so. (People v. Mormon, 97 Ill. App. 3d at 565.) His attorney asked no questions of the record keeper, nor did he ask the defendant any questions specifically addressed to the records. In closing argument, the defendant’s attorney made no attempt to discredit the records. Instead, he made one remark which can only be construed to mean that he was conceding that the records were accurate, but he was suggesting that someone else used the defendant’s name in establishing the service. (See United States v. Vela (5th Cir. 1982), 673 F.2d 86, 90.) We judge, therefore, that the trial judge did not abuse his discretion in admitting the records.

The defendant’s last contention is that his sentence represents an abuse of discretion. At the time of sentencing the court said, “This is one of the largest amounts in this court that I have come across, over 500 grams of cocaine.” The defendant argues that, because the amount of cocaine determines whether or not a crime will be classified as a Class X felony, thus allowing a mandatory jail sentence of 6 to 30 years, the court may not consider the amount of cocaine in sentencing. He cites People v. Powell (1987), 159 Ill. App. 3d 1005, 512 N.E.2d 1364, for the proposition that a material element of an offense cannot be relied upon as a factor in aggravation. In Powell, the defendant was convicted of attempted murder and sentenced to the maximum term of 30 years. In sentencing, the court relied in aggravation primarily on the finding that the defendant intended to kill the people that he had shot. The appellate court did not reduce the sentence, but remanded for new sentencing, saying that since intent to kill was a material element of the offense, it might not be relied upon as a factor in aggravation. We do not believe that People v. Powell is in point.

To follow the defendant’s argument to its logical conclusion, two defendants, equal in all respects except that one sold 31 grams of cocaine and the other 1,000 grams, could not receive disparate sentences. Or if the same two defendants were convicted of theft of property valued in excess of $300, one who stole $1 million could not be punished more severely than one who stole $301. Such a conclusion is manifestly unacceptable. Moreover, the record shows that the amount of the cocaine was not the only factor in the judge’s consideration. When he revoked the defendant’s bond after the jury verdict, he noted that it was a “serious drug operation of some magnitude” which presented a danger to the community. At the sentencing hearing, after commenting on the amount of cocaine involved, the court also added that the evidence indicated “a rather major and organized drug-pedestrian-link operation.” The evidence supports those observations of the judge. We find no abuse of discretion in the sentence.

The State concedes that the sentence of seven years is improper, because possession with intent to deliver less than 30 grams of PCP is a Class 3 felony with a sentence range of two to five years. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(6).) Therefore, the defendant’s sentence of seven years does not conform to the statute. We reduce the sentence under count II to a term of four years.

For these reasons we affirm the judgment of conviction on both counts and modify the sentence on count II.

Judgment affirmed and modified.

BILANDIC, P.J., and HARTMAN, J., concur.

       Justice Egan participated in this opinion prior to his assignment to the sixth division.


author:
JUSTICE EGAN
     JUSTICE HARTMAN,

text:
    PHYLLIS RAVIN, Plaintiff-Appellant, v. A.H. ROBINS COMPANY, INC., et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—88—0257
    Opinion filed April 4, 1989.
    Supplemental opinion filed on denial of rehearing May 16, 1989.

      HARTMAN, J., dissenting.
    Erwin, Cohn & Associates, of Chicago (Charles A. Cohn, of counsel), for appellant.
    Arlene C. Erlebacher and Barbara M. DeCoster, both of Sidley & Austin, of Chicago, for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Phyllis Ravin, filed a complaint against Searle Pharmaceuticals, Inc. (Searle), for personal injuries she allegedly incurred by use of an intrauterine device known as a CU-7, manufactured by Searle. In substance, the complaint alleged that the device was defectively designed. The court allowed the defendant’s motion for summary judgment on the ground that the complaint had been filed after the expiration of the statute of limitations. (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 202.) The plaintiff contends that the court erred because a fact question exists that can be resolved only by a trial.

The factual basis for the defendant’s motion for summary judgment and for the court’s ruling was the deposition of the plaintiff; and the following recitation of the facts is derived from that deposition.

