author: JUSTICE MURRAY

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, Plaintiff-Appellee, v. WILLIAM ROBERT LEE, Defendant (Nathan Shefner, Defendant-Appellant).
    First District (5th Division)
    No. 1—90—1596
    Opinion filed June 5,1992.
    Nathan Shefner, of Chicago, appellant pro se.

    Gary J. Matejcak, of Mathews, Jackson & Hollywood, of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Defendant Nathan Shefner (Shefner) appeals from an order of the circuit court of Cook County, striking his motion to vacate a default judgment against him dated December 14, 1989. For several reasons, we dismiss the appeal.

The history of the case is rather extensive. In 1984 William Robert Lee (Lee), represented by attorney Nathan Shefner (defendant-appellant herein), filed a complaint for an accounting and injunction against his sister, Susan Egan. In the complaint Lee alleged that funds his mother and grandmother obtained from the sale of certain real property had been fraudulently withheld from distribution upon his mother’s death. Egan filed a motion to dismiss the complaint and for an award of attorney fees pursuant to section 2 — 611 of the Code of Civil Procedure. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 611.) The motion was granted and attorney fees in the amount of $1,875 were awarded.

Lee appealed the order dismissing his complaint and awarding attorney fees and petitioned the appellate court to issue an order staying the enforcement of the order awarding attorney fees pending the appeal. The stay was granted with the proviso that an appeal bond be filed with the court in the amount of $2,500. In response, Shefner entered into a surety bond contract with United States Fidelity and Guaranty Company (USF&G). An appeal bond was then posted in this court with USF&G as surety. The appeal bond stated, “We jointly and severally agree to pay [Egan’s attorneys] any part of the award which is not reversed.” Shefner signed the appeal bond for Lee and in his own name “as principal.”

Subsequently, this court affirmed the dismissal of Lee’s complaint and the award of attorney fees. (See Lee v. Egan (1987), 160 Ill. App. 3d 1078, 513 N.E.2d 1023.) Thereafter, Egan and her attorneys made a demand upon USF&G as surety on the appeal bond. On May 12, 1988, USF&G discharged its obligation and paid Egan’s attorneys $2,477.93, which represents the full payment of the $1,875 judgment plus interest. USF&G then made a demand for reimbursement upon Shefner, but Shefner refused to pay. Consequently, USF&G filed a complaint in the circuit court of Cook County against Lee and Shefner to recover the monies it had expended. Lee, however, was apparently never served.

Shefner appeared on his own behalf and filed a motion to strike and dismiss the complaint, alleging that USF&G failed to state a cause of action against him. Shefner admitted in his memorandum to the court that USF&G paid $2,477.93 to Egan’s attorneys based upon the bond that had been posted in Lee’s appeal. However, Shefner alleged that the payment had been improper because the award of attorney fees had not been “reduced to judgment” or “recorded in the office of the Recorder of Deeds” and thus “was meaningless insofar as creating a lien on real or personal property of William Robert Lee.”

On November 30, 1989, the circuit court denied Shefner’s motion to strike and dismiss the complaint and set the matter for trial on Decernber 14, 1989. Shefner failed to appear in court on that date and a default judgment was entered against him in the amount of $2,477.93 plus costs. On January 5, 1990, Shefner filed a motion to vacate the December 14, 1989, judgment against him, and on May 14, 1990, the motion was denied. In addition, the court continued to June 11, 1990, the hearing on USF&G’s motion for attorney fees.

On June 4, 1990, Shefner filed a notice of appeal, stating that he was appealing “from the ex party [sic] judgement entered on December 14,1989.”

It is difficult to know where to begin when addressing this appeal. Although Shefner’s notice of appeal indicates that he is appealing from the December 14 order, wherein the court entered a default judgment against him, he includes the order dated May 14, 1990, in his brief as the order appealed from. Also, in the notice of appeal, Shefner states that he seeks a reversal of the “order appealed from,” i.e., the order denying his motion to vacate, yet he never addresses the trial court’s denial of the motion to vacate in his appeal.

We realize that a notice of appeal brings before the reviewing court the entire record and is to be liberally construed. However, when an appeal is taken from a specified judgment, the appellate court does not acquire jurisdiction to review other judgments not specified in the notice of appeal. Outdoor Media, Inc. v. Village of Bellwood (1987), 162 Ill. App. 3d 1041, 516 N.E.2d 419.

Assuming that we are being asked to consider the May 14 order denying Shefner’s motion to vacate, we note that a trial court may, in its discretion, vacate any default at any time before final order or judgment is entered or set aside any final order or judgment upon petition filed within 30 days of its entry. (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1301(e).) The moving party has the burden of establishing sufficient grounds to vacate a judgment, and the trial court’s resolution of this matter will not be reversed absent an abuse of discretion. Day v. Curtin (1989), 192 Ill. App. 3d 251, 254, 548 N.E.2d 670.

In this case Shefner failed to even attempt to demonstrate in what manner the trial court abused its discretion by refusing to vacate the judgment against him. Rather, Shefner disregarded the trial court’s order on the motion to vacate altogether and merely presented his proposed defense to the complaint itself.

Furthermore, Shefner’s brief on appeal, under the heading “Points and Authorities,” sets forth three items and lists two cases. However, the portion of the brief entitled “Argument,” which is less than two pages in length, makes no reference to the three proposed “points” and cites no case law. The statement of facts contains no referenees to pages of the record on appeal, contains copies of orders rather than a summary of their content and directs this court to make “a part hereof” several documents contained within the record. We believe that this brief fails to meet the minimum standard requirements of Supreme Court Rule 341(e) (134 Ill. 2d R. 341(e)) and would warrant the striking of Shefner’s brief and dismissal of the appeal.

Nevertheless, it is also apparent from the record that this court lacks jurisdiction to consider the appeal since Shefner has appealed from a nonfinal order which does not contain the language necessary under Supreme Court Rule 304(a) for making nonfinal orders appealable. 134 Ill. 2d R. 304(a).

Shefner appealed from the May 14, 1990, order denying his motion to vacate the default entered against him on December 14, 1989. A copy of the December 14, 1989, order is not contained within the record. However, it is clear from the record that the default judgment entered on this date decided only the issue of Shefner’s liability on the surety bond. The court did not determine the amount of damages to which USF&G was entitled. On May 14, 1989, the trial court had still not assessed the amount of damages due USF&G. In addition to denying Shefner’s motion to vacate, the May 14, 1990, order granted USF&G a continuance for a prove up on the issue of attorney fees, an element of damages claimed by USF&G in its complaint. Consequently, all of the claims had not yet been disposed of and no final order yet existed from which Shefner could appeal.

Appeal from a nonfinal order is governed by Supreme Court Rule 304(a). A nonfinal order must contain the special ruling that there is no just cause to delay enforcement or appeal of the judgment to become appealable. This court is not vested with jurisdiction to consider an appeal of a nonfinal order which does not contain this language (Raglin v. HMO Illinois, Inc. (1991), 217 Ill. App. 3d 1076, 578 N.E.2d 108), and failure to obtain the necessary language makes it encumbent upon this court to dismiss the appeal.

Because Shefner has appealed from a nonfinal order which does not contain the necessary language set forth in Rule 304(a), we dismiss the appeal.

Appeal dismissed.

McNULTY, P.J., and GORDON, J., concur.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    ARTHUR T. SUSMAN, Plaintiff-Appellant, v. VERN D. PRICE et al., Defendants (Joseph Sadacca, Defendant-Appellee).
    First District (5th Division)
    No. 1—91—0675
    Opinion filed June 5,1992.
    Robert E. Williams, of Susman, Saunders & Buehler, of Chicago, for appellant.
    Gene K. Edlin, of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Arthur T. Susman, claims an interest in the real property of defendants, Vern D. Price and Norma Price. Susman appeals under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) from an order finding that if his option to purchase the Prices’ property was enforceable, he was only entitled to 25% of the sale proceeds rather than 25% of the real estate itself. The order also allowed the Prices to sell their property to defendant, Joseph Sadacca. We consider whether the order appealed from was a final judgment as required under Rule 304(a). For the following reasons, we dismiss the appeal for lack of jurisdiction.

Susman filed a two-count complaint against the Prices and Sadacca. In count I, he requested a declaratory judgment to determine his right under the option agreement to purchase an interest in the property, and in count II, he sought specific performance to purchase an interest in the property.

Susman alleged that the Prices owned the property at 1016-18 West Madison Street in Chicago. When they failed to pay the real estate taxes on the property, it was sold and a tax deed was issued. The Prices were unable to obtain a loan to buy the property back, and they discussed the matter with Susman, who was their attorney. Susman agreed to assist them but advised them that he was not acting as their attorney and that they should retain other counsel.

Susman and the Prices obtained an $80,000 loan and mortgage to purchase the property and, in exchange, the Prices granted Susman an “option to purchase an undivided one quarter interest (V-ith) in the property and improvements located at 1018 West Madison Street” for $60,000. The agreement provided that the Prices had a duty to “enter into a bona fide sale of the [pjremises resulting in the transfer of all of the title and beneficial ownership of [the Prices’] interest in the property on or before August 17, 1989.”

Susman alleged that on August 15, 1989, the Prices contracted to sell the property to Sadacca for $450,000. Beginning in November of 1989, Susman contacted the Prices to determine the status of the contract, and in February of 1990, they refused to honor his option.