She started using an intrauterine device (IUD), the Lippes Loop, in January of 1972. She had opted for using an IUD at that time because she had experienced either problems or poor results from other forms of contraception. She had two pregnancies aborted, the second one occurring when she was using a diaphragm and foam as a means of prevention. In July of 1972, her gynecologist, Dr. Klein, removed the Lippes Loop. Although she could not recall what prompted its removal, subsequent notations of Dr. Klein indicated that she was suffering from “acute pain from intrauterine device.” She was successfully treated with antibiotics. The Lippes Loop was replaced with a Daikon Shield, which was subsequently replaced by the defendant’s CU-7 on about April 20, 1976. She had suffered vaginitis while using the Daikon Shield. She had periodic check-ups with Dr. Klein while she was using the IUDs.

In early November 1977, she began to experience pain and other symptoms such as constipation and “bloatedness.” When the symptoms continued, she went to the emergency room at Lutheran General Hospital. Test results proved negative. However, the staff at the hospital told the plaintiff they wanted her to see one of their gynecologists. She declined, stating that she would see her own gynecologist. After examining her, Dr. Klein immediately removed the IUD and scheduled her for surgery, because he could feel a giant mass. She said it was solely Dr. Klein’s decision to remove the IUD. He explained that an IUD should not remain in the body when something else can be felt within the uterus.

Surgery was performed, and the mass was removed along with one fallopian tube and part of each ovary. It was her understanding that those organs were removed because they were infected, although she concluded that Dr. Klein did not tell her what caused the infection. She reached that conclusion because if Dr. Klein had told her the CU-7 might have been responsible for the infection, she never would have allowed him to place a second one in her body.

In December 1977 Dr. Klein inserted a second CU-7. She began to suffer from cramping sometime before March of 1978, and she believed the second IUD was removed during that month. The pain she experienced was less severe than that in 1977. Dr. Klein told her that her body was rejecting the IUD. Thereafter she requested a tubal ligation because she needed some form of birth control, she had either suffered problems with all of the forms used in the past, or worse, they had proved ineffective. She and Dr. Klein discussed the serious consequences of the tubal ligation before it was performed in April 1978. She had never had any problem finding the tail string of any of the IUD’s she had used.

In September 1985, after reading newspaper coverage and seeing television reports of various lawsuits brought against IUD manufacturers, the plaintiff asked her new gynecologist, Dr. Jarolim, if the CU-7 might have caused the problems she experienced in 1977 and 1978. Dr. Jarolim’s initial response was that he doubted a causal connection existed but that he would review the records of Dr. Klein, who had died. After Dr. Jarolim reviewed the records, he said that most probably an IUD had been responsible for the problems that resulted in the plaintiff’s surgery and that he would testify to that conclusion. She then consulted an attorney.

The applicable law has been set out in two cases decided by the supreme court on the same day. In one case the court discussed the history of the rule governing the statute of limitations in medical malpractice cases (Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869), and the other discussed the rule in strict liability cases (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 421 N.E.2d 864). Both cases make it clear that the rule applicable to both classes of cases is the same: The cause of action accrues when the plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that the injury was wrongfully caused. Witherell, 85 Ill. 2d at 156; Nolan, 85 Ill. 2d at 169.

We agree with the defendant’s interpretation of Nolan that the running of the statute is not tolled until the plaintiff knows or should know he has a cause of action against the defendant. The court so expressed itself. (85 Ill. 2d at 170.) But the court clarified its holding as follows (85 Ill. 2d at 171):

“We hold, therefore, that when a party knows or reasonably should know both that an injury has occurred and that it was wrongfully caused, the statute begins to run and the party is under an obligation to inquire further to determine whether an actionable wrong was committed. In that way, an injured person is not held to a standard of knowing the inherently unknowable, [citation] yet once it reasonably appears that an injury was wrongfully caused, the party may not slumber on his rights.”

The Nolan court cited with approval Wigginton v. Reichold Chemicals, Inc. (1971), 133 Ill. App. 2d 776, 274 N.E.2d 118. That case involved a defective product, and the court made this pronouncement as to the applicable rule (133 Ill. App. 2d at 779-80):

“In cases involving a disease resulting from neglect, negligence or a defective product we believe that the more logical and tenable position is that the cause of action accrues and the statute of limitation begins to run when the diseased party discovered or should have discovered that he is ill as a result of some neglect or negligence on the part of another party or as the result of being wrongfully exposed to a defective product.” (Emphasis added.)

We wish to emphasize that, contrary to the dissenting opinion’s impression of our views, we do not mean to suggest that the statute is not triggered until the plaintiff gains actual knowledge of an actionable wrong or negligent conduct. The test in this case, therefore, is not whether the plaintiff should have known she had a cause of action against Searle in 1977 or 1978 but, rather, whether in 1977 or even 1978 she was possessed of knowledge that placed her under an obligation to inquire further to determine whether or not an actionable wrong had been committed, that is, that she had been exposed to a defective product.

The defendant argues that there are two rules applicable to medical malpractice and product liability cases, the “traumatic injury” rule and the discovery rule. There is but one rule, the discovery rule, as the very case cited by the defendant illustrates. In Lutes v. Farley (1983), 113 Ill. App. 3d 113, 115, 446 N.E.2d 866, the court said this: “Certainly, the stillbirth of a child is a sudden, traumatic event which should prompt some investigation by the injured party and trigger the application of the discovery rule.” (Emphasis added.) And in Pszenny v. General Electric Co. (1985), 132 Ill. App. 3d 964, 478 N.E.2d 485, the appellate court held that the classification of an injury as “traumatic” or “non-traumatic” merely aids in the determination of when the plaintiff discovered, or should have discovered, that the injury was caused by wrongful conduct.

There is an abundance of cases involving summary judgment and the statute of limitations in medical malpractice and strict liability actions. Many of them are reversals of summary judgment orders. (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 421 N.E.2d 864; McIntyre v. Christ Hospital (1989), 181 Ill. App. 3d 76; Peterson v. Loseff (1987), 159 Ill. App. 3d 16, 512 N.E.2d 5; Saunders v. Klungboonkrong (1986), 150 Ill. App. 3d 56, 501 N.E.2d 882; Paske v. Green (1986), 142 Ill. App. 3d 367, 491 N.E.2d 1195; Pszenny v. General Electric Co. (1985), 132 Ill. App. 3d 964, 478 N.E.2d 485; Lind v. Zekman (1979), 77 Ill. App. 3d 432, 395 N.E.2d 964; Martinez v. Rosenzweig (1979), 70 Ill. App. 3d 155, 387 N.E.2d 1263; Roper v. Markle (1978), 59 Ill. App. 3d 706, 375 N.E.2d 934.) Other cases have upheld the grant of summary judgment. (Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869; Barry v. G.D. Searle & Co. (1974), 56 Ill. 2d 548, 309 N.E.2d 550; Moore v. A.H. Robins Co. (1988), 167 Ill. App. 3d 19, 520 N.E.2d 1007; Lutes v. Farley (1983), 113 Ill. App. 3d 113, 446 N.E.2d 866.) All differ factually from each other and from this case, but they provide some assistance in resolving the question before us. We shall discuss some of the cases; but, again contrary to the dissenting opinion’s impression of our views, our discussion should not be construed to be an implication on our part that independent confirmation of the plaintiff’s existing suspicion by others is necessary to activate the limitation period.

Particularly in point is Martinez v. Rosenzweig (1979), 70 Ill. App. 3d 155, 387 N.E.2d 1263. That case involved a suit for malpractice against a physician and a claim for strict liability against the manufacturer of an IUD. In 1973 the plaintiff’s gynecologist, a defendant in the case, inserted an IUD into her uterus. Later that same year she became pregnant. When the plaintiff asked her doctor what had happened to the IUD, he said he was not sure but that most likely it fell out or that it would come out when the baby was born. The plaintiff assumed that the IUD had fallen out. The doctor continued to treat the plaintiff during the term of the pregnancy before the plaintiff’s premature delivery of a stillborn fetus, but he never mentioned the IUD. The plaintiff continued to see the doctor and sought treatment for abdominal pains and severe discharges for almost two years. When the defendant could not diagnose what was prompting the severe pain, the plaintiff saw another gynecologist, who determined that a foreign object was in her abdomen and surgically removed the IUD.