The Prices answered the complaint and denied the material allegations. They asserted that Susman acted as their attorney and that they signed the agreement without understanding it. They also stated that the agreement attached to Susman’s complaint had a different first page than the one they signed.

The trial judge ordered the parties to submit memoranda on the meaning of the option agreement. After a hearing, the judge found that because Susman exercised his option after the Prices entered into the real estate contract with Sadacca, Susman was only entitled to an interest in the sale proceeds. The judge entered an order which stated in part:

“The court finds that [Susman], if the option be in effect and enforceable, is entitled to 25% of net proceeds of sale and not to any interest in the fee simple of the improved real estate, and
IT IS HEREBY ORDERED
(1) The sale of the property with regard to which this suit was brought may proceed, said property to be sold to *** Sadacca per the contract referred to in the pleadings and briefs.
(2) The court expressly denies [Susman*s] request to stay the sale pending appeal.
* * *
(5) To the extent that [Susman] may be determined to have an interest in the earnest money of $19,000 previously paid to [the Prices], [Susman] shall be entitled to receive 25% credit for [his] share with interest as may be determined, against the share of [the Prices] of the $60,000 option-exercise price now on deposit with the Clerk of the Court.
(6) Pursuant to Illinois Supreme Court Rule 304 the court expressly finds that there is no just reason for delaying enforcement or appeal.”

Susman filed a timely notice of appeal from the order. This court stayed the sale of the property pending appeal.

Opinion

Initially, we note that Sadacca’s brief was not considered on appeal because he did not cite any law to support his argument, violating Supreme Court Rules 341(e)(7) and (f), which require that arguments be supported with citation to authority. (134 Ill. 2d Rules 341(e)(7), (f).) Arguments raised without citation to authority do not merit consideration and are waived. Lunde v. Rockford Public Library Board (1987), 153 Ill. App. 3d 803, 506 N.E.2d 385.

Turning to the question of jurisdiction, Supreme Court Rule 304(a) allows an appeal from a final judgment which disposes of fewer than all of the parties or claims only if the trial judge made an express written finding that there was no just reason for delaying enforcement or appeal. (134 Ill. 2d R. 304(a).) Although a judgment may state that it was entered pursuant to Rule 304(a), it is not appealable unless it was a final judgment. (134 Ill. 2d R. 304(a); Arachnid, Inc. v. Beall (1991), 210 Ill. App. 3d 1096, 569 N.E.2d 1273.) A judgment is final if it disposes of the rights of the parties either on the entire controversy or on some definite and separate part of it. Arachnid, 210 Ill. App. 3d 1096, 569 N.E.2d 1273.

In this case, the order stated that if the option agreement was enforceable, Susman was only entitled to an interest of the sale proceeds rather than an interest in the fee simple ownership of the property. The order was conditioned on the statements that “if the option be in effect and enforceable” and “to the extent that [Susman] may be determined to have an interest.” This language is tentative and not indicative of a final judgment. Susman contends that the order was final because it adjudicated Sadacca’s rights under the option agreement; however, the order did not dismiss Sadacca as a party or enter judgment in his favor. Also, it did not dispose of either count of Susman’s complaint. As a result, the order did not conclude a definite part of the case and it was not final. For these reasons, the appeal must be dismissed for lack of jurisdiction.

Further, even if the order was final, the entry of a Rule 304(a) finding was an abuse of discretion. “The purpose of Rule 304(a) is to discourage piecemeal appeals and requires the careful exercise of the court’s discretion.” (Fleetwood Development Corp. v. Northbrook Property & Casualty Insurance Co. (1988), 172 Ill. App. 3d 83, 86, 526 N.E.2d 381, 384.) Here, the court attempted to decide the scope of the option agreement before it decided whether it was enforceable. That issue need never be decided if the agreement is not enforceable.

Appeal dismissed.

McNULTY, P.J., and GORDON, J., concur.


text:
    GERIK RAGLIN, a Minor, by Jasper Raglin et al., his Parents and Next Friends, et al., Plaintiffs-Appellants, v. H M O ILLINOIS, INC., et al., Defendants-Appellants (Pronger-Smith Medical Associates et al., Defendants).
    First District (5th Division)
    No. 1—91—2775
    Opinion filed June 5,1992.

      Power, Rogers & Lavin, of Chicago (Larry R. Rogers, of counsel), for appellants.
    G. Christian Kronberg and Terri Abruzzo, both of Kirkland & Ellis, of Chicago (Carolyn Clift, of Health Care Service Corporation, of counsel), for appellees.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiffs appeal from the grant of summary judgment in favor of Health Care Service Corporation (HCSC) and HMO Illinois, Inc. (HMOI). The issue before this court is whether HCSC and HMOI may be held vicariously liable for the negligence of doctors under contract with them to provide medical services to the members of their health care plan.

The facts of this case are as follows.

Gwendolyn Raglin (Raglin) became a member of HMOI through her employment and in June 1985, because of her membership in HMOI, became a patient of Pronger-Smith Medical Associates (Pronger-Smith), a medical group under contract with HMOI to provide medical services to HMOI members. A medical history taken in November 1985 revealed that Raglin had diabetes in her family history.

In April 1986 a pregnancy test confirmed that Raglin was pregnant, and Pronger-Smith physicians Alfonso Mejia, Mario Irigoyen and Jose I. Manglano provided Raglin with medical care throughout her pregnancy. Although these doctors were aware of Raglin’s medical history, which presented a strong likelihood that Raglin could develop diabetes during pregnancy, which in turn could lead to a larger than normal birth size baby, tests to monitor Raglin’s blood sugar were not performed.

On November 16, 1986, Raglin delivered a son, Gerik Raglin (Gerik). The delivery was complicated by a condition known as shoulder dystocia. Apparently this means that, because of its size, the baby’s shoulders become lodged in the birth canal and caused delivery to be arrested. In response to this situation, Dr. Mejia applied pressure to Raglin’s abdomen and used forceps to assist the delivery. Because of this forced delivery, Gerik sustained permanent damage to his brachial plexis nerve resulting in paralysis.

On November 15, 1988, a medical malpractice action was filed against all of the above-named defendants for the alleged negligent medical care provided to Raglin during her pregnancy and for the negligent prenatal care and delivery of her son, Gerik. On March 10, 1989, HCSC and HMOI filed a motion to dismiss the complaint with prejudice for failure to state a cause of action against them. This motion was resubmitted on January 5, 1990, as a motion for summary judgment. On February 22, 1990, the trial court granted HCSC and HMOI summary judgment in their favor. Plaintiffs now appeal from that order.

The only issue before this court is whether the trial court erred by granting HCSC and HMOI summary judgment in their favor. Summary judgment is a drastic measure which should only be taken when the pleadings, depositions, admissions and affidavits on file show that there is no genuine issue of material fact and plaintiffs are entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1005(c).) A triable issue exists where there is a dispute as to material facts or where, although the facts are not in dispute, reasonable minds might differ in drawing inferences from those facts. Greene v. Rogers (1986), 147 Ill. App. 3d 1009, 498 N.E.2d 867.

On appeal plaintiffs contend that summary judgment was improperly granted because a material issue of fact exists on the question of whether a principal-agency relationship, either actual or apparent, exists between HMOI and the doctors who deliver medical care to HMOI members. Defendants, however, contend that the trial court ruled properly, finding that no agency relationship exists, as a matter of law, so that they were entitled to judgment in their favor. For reasons that follow, we affirm the judgment of the trial court.

Initially we note that plaintiffs devote much of their argument in their appellate brief to the issue of whether HMOI is a “provider” of health care within the meaning of the Health Maintenance Organization Act (H M O Act) (Ill. Rev. Stat. 1989, ch. lll1^, par. 1402(12)). The thrust of their argument seems to be that if HMOs may be deemed “providers” of health care, then they are not immune from liability for malpractice. However, we believe this argument is misdirected since there appears to be no question that HMOs are not immune from liability. (See Moshe v. Anchor Organization for Health Maintenance (1990), 199 Ill. App. 3d 585, 557 N.E.2d 451; American National Bank & Trust Co. v. Anchor Organization for Health Maintenance (1991), 210 Ill. App. 3d 418, 569 N.E.2d 128.) Nor do defendants here contend that they are immune from the potential of malpractice liability. However, a lack of immunity from prosecution for malpractice does not mean a fortiori that HMOs may be held strictly liable for any injury that might occur to one of their medical care plan subscribers during the course of medical treatment. Some recognized legal theory must be the basis for holding an HMO liable for medical malpractice.

A review of case law reveals that there have been few malpractice actions wherein HMOs have been named as defendants. However, we are unaware of any case in which an HMO has actually been held liable for medical malpractice. Nevertheless, it has been observed that a potential exists for HMOs to be held liable for medical malpractice based on one or more of several tort theories: (1) vicarious liability on the basis of respondeat superior or ostensible agency; (2) corporate negligence based upon negligent selection and negligent control of the physician; and (3) corporate negligence based upon the corporation’s independent acts of negligence, e.g., in the management of utilization control systems. Contract law might also be utilized to hold HMOs liable for malpractice based on breach of contract or breach of warranty. See Oakley and Kelley, H M O Liability for Malpractice of Member Physicians: The Case of IPA Model H M Os, 23 Tort & Ins. L.J. 624, 626 (1988).