The trial court granted the defendant’s motion to dismiss on the ground that the action was untimely filed. The appellate court reversed, holding that the statute began to run against the doctor and the manufacturer at the same time, and made this observation (70 Ill. App. 3d at 161-62):

“Thus, the pain and discharges could be symptomatic of many conditions. They could have been the result of many natural disorders, unrelated to the presence of the I.U.D. Dr. Rosenzweig, who was an expert in gynecology, treated her for the symptoms and failed to diagnose the true nature of the problem. He had told her that the I.U.D. had probably fallen out and had treated her for some period of time without discovering the I.U.D. It would appear reasonable that Mrs. Martinez did not know or have reason to know the nature of her problem when a gynecologist, who is a specialist in those matters, did not discover it.”

At this juncture, we express disagreement with the statement of the trial court that the actions of Dr. Klein were “not relevant” against Searle. While the court did not reveal the basis of that remark, we conclude that it may have been certain language in Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869. We construe the language of the supreme court to mean that advice of a physician is not conclusive as to the manufacturer. It did not say such evidence was irrelevant. In Lind v. Zekman (1979), 77 Ill. App. 3d 432, 395 N.E.2d 964, the appellate court said if the physicians treating the plaintiff did not draw a causal connection between surgery and her blindness, it could not be said that the plaintiff’s failure to suspect her physician of negligence was unreasonable. In Wigginton v. Reichold Chemicals, Inc. (1971), 133 Ill. App. 2d 776, 274 N.E.2d 118, a chemical exposure case, the court found significant, in the plaintiff’s failure to discover the cause of his illness, the fact that even his doctor did not know the cause.

The very recent case of McIntyre v. Christ Hospital (1989), 181 Ill. App. 3d 76) involved a plaintiff who was six years old when the defendant performed surgical repair of a hernia previously diagnosed by the plaintiff’s family physician. At all times before and after the surgery the plaintiff’s testicles were undescended. From the time he entered high school he was aware that his condition was not like that of other boys. He thought his condition was attributable to the hernia surgery. When he was 20 years old, another doctor operated on him for kidney stones and noticed that he had undescended testicles. He informed the plaintiff, who alleged that this was his first knowledge that he had undescended testicles. That operating doctor swore in an affidavit that the defendant deviated from the appropriate standard of care by failing to detect the condition of undescended testicles in an examination following the surgery.

The trial court dismissed the complaint because the statute had expired two years after the plaintiff reached his eighteenth birthday. The appellate court reversed and rejected the defendant’s argument that the plaintiff’s awareness of the peculiar nature of his condition and his admission that he believed that the condition was caused by the hernia operation triggered the application of the statute as a matter of law. The court held that those aspects of the evidence were offset by the fact that his family physician told him that everything was fine after regular examinations and that after physical examinations at the Chicago Park District he was not told that anything was wrong.

Surely Searle would not argue that such evidence would be irrelevant if it could establish that Dr. Klein told the plaintiff he believed the IUD was defective. Indeed, some of the cases cited by Searle, which we will discuss later, placed considerable store on what physicians told their patients.

The question of when a party knew or reasonably should have known both of an injury and its wrongful cause is one of fact, unless the facts are undisputed and only one conclusion may be drawn from them. (Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869.) These facts are undisputed, and the question is reduced to whether only one conclusion may be drawn from them.

The plaintiff in this case was in much the same position as the plaintiff in Martinez v. Rosenzweig. She was under the care of an expert in gynecology, and she relied on his advice and deferred to his superior knowledge. He informed her finally that her body was rejecting the IUD, an idiosyncratic reaction, with which even laymen are familiar in varying degrees. It is interesting to note that one of the defenses by Searle is that the injury was caused, not by a defect in the product, but by an idiosyncratic reaction. By no means are we saying that we assume that the plaintiff did in fact experience an idiosyncratic reaction as the dissent seems to suggest. If the evidence shows that the plaintiffs condition of ill-being was caused by such a reaction, that, of course, could well absolve the defendant from any liability; but, if the plaintiff did conclude that such a reaction caused her “rejection” of the IUD, a fact finder could conclude that her belief, even though mistaken, was not unreasonable.

For these reasons, we do not believe it can be said, as a matter of law, and as the trial court held, that the plaintiff “possessed sufficient information concerning her injury to require her to use due diligence to ascertain whether actionable conduct of Searle was involved.” In our judgment reasonable persons could disagree on the question.

The defendant relies principally on two State cases that are distinguishable on their facts. Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869, included a claim against a physician for malpractice and against a manufacturer of a birth control pill. Both pleaded the statute of limitations.

The court dismissed both claims as a matter of law on the ground that they were not timely filed. The supreme court upheld the dismissal against the manufacturer and reversed as to the physician. In 1966 the defendant, Dr. Weimer, prescribed a birth control pill manufactured by the other defendant, Ortho-Novum. Shortly after she began taking the pill, the plaintiff suffered severe pain and spasms in her leg, which became so swollen she could hardly bear weight on it. She consulted with Dr. Weimer the following year. His associate, Dr. Taubert, hospitalized her and told her he thought she had a blood clot •in her leg. Dr. Weimer, however, told her she had a muscle condition and would have to learn to live with it. She continued to have pain and spasms, which progressively worsened, for five years. Dr. Weimer continued to treat her.

She was hospitalized by Dr. Weimer in 1972 and told him that she had heard from other women that birth control pills could cause blood clots. He “laughed” and said she should not worry, that the pills were safe and they would not harm her. She discontinued use of the pills for one month in 1973 at the urging of her mother but resumed taking them after Dr. Weimer again reassured her. She continued to see Dr. Weimer until 1976. During that three-year period Dr. Weimer told her it was a muscle condition and that there was nothing wrong with the veins in her legs.

In upholding the dismissal for lack of timeliness, the supreme court emphasized the fact that the plaintiff’s mother and others had told her the pill could cause blood clots, that Dr. Taubert told her in 1967 and 1972 that she was having blood clots in her leg and that she knew there was a conflict between the diagnoses of the doctors. None of those facts, so damaging to the plaintiff’s position, appears here.

In Moore v. A.H. Robins Co. (1988), 167 Ill. App. 3d 19, 520 N.E.2d 1007, the appellate court affirmed the trial court’s dismissal of the complaint for lack of timeliness. The plaintiff had filed a complaint against her gynecologist and the IUD manufacturer 11 years after the Daikon Shield was inserted into her uterus and approximately 10 years after its removal. Like this case, the plaintiff was prompted to begin her investigation after viewing a television report outlining the effects of the Daikon Shield.

The defendant gynecologist had inserted an IUD in June 1974. Thereafter the plaintiff developed pain and an infection. During each visit to the doctor concerning her ailments, she inquired as to the reason for the pain and infection, and the doctor told her not to worry about it. Sometime in 1975 he told her the IUD had to be removed. He identified it as a Dalkon Shield. She repeatedly asked why the removal was necessary. “He refused to explain” and said only, “Do not worry about it, when the infection clears up, we can insert an improved I.U.D.” Moore, 167 Ill. App. 3d at 22. (Emphasis added.)

In late 1975 or early 1976 he told her that she was pregnant and that the fetus had died in útero, requiring a dilatation and curettage, which was performed in March 1976. Approximately one month after the surgery, the defendant’s associate told her she was not pregnant at the time the procedure was performed. She had learned in May 1975 that she had parametritis secondary to her IUD. The doctor never told her that the parametritis necessitated the dilatation and curettage or that the IUD was the source of her physical problems. The trial judge, in dismissal, emphasized the fact that the plaintiff had received conflicting information from the defendant and his associate.

The appeal involved only the complaint against the doctor and not the manufacturer. Her claim against the doctor was based on her allegation that he inserted the Daikon Shield knowing it to be dangerous. The appellate court noted that the plaintiff’s medical records demonstrated that she was pregnant in early 1976 and that she had an infection secondary to her IUD in May 1975. The court concluded, therefore, that her allegation that the defendant told her she was pregnant in order to conceal the true reason for the dilatation and curettage was “meritless.”