In the present case, plaintiffs have not alleged any negligent acts on the part of the HMO itself nor have they alleged any breach of contract. Therefore, the only manner in which HMOI might be held liable for medical malpractice in this case is if it could be found vicariously liable for the negligent acts of a servant or agent, on the basis of respondeat superior or ostensible agency. Therefore, the real issue is whether, under the facts in this case, there exists any basis upon which to hold HMOI, and thus its parent corporation HCSC, vicariously liable for the negligence of the doctors who were under contract with HMOI to deliver health care services to HMOI members. This issue turns on the question of whether plaintiffs were able to show the necessary nexus between HMOI and the doctors charged with negligence.

In order to establish liability under the doctrine of respondeat superior, one must show that a master-servant relationship existed between the parties and that the allegedly negligent activity was within the scope of employment. (Greene v. Rogers (1986), 147 Ill. App. 3d 1009, 498 N.E.2d 867.) In this case there seems to be no question that HMOI is an IPA model health maintenance organization and, therefore, does not directly employ its own physicians. Instead, HMOI contracts with independent medical groups, who employ private physicians who maintain their own offices. Consequently, no direct master-servant relationship exists between HMOI and the physicians. For this reason the medical groups, and thus the physicians who work within the medical group, may be considered independent contractors with respect to HMOI and the doctrine of respondeat superior would normally not apply.

However, we must consider whether there is a factual issue on the question of whether an agency relationship may be inferred, despite the legal relationship that exists between HMOI and the physicians. There are two avenues by which one may attempt to create a fact question on the issue of the liability of HMOI: (1) by a showing of implied authority, i.e., that the facts and circumstances indicate that HMOI actually exerted sufficient control over the physicians to negate the independent contractor status, at least with respect to third parties (see Johnson v. Sumner (1987), 160 Ill. App. 3d 173, 513 N.E.2d 149; Mateyka v. Schroeder (1987), 152 Ill. App. 3d 854, 504 N.E.2d 1289 (implied authority is actual authority circumstantially proved by facts and circumstances)), or (2) by a showing of apparent authority, i.e., that HMOI, by its actions or statements, led a third party, who may have been unaware of the independent contractor relationship, to believe that the physicians were controlled by HMOI. See Weil, Frei burg & Thomas, P.C. v. Sara Lee Corp. (1991), 218 Ill. App. 3d 383, 577 N.E.2d 1344.

The practice of extending liability beyond the normally limited legal relationship has already been legitimized in the hospital context. Courts of law have opened the possibility that hospitals might incur liability for the negligence of physicians, despite the fact that an independent contractor relationship may have existed between the hospital and the physician. (See Uhr v. Lutheran General Hospital (1992), 226 Ill. App. 3d 236, 589 N.E.2d 723; Sztorc v. Northwest Hospital (1986), 146 Ill. App. 3d 275, 496 N.E.2d 1200; Gasbarra v. St. James Hospital (1979), 85 Ill. App. 3d 32, 406 N.E.2d 544.) In these cases, however, the courts have followed well-settled principals of law and held that a question of law existed as to the issue of apparent or ostensible authority only upon a showing of equitable estoppel. Consequently, in such cases plaintiffs have the burden of showing detrimental reliance.

Although the apparent authority theory has been utilized to hold a hospital vicariously liable for the actions of a doctor, the theory of apparent authority has not yet been utilized in Illinois in the context of an HMO. It has, however, been employed in other jurisdictions. See Kohn v. Delaware Valley H M O, Inc. (E.D. Pa. 1991), No. 91 — 2745 (filed December 20, 1991); Independence H M O, Inc. v. Smith (E.D. Pa. 1990), 733 F. Supp. 983 (claim that HMO was vicariously liable for the negligence of the independent contractor physicians who serviced the HMO based upon an ostensible agency theory not preempted by the Employee Retirement Income Security Act (29 U.S.C. §1001 et seq. (1988)) (ERISA)); Chase v. Independent Practice Association, Inc. (1991), 31 Mass. App. 661, 583 N.E.2d 251; Boyd v. Albert Einstein Medical Center (1988), 377 Pa. Super. 609, 547 A. 2d 1229.

We should also note that, in Boyd, the reviewing court reversed a grant of summary judgment to the HMO, finding that a question of material fact existed as to whether the participating physicians were ostensible agents of the HMO. The Boyd court found an exception to the rule that an employer is not liable for the torts of an independent contractor, based upon section 429 of the Restatement (Second) of Torts (1965), which states:

“One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.”

In reaching its decision, however, the Boyd court relied, to a large extent, on the fact that the HMO, Health Maintenance Organization of Pennsylvania (HMO-PA), although an IPA model HMO, advertised itself in a brochure as a “total care program which not only insures its subscribers, but provides medical care, guarantees the quality of the care and controls the costs of health care services.” The brochure also indicated that HMO-PA was “an entire health care system”; “provides the physicians, hospitals and other health care professionals needed to maintain good health” and “assumes the responsibility for quality and accessibility.” The court seemed to find that the advertising constituted a “holding out,” or a representation from which one could reasonably conclude that the physicians within the HMO’s health care delivery system were its employees.

In Chase, however, the reviewing court affirmed the trial court’s grant of summary judgment to the HMO. Based upon the facts in Chase, which are surprisingly similar to the facts in the case at bar, the court found that the affidavits and contract documents did not demonstrate, as a matter of law, that the HMO controlled or retained the right to control the professional activities of the alleged negligent doctor. Also, the court held that there was no showing of detrimental reliance, i.e., the plaintiff failed to show that she reasonably relied upon representations made by the HMO which caused her to conclude that either the doctor or the medical group were the HMO’s agents or employees. Therefore, the ostensible agency theory was inapplicable.

We find that the reasoning and conclusions reached by the court in Chase are equally applicable to the case at bar. In this case plaintiffs attempted to show that HMOI controlled, or retained the right to control, the medical groups and physicians with whom it contracted by virtue of the quality assessment and utilization review guidelines it promulgated in accordance with the HMO Act. (See Ill. Rev. Stat. 1989, ch. IllVz, par. 1403(cX16).) However, it is clear to this court that the Quality Assurance Compliance Program, with which medical groups and physicians contracting with HMOI must abide, is not the type of control from which agency arises.

The quality assessment program is really just a manner of tracking the independent medical groups to determine if they are complying with the rules and regulations of HMOI. Essentially, the independent medical groups and their physicians are required to provide documentation that they are following procedures designed to assure quality health care. HMOI, however, does not review the contents of the documentation to assess the accuracy of the medical diagnoses or opinions, nor does it assume any responsibility for determining the correctness or appropriateness of the physician’s medical services delivered. HMOI plays only an administrative role, overseeing the process of health care delivery. Therefore, this court finds that, as a matter of law, this does not constitute the type of control necessary to impute an agency relationship between HMOI and the physicians.

Nor do we see any basis for finding that HMOI advertised or held itself out as exerting control over its physicians so that one might reasonably conclude that the physicians were the employees of HMOI. In fact, the subscriber certificate issued to Raglin upon joining HMOI specifically informed her that HMOI did not directly furnish medical care and could not make medical judgments.

Furthermore, there is absolutely no evidence that Raglin detrimentally relied upon HMOI for the quality of the care she received from the physicians. Raglin’s affidavit stated that it was her belief that the medical care provided to her “was given as a result of, and because of, [her] membership in [HMOI].” While this is undoubtedly the case, it does not indicate detrimental reliance.

Furthermore, even if we were to assume that Raglin presented evidence that she relied on HMOI, Raglin provided no rational basis for doing so. Raglin pointed to no representations made by HMOI that led her to such reliance. Although it is true that HMOI provided Raglin with a limited list of medical groups and/or physicians who were under contract with HMOI to provide medical services to HMOI subscribers and Raglin was required to select a physician from this list, this is the manner in which all HMOs operate. Therefore, this should not be the dispositive factor upon which the question of apparent agency turns.

Because we find that the trial court properly determined that no issue of material fact exists as to the question of an agency relationship between HMOI and the defendant-doctors, we affirm the grant of summary judgment.

Affirmed.

LORENZ and GORDON, JJ., concur.

      According to the record, HCSC is a mutual legal reserve corporation doing business as Blue Cross and Blue Shield of Illinois (BC/BSI). BC/BSI is a member of the Blue Cross and Blue Shield Association, which is the trade mark corporation that administers the licensing of the “Blue Cross” and “Blue Shield” registered trademarks. HMOI is a health maintenance organization which is a wholly owned subsidiary of HCSC. HMOI is what is known in the industry as an “Independent Practice Association” or “IPA model” health maintenance organization, as opposed to a “staff model” health maintenance organization. This means that HMOI is an entity which arranges and pays for health care for its members by contracting with independent medical groups or physicians, rather than providing health care through its own salaried physicians. There is no entity known as “Health Assurance Plan.” It is the trade name for a health care plan offered by HMOI.

      It should be noted that plaintiffs filed a notice of appeal on March 19, 1990, which was later dismissed by this court because the order appealed from was not final and the court lacked jurisdiction. (See Raglin v. H M O Illinois, Inc. (1991), 217 Ill. App. 3d 1076, 578 N.E.2d 108.) Subsequently, plaintiffs petitioned the trial court for a written finding that there was no just reason to delay enforcement or appeal of the February 22, 1990, order granting HCSC and HMOI summary judgment. The petition was granted on July 25, 1991, and Rule 304(a) language was added to the summary judgment order. A new notice of appeal was filed on August 21, 1991, and it is from this appeal that the court now proceeds.


author: PRESIDING JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES WILSON, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—1926
    Opinion filed June 5,1992.
    Rita A. Fry, Public Defender, of Chicago (Renee C. Graham, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Donald Lyman, and Joelle Marasco, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The defendant, James Wilson, was indicted for attempted murder, aggravated battery, armed violence, attempted criminal sexual assault, attempted aggravated criminal sexual assault, unlawful restraint and aggravated unlawful restraint. The defendant was tried by a jury.