In affirming the order of dismissal, the court stressed these uncontradicted facts in support: the plaintiff experienced pain and infection following the insertion of the IUD and those difficulties ceased after the IUD was removed; the defendant’s statements indicated that the source of the infection was the IUD; and one month after the dilatation and curettage the defendant’s associate told the plaintiff that the dilatation and curettage was not prompted by her pregnancy. The court concluded that those facts were sufficient to put a reasonable person on notice that the defendant’s treatment might have been the source of her physical complications. Factually, the Moore case is wide of the mark in this case. Dr. Klein did not ignore repeated requests by the plaintiff and never “refused to explain” why the IUD should be removed; he never told the plaintiff that the IUD was the source of the infection; he never mentioned inserting an improved IUD, which'would imply to any reasonable person that something was wrong with the first one; and he certainly was not contradicted by any other doctor or anyone else.

The defendant has also cited three Federal court of appeals decisions, which are also factually distinguishable.

In Miller v. A.H. Robins Co. (7th Cir. 1985), 766 F.2d 1102, the plaintiff filed an affidavit in which she said she had been hospitalized in 1974 for symptoms consistent with an infection but was not advised by her physicians that there was any connection between the illness and injury and her use of a Daikon Shield. However, in her deposition she testified that her physician told her that the Daikon Shield was irritating her treatment and that it was a possible source of her infection. The court of appeals held that the deposition controlled.

In Curry v. A.H. Robins Co. (7th Cir. 1985), 775 F.2d 212, the plaintiff developed severe menstrual irregularity and increasing pain. Her doctor was unable to locate the tail string on the IUD, and an operation was required to remove it. There are two facts present in that case that are absent here. First, there was obviously something wrong with the IUD. Second, and most damaging, as the court emphasized, the plaintiff conceded in her brief and in argument that “she was aware of the relationship between her medical problems and the I.U.D.” at the time of her operation.

In Sellers v. A.H. Robins Co. (11th Cir. 1983), 715 F.2d 1559, the court pointed out that Alabama was not a “discovery” State for purposes of medical malpractice cases. Only fraudulent concealment would toll the running of the statute. The court simply held that the record failed to establish fraudulent concealment on the part of the manufacturer. We note parenthetically that although the court of appeals affirmed the trial court’s dismissal, it subsequently granted a rehearing. (Sellers v. A.H. Robins Co. (11th Cir. 1984), 732 F.2d 129.) That case does not address the issue in this case.

The defendant also argues that it will be prejudiced by the difficulties in proof that have occurred because of the passage of seven years between the occurrence and the filing of the complaint. This argument is based primarily on the result of the death of Dr. Klein and the plaintiff’s own fading memory. The fact is, however, that the legislature has seen fit to permit the filing of some complaints in products liability cases within 12 years of the date of the first sale by the manufacturer or 10 years from the date of the first possession by the purchaser, and this case is within the limits of the statute.

After considering the plaintiff’s argument, we are convinced that the absence of Dr. Klein redounds in favor of the defendant rather than the plaintiff. His medical records still exist and were used by the defendant in support of its argument here. Further, the defendant has advanced the additional argument that Dr. Klein knew of the risks involved in the CU-7 and was “aware of a possible connection between her symptoms and the I.U.D.”; in other words, that Dr. Klein, knowing that the IUD might be defective, still prescribed it for the plaintiff after considering all of the risks and benefits. This is an argument that the defendant may well advance at trial, and it will be the plaintiff who will be prejudiced by the absence of Dr. Klein, who will not be able to defend himself against so grim a charge.

The right of a moving party for a summary judgment must be clear and free from doubt. (Lind v. Zefcman (1979), 77 Ill. App. 3d 432, 395 N.E.2d 964.) Since, in our judgment, the record in this case raises a question of fact as to when the plaintiff possessed sufficient information concerning her injury to require her to use due diligence to ascertain whether actionable conduct of the defendant was involved, the summary judgment was improperly granted. Therefore, we remand the case for further proceedings consistent with this opinion.

Judgment reversed and remanded.

SCARIANO, J., concurs.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE EGAN delivered the supplemental opinion upon denial of rehearing:

In the petition for rehearing the defendant maintains that the majority “appears” to have misconstrued the applicable law based on our discussion of Wigginton v. Reichold. It argues that the majority has held that the statute begins to run when the plaintiff discovered or should have discovered that her injury was caused by being exposed to a defective product. We thought that our opinion made our holding clear, but we will repeat the pertinent parts in an attempt to do so here.

We pointed out that the court in Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171, 421 N.E.2d 864, clarified its position as to the running of the statute:

“[T]he statute begins to run and the party is under an obligation to inquire further to determine whether an actionable wrong was committed.” (Emphasis added.)

We also said the following:

“The test in this case, therefore, is not whether the plaintiff should have known she had a cause of action against Searle in 1977 or 1978 but, rather, whether in 1977 or even 1978 she was possessed of knowledge that placed her under an obligation to inquire further to determine whether or not an actionable wrong had been committed, that is, that she had been exposed to a defective product.” (Emphasis added.) 182 Ill. App. 3d at 51.
“[W]e do not believe it can be said, as a matter of law, and as the trial court held, that the plaintiff ‘possessed sufficient information concerning her injury to require her to use diligence to ascertain whether actionable conduct of Searle was involved.’ In our judgment reasonable persons could disagree on the question.” (Emphasis added.) (182 Ill. App. 3d at 54.)
[T]he record in this case raises a question of fact as to when the plaintiff possessed sufficient information concerning her injury to require her to use due diligence to ascertain whether actionable conduct of the defendant was involved.” (Emphasis added.) 182 Ill. App. 3d at 57.

The defendant also maintains that the majority “implies” that it was required that Dr. Klein tell the plaintiff that “he believed the IUD was defective.” We imply nothing of the sort. We thought the opinion made that clear also:

“[O]ur discussion should not be construed to be an implication on our part that independent confirmation of the plaintiff’s existing suspicion by others is necessary to activate the limitation period.” 182 Ill. App. 3d at 52.

The defendant argues that our analysis is inappropriate because it conflicts with substantive tort law governing prescription drugs. In support, it points out that the CU-7 Intrauterine Copper Coil has been classified and approved by the Food and Drug Administration as a prescription drug, and that under Illinois law, a prescription drug is not considered defective or unreasonably dangerous merely because it is associated with risk or causes injury; but only if sold without adequate warnings of risks that are known or should have been known to the manufacturer. Apart from the fact that this is an argument never advanced before, we reject it because it is a matter of defense to the plaintiff’s complaint. We point out that, for the purposes of the motion to dismiss, the allegations that the CU-7 was defectively designed were admitted.

Last, the petitioner contends that the majority opinion “assumes” that Dr. Klein did not know of any possible causal connection between the plaintiff’s injuries and the IUD. The defendant argues at great length to refute that “assumption.” Our answer is that we made no such assumption, as the majority opinion should illustrate. We pointed out that the defendant had argued that Dr. Klein, at the time he prescribed the IUD, knew of the risks and was aware of a possible connection between the plaintiff’s symptoms and the IUD. In response to that argument, we said that that was “an argument that the defendant may well advance at trial.” (182 Ill. App. 3d at 57.) That statement in the opinion cannot be reconciled with an alleged “assumption” on our part that Dr. Klein did not know of any possible causal connection between that plaintiff’s injuries and the IUD.

SCARIANO, J., concurs.

JUSTICE HARTMAN,

dissenting:

Respectfully, I am compelled to dissent. I agree that the phrase “reasonably should know *** [an injury] was wrongfully caused” may be restated as “possessed of sufficient information concerning [the] injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved.” (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 416, 430 N.E.2d 976; Moore v. A.H. Robins Co. (1988), 167 Ill. App. 3d 19, 23, 520 N.E.2d 1007.) The result reached by the majority, however, neglects this principle and suggests instead that the statute of limitations is not triggered until plaintiff gains actual knowledge of an actionable wrong or negligent conduct. Furthermore, the majority may not intend that such an inference be drawn; nevertheless, the discussion of Martinez v. Rozenweig (1979), 70 Ill. App. 3d 155, 387 N.E.2d 1263, Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869, Wigginton v. Reiehold Chemicals, Inc. (1971), 133 Ill. App. 2d 776, 274 N.E.2d 118, and Moore will lead readers of this opinion to believe that independent confirmation of plaintiff’s existing suspicions, be it by the media or third persons, is somehow necessary to activate the limitations period. I do not believe that such requirement exists in the case law. It is enough, rather, that plaintiff alone possess sufficient facts to place a reasonable person on inquiry.