After the State rested, the trial judge granted the defendant’s motion for a directed verdict on the charge of the attempted criminal sexual assault of Dawn Franzen. The State dismissed some aggravated battery counts, some armed violence counts and both unlawful restraint counts. The jury found the defendant guilty of one count of armed violence and one count of aggravated battery committed against Jesse Garza; not guilty of attempted murder, not guilty of one count of aggravated battery and not guilty of one count of armed violence. The judge granted the defendant’s motion for a new trial on the charge of armed violence, and the State later dismissed that charge. The judge sentenced the defendant to five years in the Illinois Department of Corrections for aggravated battery. The defendant’s sole argument is that the jury was not properly instructed that the State had the burden of proving that the defendant’s use of force was not justified.

Dawn Franzen and her boyfriend, Jesse Garza, decided to spend the evening of Friday October 14, 1988, together because Garza was scheduled to leave two days later for his naval assignment in New Jersey. On that night, Franzen, then 17 years old, picked up Garza at his home in Itasca, Illinois, at 9:30 p.m. They went to downtown Chicago and drove around for awhile. They stopped to eat at a hot dog stand and then went to a liquor store where Franzen purchased a bottle of wine for herself and beer for Garza.

They drove to the North Avenue Beach, arriving there sometime between 11 p.m and midnight. They sat in the car talking and drinking. They got out of the car, sat under a tree, and continued to drink and talk. The two then began to argue over Garza’s plans for the weekend; Franzen became very agitated when Garza told her he was going to spend Saturday with his friends, and not with her. Franzen began yelling and started walking back to the car, saying she wanted to leave. Garza then took Franzen’s car keys because she was too drunk to drive. They continued to argue and some time around 2:30 a.m., Franzen “stormed off” for a nearby bathroom located in the North Avenue Beach House. She did not tell Garza where she was going.

Franzen testified that after she reached the beach house a man, later identified as the defendant James Wilson, approached her and said something. She ignored him and began to walk away. As she attempted to walk away, the defendant grabbed her arm, turned her around, and then put his hand on her breast. She began screaming, and the defendant placed his hand over her mouth, threatening to kill her if she did not shut up. The defendant hit her in the face, knocking her to the ground. She continued to struggle and screamed for Garza to help her. The defendant then pulled the top of her dress down. Garza arrived and began fighting with the defendant. Franzen then ran to Lake Shore Drive and flagged down a patrol car; she told the officers that a man had tried to rape her. The police put her in another police vehicle and took her to Lutheran General Hospital.

Garza testified that after Franzen left him, two couples in a limousine drove up and asked if everything was alright. He told them that they were just having a “little domestic argument” and they drove off. He had begun looking for Franzen when he heard her screaming. He ran toward the beach house; behind the beach house, he saw Franzen lying on the ground with the top of her dress down and some blood on her mouth.

A man, later identified by Garza as the defendant, jumped out from behind some nearby bushes and hit him in the side. Garza fell to the ground and was struck by the defendant several more times as he was trying to get up. He hit the defendant and backed away into a lighted parking lot; the defendant fled south along the beach. The police arrived and when Garza got into the car, he noticed he was bleeding from his chest, short of breath and had pain in his left side. The police took him a block away where he identified the defendant. Garza was then transported to the emergency room at Lutheran General Hospital for treatment.

Police officer Dave Adkins testified that he responded to a call of an incident at the North Avenue Beach. He was given a description of a man to look for. He saw the man fitting the description, the defendant, leaving a tunnel under Lake Shore Drive. He arrested the defendant, searched him and found a screwdriver with blood on it. Another police car brought Garza to the scene, and Garza identified the defendant as the man who had attacked him.

Dr. Ramesh Rao testified that he treated Garza, who had suffered a collapsed lung which resulted from a puncture wound to his side. Garza also had a wound to his left shoulder. In Dr. Rao’s opinion, the screwdriver recovered from the defendant could have caused the puncture wound.

Dr. Erica Heit testified that she treated Franzen at the hospital. Franzen had a broken tooth, a swollen lower lip, scratched knees, a superficial cut on her chin and a scrape on her left forearm. It was Dr. Heit’s opinion that it was possible that the injuries resulted from a fall or from being punched in the face. Heit also ordered that a blood-alcohol test be given to Franzen; the test, taken approximately three hours after the incident, showed that Franzen had a blood-alcohol level of .252.

The defendant testified that on October 14, 1988, he was homeless and living on the North Avenue Beach. On that day, he worked at the Chicago Stadium until about 9:30 p.m. and then went to the Loop to get something to eat. He proceeded to the North Avenue Beach and sat on a bench where he noticed a couple, Franzen and Garza, arguing loudly in their car. The couple got out of their car and sat under a tree, continuing to argue. After briefly returning to the car, the woman began to walk north towards the telephones at the beach house. He saw the man talk to some people in a black limousine which pulled up after the woman left. After the limousine left, Garza went after Franzen, who was staggering and “crying and hollering.”

The defendant then testified that he went to the beach house and sat on a guard rail. While sitting on the guard rail, he saw Franzen fall on the beach house’s concrete porch. She got up, but then slid down the wall into a squatting position with her head buried in her hands. The defendant offered to help her, but Franzen just kept screaming.

The defendant testified that he was attempting to leave when he saw Garza approaching. When Garza and the defendant met about 15 feet from Franzen, Garza asked him what he had done to his girl friend. The defendant did not respond, and Garza punched him in the mouth. The defendant asked Garza why he punched him, and Garza responded that the defendant had done something to his girl. Garza then kicked the defendant in the chest. The defendant fell against the wall, asked Garza not to hit him again and pulled out the screwdriver he kept for protection. Garza then struck the defendant again, and the defendant responded by swinging the screwdriver wildly. After the defendant struck him with the screwdriver, Garza stopped hitting him. The defendant suffered a swollen lip as the result of the altercation.

The defendant testified that both men stopped fighting and returned to Franzen. Garza attempted to help her up, but she refused his help, got up and headed north. Garza followed her, and the defendant began walking south. The police picked the defendant up a short time thereafter.

The defendant told the police that he lived at 943% West 79th Street. He said he lied to the police because he was afraid to tell them he did not have a home. He told an assistant State’s Attorney that, instead of returning to his home at 79th Street, he decided to go see a former girl friend, who was a prostitute. He could not give the police her name; he had not seen her in three years. He admitted that he lied to the assistant State’s Attorney when he told her about looking for his girl friend. He told the police he had not stabbed anyone. He did not tell the police that Franzen had fallen and hurt herself.

In rebuttal, the State introduced four convictions of the defendant: In September 1983, he was convicted of retail theft; in April 1984, he was convicted of theft; in September 1984, he was convicted of burglary; and in May 1987, he was convicted of burglary.

After oral argument, the judge instructed the jury with the definitional and issue instructions for the charge of aggravated battery causing great bodily harm (Illinois Pattern Jury Instructions, Criminal, No. 11.08 (2d ed. 1981) (hereinafter IPI Criminal 2d)). The judge also gave the jury the general instructions on the State’s burden of proof and presumption of innocence (IPI Criminal 2d No. 2.03) and the definitional instruction on legal justification, specifically, self-defense. IPI Criminal 2d No. 24 — 25.06.

The judge did not give IPI Criminal 2d No. 24 — 25.06A, which instructs the jury that the State has the burden of proving beyond a reasonable doubt that the defendant was not justified in the use of force that he used. It is that failure to give IPI Criminal 2d No. 24— 25.06A which the defendant contends is reversible error. The State maintains that the defendant has waived the argument by failing to submit the instruction or raise the issue in a post-trial motion. The defendant argues that the waiver doctrine will not be applied where “grave errors” occur or in cases where fundamental fairness requires that the jury be properly instructed because the case is close factually.

The principal case relied on by the State is People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248; and the principal case relied upon by the defense is People v. Berry (1984), 99 Ill. 2d 499, 460 N.E.2d 742. Both sides have referred us to several other cases, but we need not discuss any of the cases cited by the parties dealing with waiver and grave error, because we conclude that the jury was, in fact, properly instructed.

The heart of the defendant’s argument is his contention that “[wjhile the jury was given the definitional instruction on self-defense, it was never informed that it was to consider that instruction with respect to the crime of aggravated battery.” The record refutes that argument. As noted, the jury was instructed on legal justification:

“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.” (IPI Criminal 2d No. 24 — 25.06.)

Additionally, the jury was instructed on aggravated battery:

“A person commits the offense of battery when he intentionally without legal justification and by any means causes bodily harm to another person.” IPI Criminal 2d No. 11.05.
“To sustain the charge of aggravated battery causing great bodily harm, the State must prove the following proposition:
That the defendant intentionally without legal justification caused great bodily harm to Jesse Garza.
If you find from your consideration of all the evidence that this proposition has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that this proposition has not been proved beyond a reasonable doubt, you should find the defendant not guilty.” (Emphasis added.) See IPI Criminal 2d No. 11.08.

The jury was also instructed that it must follow all instructions and that it must not single out certain instructions and disregard others. Reading the instructions together leaves no other conclusion but that the jury was instructed that the State had the burden of proving beyond a reasonable doubt that the defendant was not justified in the use of force that he used. There is no basis for the defendant’s argument that the jury was confused and that it would consider the self-defense instruction only insofar as it pertained to the attempted murder charge.

The case of People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, is instructive. Two appeals were involved. Steven Reddick and Gregory Lowe were convicted of murder in separate jurisdictions. Lowe was also convicted of attempted murder and aggravated battery. The supreme court reversed both murder convictions for failure to instruct the jury properly on the burden of proof when a defendant raises a question of self-defense. The court then considered whether the jury had been properly instructed on the burden of proof on the separate charges against Lowe of attempted murder and aggravated battery. The supreme court held that the jury had not been properly instructed and made this observation pertinent here:

“In Huckstead [(People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248)] the court stated, ‘the instructions, in combination with the closing arguments by counsel for both sides, apprised the jury that the State had the burden of proving that defendant was not justified in the force he used.’ (91 Ill. 2d at 545.) In the instant case, however, the jury was not so apprised. Although the jury was instructed that the prosecution had the burden of proving every element of the crimes charged, a lack of justification was not listed as an element of any of the alleged offenses.” (Emphasis added.) 123 Ill. 2d at 202.

In contradistinction to Reddick, the jury in the case before us was specifically instructed that a lack of justification was one of the elements of the offense of aggravated battery that the State was required to prove. We point out also that the prosecutor in argument told the jury that the State had to prove that the defendant knowingly without legal justification caused great bodily harm to Jesse Garza. Consequently, we find that no error occurred in the giving of instructions.

The judgment of the circuit court is affirmed.

Judgment affirmed.

LaPORTA and RAKOWSKI, JJ., concur.


author: JUSTICE RAKOWSKI

text:
    JOYCE MANIS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Exclusively Expo, Inc., Appellee).
    First District (Industrial Commission Division)
    No. 1—90—2206WC
    Opinion filed June 5,1992.

      Kane, Doy & Harrington, Ltd., of Chicago (Gregory E. Ahern, of counsel), for appellant.
    Potter & Schaffner, of Chicago, for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

The employer, Exclusively Expo, Inc., appeals the order of the circuit court which set aside the decision of the Industrial Commission (Commission) and reinstated the award of the arbitrator. The circuit court further ordered that a determination of whether claimant Joyce Manis should benefit from vocational rehabilitation be made by the Commission upon remand. We reverse.

The pertinent facts are as follows. Claimant, 48, began working for the employer in about August of 1987. Her duties consisted of getting on her knees and pulling vinyl from a large roll of vinyl, which weighed about 100 pounds and was about 32 inches wide. After claimant pulled the vinyl from the roll, she placed the vinyl upon a machine. On February 8, 1988, claimant experienced sudden pain in her shoulder area while working. Claimant underwent a course of treatment which culminated in a cervical fusion. On August 16, 1988, claimant returned to work with restrictions from her physician, Dr. Lim, that included a four-hour work day, lifting no more than 10 pounds, and no bending, crawling, climbing or rapid movement. Upon her return to work, she experienced pain associated with movement of her arm and head.

Claimant was again authorized by Dr. Lim to return to work on September 12, 1988, although this authorization did not include any restrictions. Claimant, however, experienced a substantial increase in pain upon returning to work and sought further treatment from her chiropractic physician, Dr. Tenny. Dr. Tenny recommended that claimant change jobs. On November 7, 1988, Dr. Lim advised claimant to seek a job which did not require constant motion of the arm, shoulder and neck. Dr. Triester, an orthopedic surgeon who examined claimant on April 4, 1989, found that she could not do any type of work which required repetitive, left upper extremity utilization, and recommended vocational rehabilitation.

Claimant’s previous work experience included jobs as a machine operator, a hairdresser, a waitress and as a fast-food cook. Claimant had an llth-grade education and had completed a course in cosmetology. Subsequent to Dr. Tenny’s recommendation that she change jobs, claimant did not seek other employment.

The arbitrator rendered his decision on June 24, 1989, awarding claimant temporary total disability benefits for a period of 663/t weeks and medical expenses totalling $21,579.05. The decision of the arbitrator does not reflect a finding that claimant was in need of vocational rehabilitation. On November 1, 1989, the Industrial Commission rendered its decision, which reduced the period of benefits to 334/? weeks. On June 6, 1990, the circuit court entered an order which reversed the Commission, reinstating the period of benefits the arbitrator had awarded, and further ordering that claimant’s need for vocational rehabilitation be evaluated.

In the recent case of Hayden v. Industrial Comm’n (1991), 214 Ill. App. 3d 749, 754, 574 N.E.2d 99, the court explained:

“An employee is totally disabled when he cannot perform any service except those for which no reasonable stable labor market exists. [Citations.] Section 8(b) of the Act provides that ‘weekly compensation *** shall be paid *** as long as the total temporary incapacity lasts.’ [Citation.] An employee is temporarily totally incapacitated from the time that the injury incapacitates him for work until such time as he is as far recovered or restored as the permanent character of the injury will permit. [Citations.] Thus, once an injured employee’s physical condition stabilizes, he is no longer eligible for temporary total disability benefits.”

Whether a claimant is entitled to compensation for temporary total disability generally and for how long she is entitled to such benefits are questions of fact, and the reviewing court will only disturb these findings of the Commission if contrary to the manifest weight of the evidence. (Phillips Getschow Co. v. Industrial Comm’n (1988), 172 Ill. App. 3d 769, 527 N.E.2d 114; Archer Daniels Midland Co. v. Industrial Comm’n (1990), 138 Ill. 2d 107, 118-19, 561 N.E.2d 623.) While in the case sub judice we hold that the Commission’s determination of the duration of claimant’s temporary total disability was not against the manifest weight of the evidence, we do so on somewhat different grounds than the parties argue, and on somewhat different grounds than the Commission appears to have based its determination.

Both claimant and the employer focus on the issue of whether claimant was able to work in another capacity during the time of her treatment after her injury, the employer emphasizing, as the Commission appeared to in its decision, that claimant did not appear to seek alternative employment after it was suggested that she needed to do so by her physicians, and claimant emphasizing that she would not have been able to find employment within her restrictions based on her education and work experience. What neither party focuses on, but what we feel to be dispositive of the issue, is the fact that claimant’s condition, which the employer admits was temporarily disabling until November 7, 1988, the last day which the Commission determined claimant to be disabled, had stabilized at that point.

In Archer Daniels Midland, our supreme court restated the settled law that “an employee is temporarily totally incapacitated from the time an injury incapacitates him for work until such time as he is as far recovered or restored as the permanent character of his injury will permit.” (138 Ill. 2d at 118.) The court further observed that “[o]nce an injured employee’s physical condition stabilizes, he is no longer eligible for [temporary total disability] benefits, although he may be entitled to [permanent disability compensation under the Act].” (138 Ill. 2d at 118.) In fact, the Illinois Workers’ Compensation Act provides for awards of temporary total disability in cases where “the disabling condition is temporary and has not reached a permanent condition.” Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b).

On November 7, 1988, Dr. Lim reviewed claimant’s injury and wrote “[b]ecause of her neck problem, it is not advisable for her to continue in her present occupation. *** I suggest that she change her job to a less physically demanding job. She should have a job that does not involve constant motion of the arm, shoulder and neck.” Dr. Triester, writing April 4, 1989, stated “I believe that the nerve irritation that this patient now experiences [based upon both an objective finding and a subjective basis] all represent permanent changes and I do not believe that this lady will be able to do any type of work which requires repetitive left upper extremity utilization.” The employer’s physician, Dr. Cooper, wrote with respect to claimant on April 14, 1989: “This patient has a permanent partial impairment of the left upper extremity[.]”

The employer did not dispute below that claimant was disabled until she initially returned to work without restrictions. On appeal, the employer does not argue that claimant was not disabled from September 23, 1988, to November 7, 1988. While Dr. Dim’s statement of November 7, 1988, does not expressly state whether claimant’s condition was permanent, or had stabilized (although by suggesting a change of occupation, it could be inferred that Dim felt the condition was permanent), it is clear that Drs. Triester and Cooper referred to the same condition which existed on November 7, 1988. Given that on that date claimant’s disability had become permanent, under the above authority it was at that time no longer temporary. We therefore hold that the Commission’s decision as to the duration of claimant’s temporary total disability was not against the manifest weight of the evidence. In so holding, we note that whether claimant was entitled to either permanent partial or permanent total disability benefits after November 7, 1988, was not addressed by the Commission, nor is it addressed by this court.

Finally, we address whether it was error for the trial court to order the action remanded to the Commission to determine whether claimant was entitled to vocational rehabilitation.

In Howlett’s Tree Service v. Industrial Comm’n (1987), 160 Ill. App. 3d 190, 513 N.E.2d 82, the court discussed a claimant’s entitlement to vocational rehabilitation under the Act (see Ill. Rev. Stat. 1987, ch. 48, par. 138.8(b)). The court stated:

“Under section 8(b) of the Act [citation], only necessary vocational rehabilitation expenses are to be awarded. A claimant is generally entitled to rehabilitation expenses if he sustained an injury which caused a reduction in earning power and there is evidence rehabilitation will increase his earning capacity. [Citation.]” (Howlett’s, 160 Ill. App. 3d at 193.)

The determination of whether vocational rehabilitation is appropriate in a given case involves many factors. See National Tea Co. v. Industrial Comm’n (1983), 97 Ill. 2d 424, 454 N.E.2d 672.