In the case sub judice, plaintiff’s deposition testimony demonstrated she suffered incapacitating pain, bloating and constipation within 20 months of insertion of the first CU-7 device in April 1976. This episode was followed immediately by surgery to remove a “giant mass,” part of an ovary and one fallopian tube. Four months after insertion of a second CU-7 in December 1977, plaintiff consented to removal of the device after again experiencing “very bad cramping” and “lower abdominal pain,” although admittedly not of the same severity as occurred in 1977. Significantly, Dr. Klein informed plaintiff in March 1978 that plaintiff’s body was “rejecting” the IUD and that it “couldn’t take another IUD.” Plaintiff herself “knew” in 1978 she could not physically withstand the insertion of another IUD, stating at her deposition, “I could figure that out for myself,” and “[A] foreign substance was causing me pain at this time. I was able to determine that another foreign substance might do the same.” Although the events of 1977 might not alone have actuated the statute of limitations, plaintiff had by March 1978 endured two incidents of similar symptoms associated with the insertion of the CU-7. Her statements regarding her inability to tolerate another IUD demonstrate without doubt that she already had acquired sufficient facts of a possible link between the CU-7 and her alleged injury, reasonably placing upon her the burden to inquire further.

Moreover, the majority minimizes the significance of Dr. Klein’s statement that plaintiff’s body “rejected” the IUD as evidence of an “idiosyncratic reaction, with which even laymen are familiar in varying degrees.” (182 Ill. App. 3d at 54.) This contention, however, assumes a legal result not yet proved and is, in any event, irrelevant: the motion for summary judgment at bar inquires only whether facts existed to reasonably require investigation by plaintiff, not whether those facts ultimately demonstrate a physical reaction unique to plaintiff alone.

If Moore v. A.H. Robins Co. is “wide of the mark in this case,” as the majority suggests (182 Ill. App. 3d at 56), it is only because the facts in the present case more strongly favor defendant. Admittedly no “contradictory statements” from the defendant physician were made here, as they were in Moore, but Dr. Klein clearly and directly advised plaintiff in 1978 that her body was “rejecting” the IUD and that her body “couldn’t take another.” Based upon the preceding episodes in 1977 and early 1978 involving the IUD, a reasonable person should have begun to inquire in 1978, following the doctor’s comments to her, as to why she was sustaining these substantial symptoms and injuries and was caused to undergo the operation.

Recently, we have decided McIntyre v. Christ Hospital (1989), 181 Ill. App. 3d 76, in which we held that summary judgment was improperly entered against a plaintiff who possessed undescended testicles apparently from birth, but attributed the absence of testicles to a hernia operation performed on him by the defendant surgeon at age six. After age six, he underwent a series of physical examinations and was constantly assured by his family physician performing those examinations that “everything [was] fine.” Although he noticed the absence of a mass in his testicular region, he never was told that anything was wrong by his family physician or his employer’s physician who administered employment examinations for several years. The first intimation he received of possible wrongdoing came after surgical removal of a kidney stone at age 20, when that surgeon advised him that surgery for the purpose of lowering his testicles should have been performed at the time of his hernia operation when he was age six. We held there that summary judgment in favor of defendant hernia surgeon under those facts was erroneous and remanded the cause for a determination by the fact finder as to whether McIntyre possessed sufficient information to put a reasonable person on inquiry as to wrongdoing. These facts, in my opinion, are in stark contrast to the facts of the instant case which demonstrate that Mrs. Ravin herself “knew” in 1978 that she was unable to withstand physically the insertion of another IUD and “could figure that out” for herself.

Accordingly, I would affirm the decision of the circuit court in this case.

       Justice Egan participated in this opinion prior to his assignment to the sixth division.