In the case sub judice, the trial court remanded the matter of claimant’s entitlement to these expenses on the belief, as stated in the trial court’s decision, that the Arbitrator had determined claimant was entitled to the expenses. The record reveals, however, that the Arbitrator’s decision was silent as to the issue, and there is no indication in the record that claimant actually argued the matter to the Commission. Given claimant’s apparent failure to properly raise the matter below, we hold that it was error for the trial court to remand a matter to the Commission which was never raised before the Commission at the appropriate time.

Accordingly, the judgment of the circuit court is reversed.

Reversed.

McCULLOUGH, RJ., and WOODWARD, H. LEWIS, and STOUDER, JJ., concur.


author: JUSTICE DOYLE

text:
    AMERICAN XYROFIN, INC., et al., Plaintiffs-Appellants, v. ALLISCHALMERS CORPORATION, Defendant-Appellee and Separate Appellee (A-C Compressor Corporation, Defendant-Appellee and Separate Appellant).
    Second District
    No. 2—91—0875
    Opinion filed June 24,1992.

      James T. Ferrini, Susan Condon, Ronald 0. Armbrust, and Kevin J. Young, all of Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago, for appellants.
    Roberta L. Holzwarth, of Holmstrom & Kennedy, of Rockford, and Francis W. Deisinger, John R. Stoffer, and Katherine McConahay Nealon, all of Reinhart, Boerner, Van Deuren & Norris, of Milwaukee, Wisconsin, for appellee A-C Compressor Corporation.
    Robert J. Noe, of Bozeman, Neighbour, Patton & Noe, of Moline, for appellee Allis-Chalmers Corporation.
   JUSTICE DOYLE

delivered the opinion of the court:

Plaintiffs, American Xyrofin, Inc., and Finn-Cal Sweetener Company, appeal the trial court’s order granting summary judgment in favor of defendants, Allis-Chalmers (Chalmers) and A-C Compressor Corporation (A-C), on the issue of recovery in tort for economic losses. A-C separately appeals the trial court’s order in favor of Chalmers on their cross-motions for summary judgment on the issue of successor liability under the terms of an asset purchase agreement.

The issues presented for review are: (1) whether the harm resulting from the failure of a centrifugal compressor, including damage to the compressor itself and lost profits, is wholly compensable in tort; and (2) whether the trial court erred when it interpreted the asset purchase agreement between Chalmers and A-C so as to fully allocate the responsibility for a meritorious claim by plaintiffs to A-C.

Plaintiffs leased from Hoffman La-Roche (plaintiffs’ parent company) a commercial building and centrifugal compressor unit located in Thomson, Illinois. The centrifugal compressor was manufactured by the compressor division of Chalmers and was utilized in conjunction with plaintiffs’ grain processing operations. Prior to the initiation of this lawsuit, Chalmers, in February 1985, sold its compressor division to A-C.

Dan Odren, a former field service technician and design engineer for Chalmers, testified at his evidence deposition that in June 1981 Chalmers advised plaintiffs about design problems with its D48 compressor which could lead to a premature compressor blade failure. Chalmers advised plaintiffs of the potential for increased vibration levels and recommended that the compressor unit be shut down in order to effectuate an immediate change out of the affected rotor components. Odren further stated that he and other Chalmers officials met with officials from Hoffman La-Roche to discuss the vibration problems. At their meeting, the Hoffman La-Roche officials became very upset about a possible plant shutdown because of compressor problems. Because of high production demands, plaintiffs chose not to remove the unit from service, opting instead for a change-out date sometime in the fall of 1981. Plaintiffs also requested additional advice from Chalmers on how to continue operation of the unit in such a manner as to minimize the risk of failure. Chalmers provided technical advice consisting of suggested operating procedures and vibration monitor settings.

In October 1981, plaintiffs advised Chalmers that they wished to further delay the change out of the affected compressor components until spring 1982. On or about November 1, 1981, plaintiffs advised Chalmers that the vibration level in the compressor unit had increased. On November 27, 1981, the compressor unit “went down” because of a rotor blade failure, damaging the compressor unit itself and the surrounding structure that housed the compressor unit. As a result of the failure, plaintiffs were also forced to close their plant while repairs to the unit were effectuated.

Four and one-half years after the compressor failure, on May 30, 1986, plaintiffs filed their complaint against Chalmers and A-C for damages in the amount of $1,061,489.95. Plaintiffs alleged that defendants negligently instructed them as to the continued safe operation of a centrifugal compressor that was in a defective condition and, as a result, the compressor failed resulting in severe damage to the compressor unit and the surrounding premises and lost business, past and future. Defendants moved to strike the portion of plaintiffs’ complaint which sought to recover for economic losses. The trial court granted defendants’ motion and struck the portion of plaintiffs’ complaint which sought recovery of repair costs for the compressor unit and damages for lost business, past and future.

In its memorandum opinion dated June 3, 1987, the trial court was puzzled by the failure of plaintiffs to allege the source of defendants’ duty to render nonnegligent advice. The court expressed its uncertainty as to whether the duty arose from the sale of the product or whether it arose from a service agreement between the parties. The trial court stated that in order for plaintiffs to avoid the application of the doctrine of Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, they would have to characterize the defendants as being in the business of supplying information. Plaintiffs, the court stated, failed to allege the existence of a legal duty based upon the defendants acting as suppliers of information, and, additionally, the court opined that this characterization would most likely not apply to plaintiffs. The court continued that, under the allegations of the complaint, “tp]laintiffs can recover, if at all, damage to the [plaintiffs’ premises alone if they properly allege a sudden and violent occurrence. Even with an allegation of [a] sudden and violent occurrence, damage to the compressor itself and losses to the [p]laintiff arising out of repairs and lost business, past and future, would be considered economic losses under Anderson [Electric, Inc. v. Ledbetter Erection Corp. (1986), 115 Ill. 2d 146] and East River Steamship [Corp. v. Transamerica Delaval, Inc. (1986), 476 U.S. 858, 90 L. Ed. 2d 865, 106 S. Ct. 2295].”

On July 10, 1987, plaintiffs filed an amended complaint which was withdrawn and refiled on April 10, 1989. Plaintiffs alleged, as a result of defendants’ negligent advice as to the continued operation and use of the compressor, a sudden and calamitous failure causing severe damage to the unit itself, damage to the surrounding premises, and losses arising from repairs and lost business. On May 22, 1989, the trial court again struck the portion of plaintiffs’ amended complaint seeking recovery for damages to the unit itself and lost business.

On May 26, 1989, Chalmers filed its answer to plaintiffs’ amended complaint and a “third-party complaint” against codefendant A-C alleging that the asset purchase agreement entered into between Chalmers and A-C allocated the responsibility for any third-party claims to A-C. A-C denied the allegations.

On June 19, 1989, plaintiffs filed their second amended complaint. The allegations were substantially the same as in the previous complaint, with the exception that plaintiffs amended their allegations to read that defendants possessed particular expertise and knowledge and that they undertook to advise plaintiffs as to the safe operation of the compressor without damaging the compressor or surrounding property. In addition, defendants failed to properly and fully inform them of the potential harm by continued use and how to safely operate the compressor in light of increased vibration levels when defendants knew or should have known of the dangers caused by excessive vibrations. Plaintiffs further alleged that as a result of defendants’ instruction and advice there was a sudden and calamitous failure of the compressor causing damage to the unit itself, surrounding property and losses arising out of repairs and lost business.

Approximately one year later, in order to posture the case for review, the parties entered into a settlement agreement in the amount of $9,000 for the surrounding property damage. The trial court dismissed plaintiffs’ claim for damage to surrounding property without prejudice to plaintiffs’ right to argue the existence of recoverable damages for the compressor and lost profits. Subsequent to that order and after the dismissal of their third amended complaint on technical grounds, plaintiffs filed their fourth amended complaint, which was similar in substance to their second amended complaint with the exception that the claim for damages to the surrounding property was deleted.

The fourth amended complaint alleged, in part:

“8. As a direct and proximate result of the aforesaid acts and omissions of ALLIS-CHALMERS in instructing and advising the Plaintiffs regarding the operation and use of the aforesaid Centrifugal Compressor, the compressor failed in a sudden and calamitous manner on November 27, 1981, causing damage to property other than the compressor. As part of this failure, a vane, or piece, of the rotating impeller encased in the compressor, broke loose and shot through the steel casing of the compressor and damaged equipment adjacent to the compressor including a fan and part of the building in which the compressor was housed. This failure occurred without warning to Plaintiffs and despite the fact that the Plaintiffs had at all times operated the compressor according to the parameters set by ALLIS-CHALMERS. As a result of these damages, Plaintiffs were forced to shut down operations.
9. As a further direct and proximate result of the aforesaid acts and omissions of ALLIS-CHALMERS and the resulting sudden and calamitous failure of the compressor, the Plaintiffs suffered damages to the compressor itself and component parts as well as lost profits, past and future.”

Chalmers and A-C filed a joint motion for summary judgment against the plaintiffs and separate cross-motions for summary judgment on the issue of successor liability under the asset purchase agreement. The trial court granted defendants’ joint motion for summary judgment and, in addition, granted the cross-motion in favor of Chalmers.

We first consider the action of the trial court in granting defendants’ joint motion for summary judgment. Although the trial court granted the motion without comment, we must assume from the motion itself, the procedural history of the litigation, and the appellate arguments of the parties that the court determined that, as a matter of law, the type of damages alleged (i.e., repairs to the compressor and resulting business losses) are economic in nature and not compensable in tort.

This interpretation would be consistent with the comments of the trial court in its June 3, 1987, memorandum opinion granting defendants’ motion to strike, wherein it was stated:

“Under the allegations in the Complaint it is the opinion of this Court that the Plaintiffs can recover, if at all, damage to Plaintiffs’ premises alone if they can properly allege a sudden and violent occurrence. Even with an allegation of sudden and violent occurrence, damage to the compressor itself and losses to the Plaintiff arising out of repairs and lost business, past and future, would be considered economic losses under Anderson and East River Steamship.”

Although plaintiffs advance a theory of negligent advice, there has been no argument that recovery of economic damages might be permitted because defendants were engaged in the business of providing the advice which is alleged as the negligent conduct. Instead, in responding to defendants’ joint motion for summary judgment, plaintiffs allege a duty to provide nonnegligent advice based upon sections 311 and 323 of the Restatement (Restatement (Second) of Torts §§311, 323 (1965)). Although the existence of a legally cognizable duty is not raised as an appellate issue, it is important to note that any question of the liability of an entity engaged in the business of providing advice is beyond the scope of this appeal.

Plaintiffs contend that recovery in tort for damages to the compressor unit itself and lost profits is permissible on two separate grounds: (1) that the existence of damage to the surrounding property brings them within what they perceive as an “other property exception” of Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, thereby precluding that case’s application; and (2) that the failure of the compressor was a sudden and calamitous occurrence, thus allowing for recovery in tort. Defendants respond that plaintiffs are merely seeking redress for the disappointed commercial expectations incident to the compressor’s failure and that the essential nature of their claim is for economic losses which are not recoverable in tort.

The rule in Illinois is that recovery for solely economic losses in relation to a product may not be had upon a tort theory of negligence. (Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 439-40; Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 85.) The underlying rationale that has been articulated is that a manufacturer should not be held liable for downstream losses caused by a product failing to meet a subsequent purchaser’s specific business expectations. (Moorman, 91 Ill. 2d at 88.) A manufacturer, in effect, would be exposed to potential liability of unknown and unlimited scope even though there was no damage to persons or property. Moorman, 91 Ill. 2d at 88.

“ ‘Economic loss’ has been defined as ‘damages for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits — without any claim of personal injury or damage to other property ***.’ ” (Moorman, 91 Ill. 2d at 82, quoting Note, Economic Loss in Products Liability Jurisprudence, 66 Colum. L. Rev. 917, 918 (1966).) The determination of economic loss does not, however, turn upon a mechanical application of the definition; rather, it lies in the policy differences between the law of torts and contracts. (Moorman, 91 Ill. 2d at 96 (Simon, J., specially concurring).) The policy underpinning of tort law is to protect persons and property from unreasonable risks of harm, whereas harm that relates to a purchaser’s disappointed expectations that a product is of a particular quality so that it is fit for ordinary use is addressed by contract principles. (Moorman, 91 Ill. 2d at 88.) The key determination, therefore, is whether the type of loss suffered is best resolved by the risk/responsibility allocations of contract/warranty law, or whether the defendants owed a duty to protect persons and property from harm thus invoking the safety/insurance policies of tort law. Anderson Electric, Inc. v. Ledbetter Erection Corp. (1986), 115 Ill. 2d 146, 157 (Simon, J., specially concurring).

To recover in tort, there must be a showing of harm above and beyond disappointed commercial expectations. (A, C & S, 131 Ill. 2d at 441.) The demarcation between tort recovery for physical harm and economic loss depends on: (1) the nature of the defect; and (2) the manner in which the harm occurred. (A, C & S, 131 Ill. 2d at 441, citing Moorman, 91 Ill. 2d at 82.) Although tort damage is typically the result of an accident involving some violence or collision with external objects (A, C & S, 131 Ill. 2d at 441), the existence of actual injury to other property does not in itself necessarily establish whether the damage to the defective product itself or to other property constitutes economic harm. The mere existence of physical harm to other property should not make a claim compensable in tort where the resultant harm flows only from disappointed commercial expectations. Moorman, 91 Ill. 2d at 95 (Simon, J., specially concurring).

Although we agree with plaintiffs’ assertion that damage to other property is a significant factor in determining whether to invoke the safety policy of tort law, we are unable, based upon our reading of Moorman and subsequent case law, to discern a discrete exception based solely upon the existence of damage to surrounding property. Therefore, absent additional factual circumstances sufficient to implicate legitimate safety/insurance concerns, the sole existence of damage to other property, in and of itself, is insufficient to allow recovery in tort.

Plaintiffs’ second contention is that damages resulting from a sudden and calamitous occurrence are recoverable in tort. It is noted that the trial court quoted a portion of Anderson which in turn quoted portions of the Supreme Court opinion in East River Steamship as follows:

“[W]hen the damage sustained results from a qualitative defect of the product and no person is injured or other property damaged, ‘the resulting loss is purely economic’ [citation] whether the damage was caused by gradual deterioration, internal breakage, or calamitous event. Any loss sustained ‘due to repair costs, decreased value, and lost profits is essentially the failure of the purchaser to receive the benefit of its bargain— traditionally the core concern of contract law.’ ” (Anderson, 115 Ill. 2d at 151.)

Relying upon Anderson and East River, the trial court reasoned that it would be an improper interpretation of Moorman principles to allow recovery for physical harm to the product itself and lost profits even though the harm was caused by a violent event which also resulted in other property damage.

It is significant to note, however, that the facts presented in East River did not involve personal injury or damage to other property. Plaintiffs in that case sought recovery for repairs and lost income on the basis that defendants, as part of the manufacturing process, negligently supervised the installation of certain valves which resulted in the failure of steam turbine engines. (East River, 476 U.S. at 861, 90 L. Ed. 2d at 871, 106 S. Ct. at 2297.) The Supreme Court held that recovery for purely economic losses that result from the product injuring only itself are not compensable in tort. (East River, 476 U.S. at 871, 90 L. Ed. 2d at 877, 106 S. Ct. at 2302.) The Court further observed that the denial of recovery on a negligence theory was further supported by the fact that the only harm was to the product itself and not to persons or other property. (East River, 476 U.S. at 875, 90 L. Ed. 2d at 880, 106 S. Ct. at 2304.) In the present case, the parties concede in their briefs, and make evident by their settlement agreement, that damage to other property occurred. Thus, although not solely dispositive of the question of whether to allow recovery in tort, the existence of other property damage in the present case takes it outside of the holding in East River.

Damages which are the proximate result of a sudden and calamitous occurrence that causes harm to other property are compensable in tort. (Vaughn v. General Motors Corp. (1984), 102 Ill. 2d 431, 436; Seegers Grain Co. v. United States Steel Corp. (1991), 218 Ill. App. 3d 357, 366-67; Bi-Petro Refining Co. v. Hartness Painting, Inc. (1983), 120 Ill. App. 3d 556, 560.) The type of harm attendant to a sudden and calamitous event does not flow from disappointed commercial expectations; rather, it arises from “[hjazards peripheral to the product’s [intended] function.” (Moorman, 91 Ill. 2d at 97 (Simon, J., specially concurring).) When characterizing an event as sudden and calamitous the focus is upon “the suddenness of the occurrence of an event — the point when the injury occurs *** —where such occurrence causes personal injury or damage to property external to the defective product which exposes a party to an unreasonable risk of injury to himself or his property, rather than the suddenness or length of time within which the defect or cause of the occurrence develops *** and manifests itself in the sudden and calamitous occurrence.” (Emphasis in original.) (United Air Lines, Inc. v. C E I Industries of Illi nois, Inc. (1986), 148 Ill. App. 3d 332, 339.) Additionally, a history of repairs prior to the occurrence does not necessarily detract from its characterization as sudden and calamitous where there is evidence to support the finding that the product failed in a sudden and calamitous manner. (Vaughn, 102 Ill. 2d at 436-37 (failure of brakes on truck sudden and calamitous even though plaintiff was aware of condition of brakes for 19 months prior to accident); Seegers Grain, 218 Ill. App. 3d at 366-67 (implosion of grain storage tank sudden and calamitous even though repairs to foundation and access doors of grain storage tank were performed three months prior to occurrence); United Air Lines, 148 Ill. App. 3d at 340-341 (roof collapse was sudden and calamitous even though plaintiff was aware of water accumulation resulting from roof leaks).) In the present case, therefore, the alleged history of the compressor’s vibration or other warning signals would not preclude a finding of a sudden and calamitous event.

Defendants argue, however, that the “de minimis value” of the surrounding property damage as compared to the harm to the product itself and the claim for lost profits should not allow plaintiffs to transform their claim for economic losses into a tort claim. As stated above, it is the nature of the defect and the manner in which the harm creates an unreasonable risk to persons and property that is determinative. Moreover, the authority relied upon by defendants does not address differential values of harm as a basis upon which to allow or deny recovery in tort. See, e.g., United Air Lines, 148 Ill. App. 3d at 341.

It would be untenable to conclude, as a matter of law, that the damage to the surrounding structure allegedly resulting from a blade bursting through the housing of the centrifugal compressor, which claim was settled for $9,000, would be too insignificant to be a factor in the determination of whether to invoke the safety policy of tort law.

We are unable to find support for the defendants’ contention that even if a sudden and calamitous occurrence resulting in damage to surrounding property were shown to exist, recovery for damages to the compressor and lost profits would nevertheless be unrecoverable in tort. The court in Moorman quoted Dean Prosser as follows:

“ ‘There can be no doubt that the seller’s liability for negligence covers any kind of physical harm, including not only personal injuries, but also property damage to the defective chattel itself, as where an automobile is wrecked by reason of its own bad brakes ***.’ Prosser, Torts sec. 101, at 665 (4th ed. 1971).” (Emphasis added.) (Moorman, 91 Ill. 2d at 86.)

It is our opinion that if plaintiffs can succeed in proving the existence of a sudden and calamitous occurrence causing damage to surrounding property, recovery should include damages for any harm which proximately resulted from defendants’ breach of their duty including damage to the compressor and lost profits. See Vaughn v. General Motors (1984), 102 Ill. 2d 431; Seegers Grain Co. v. United States Steel Corp. (1991), 218 Ill. App. 3d 357; Bi-Petro Refining Co. v. Hartness Painting, Inc. (1983), 120 Ill. App. 3d 556.

Although the parties provide conflicting characterizations of the compressor’s failure in their appellate arguments, the trial court was not required to reach the issue of whether a question of material fact existed as to the precise nature of the failure because it decided as a matter of law that, even if a sudden and calamitous occurrence were proved, the Moorman doctrine would still preclude recovery in tort for harm to the product itself and lost profits. In any event, we note that the trial court was not provided with a sufficient evidentiary basis to render any determination on the question of whether the failure of the centrifugal compressor was or was not a sudden and calamitous occurrence.

We hold that the trial court erred in granting defendants’ joint motion for summary judgment.

APPEAL ON DEFENDANTS’ CROSS-MOTIONS

Defendants both agree that the sole issue in this cross-appeal is the interpretation of the successor liability provision contained within the asset purchase agreement. Paragraph 9(a) provides:

“9. Assumption of Liabilities and Obligations
(a) Generally. Except as otherwise provided herein, Buyer hereby assumes and agrees to pay, perform or discharge all liabilities and obligations resulting from the operations of CD on, before or after the date hereof. For a period of two years from the date hereof [6/24/85], Seller agrees to remain responsible for, and to indemnify Buyer from and hold Buyer harmless against, the amount of all liabilities and obligations resulting from the operations of CD on or before the date hereof that are not reflected on the Closing Balance Sheet; provided, that Buyer hereby assumes and agrees to pay, perform or discharge any and all liability as to claims made after the date hereof relating to property damage, including damage to the product itself, or personal injury or death caused in whole or in part by a product manufactured or sold by CD or its predecessors (‘Product Liability Claims’). With respect to Product Liability claims made on or prior to the date hereof, Seller shall remain liable for such claims.”

A-C contends that the trial court erred in granting summary judgment in favor of Chalmers because the language of the asset purchase agreement holds A-C liable only for “product liability” claims and not for claims arising from Chalmers’ operations. A-C argues that because plaintiffs’ claim is for negligent advice and not products liability, any loss which might result from a successful plaintiffs’ action should be fully allocated to Chalmers. A-C acknowledges that the condition of the compressor was, in part, the cause of the damage; yet, it argues that this alone does not transform the claim into one for products liability. Chalmers responds that regardless of plaintiffs’ theory A-C cannot escape the fact that the damage was caused by a failure of the product and that the indemnification provision holds A-C liable for any claims relating to the product. In its written memorandum opinion, dated June 10, 1991, the trial court stated that it was clear from an examination of plaintiffs’ complaint that they were seeking damages for the compressor itself, its component parts and for lost profits and that liability for the cause of action passed to A-C by virtue of the asset purchase agreement.

Where no factual dispute exists, the interpretation of a contract is a question of law properly decided on a motion for summary judgment. (Shorr Paper Products, Inc. v. Aurora Elevator, Inc. (1990), 198 Ill. App. 3d 9, 12.) As a question of law, this court may interpret the agreement independent of the trial court’s judgment. (Shorr, 198 Ill. App. 3d at 12-13.) Furthermore, it is presumed that the contract’s terms and provisions were purposefully inserted and that the language employed therein was not idly employed. Szczerbaniuk v. Memorial Hospital (1989), 180 Ill. App. 3d 706, 713.

Upon our reading of the asset purchase agreement, we conclude that paragraph 9(a) allocated the responsibility for any liabilities resulting from a successful claim by plaintiffs to A-C. The language preceding the parenthetical phrase “Products Liability Claims” clearly defined what the parties intended the phrase to mean. It is commonplace in contracts for parties to define a duty or scope of obligation in detail and then to shorthand that definition by use of a descriptive term or phrase. The sentence succeeding the parenthetical is indicative of the parties’ intent to do precisely that. Although the general rule of contractual construction is that terms are to be accorded their ordinary and obvious meaning (Szczerbaniuk, 180 Ill. App. 3d at 713), the parties are always free, through the use of express contractual language, to expand or limit the meaning of commonly understood terms.

The parties here clearly defined the scope of A-C’s obligations by defining products liability claims as claims made after the date of the agreement “relating to property damage, including damage to the product itself.” In their fourth amended complaint, plaintiffs alleged that the defendants’ negligent advice was the direct and proximate cause of the compressor failure which resulted in property damage to the unit itself, surrounding property and lost profits. It is apparent that plaintiffs’ claim pertained to, and was connected with, the failure of the centrifugal compressor. We conclude, therefore, that paragraph 9(a) of the asset purchase agreement allocated the responsibility for any loss resulting from a successful claim by plaintiffs to A-C.

For the foregoing reasons, we affirm the trial court’s order granting summary judgment in favor of Chalmers on the issue of successor liability under the terms of the asset purchase agreement, but reverse the order granting defendants’ joint motion for summary judgment and remand this cause to the circuit court of Carroll County.

Affirmed in part; reversed in part and remanded.

BOWMAN and GEIGER, JJ., concur.


author: JUSTICE NICKELS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARY ANN MICHEL, Defendant-Appellant.
    Second District
    No. 2—90—1427
    Opinion filed June 24,1992.

      G. Joseph Weller and Ingrid L. Holler, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Roland W. Burris, Attorney General, of Springfield, and Mary Jo Hunt, State’s Attorney, of Galena (Rosalyn B. Kaplan, Solicitor General, and Terence M. Madsen, Assistant Attorney General, of Chicago, and William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NICKELS

delivered the opinion of the court:

Defendant, Mary Ann Michel, was charged by indictment with one count of filing a fraudulent retailers’ occupation tax return and one count of signing a fraudulent retailers’ occupation tax return. (Ill. Rev. Stat. 1989, ch. 120, par. 452.) Following a bench trial in the circuit court of Jo Daviess County, defendant was found guilty of both counts. The trial court entered convictions on both counts. During the sentencing hearing, the trial court questioned the State as to whether defendant could be sentenced on both counts since the offenses arose from the same transaction. The State indicated that it would take the most conservative legal approach possible and that defendant probably should be sentenced on only one count. The State opted for sentencing on count II, signing a fraudulent tax return. The court then sentenced defendant to 30 months of probation and ordered her to pay $1,118 in restitution on count II. No sentence was imposed on count I.

On appeal defendant contends that her conviction of filing a fraudulent tax return must be vacated because both offenses arise from one physical act. (People v. King (1977), 66 Ill. 2d 551.) Additionally, defendant posits that filing a fraudulent tax return is a lesser included offense of signing a fraudulent tax return. Defendant did not raise this issue in her post-trial motion or at sentencing when the trial court raised the question of sentencing on both counts.

First, the State argues that this court does not have jurisdiction to hear the appeal. Pointing out that the final judgment in a criminal case is the imposition of sentence, the State asserts that no appeal can be taken from count I because no sentence was imposed. (People v. Lilly (1974), 56 Ill. 2d 493.) The State acknowledges that an exception to this rule occurs when an appeal from a final judgment on another offense is taken, the reviewing court may also review the conviction on which no sentence was imposed. It asserts, however, that defendant only appealed the nonfinal conviction. Defendant makes no reply to the State’s position.

In Lilly (56 Ill. 2d 493), the defendant was convicted of indecent liberties and rape. While judgment was entered on both verdicts, the trial court sentenced the defendant on only the rape charge because both offenses arose from a single act. On appeal, the defendant claimed that the conviction on the indecent liberties charge must be vacated.

The supreme court noted that the final judgment in a criminal case is a sentence, and in the absence of the imposition of a sentence, an appeal cannot be entertained. (Lilly, 56 Ill. 2d at 496.) Since the case was properly before the court on appeal with regard to the defendant’s claim as to his rape conviction, the court concluded that it had authority to vacate the incomplete judgment entered on the indecent liberties charge. (Lilly, 56 Ill. 2d at 496.) The defendant had raised an issue with respect to the sentence imposed on the rape charge.

In People v. Scott (1977), 69 Ill. 2d 85, the supreme court determined that the appellate court had the authority to remand to the circuit court for imposition of a sentence on an aggravated kidnapping conviction. No sentence had been imposed on the aggravated kidnapping conviction. On appeal to the appellate court, the defendant had argued that the aggravated kidnapping and rape convictions arose from the same physical act and that only the conviction of the more serious offense, rape, could stand. The appellate court found that the offenses were not carved from the same act and remanded the cause for sentencing on the aggravated kidnapping. In affirming the appellate court, the supreme court did not consider the issue whether the order appealed from was final and appealable as the matter had not been raised. Scott, 69 Ill. 2d at 89.

In People v. Dixon (1982), 91 Ill. 2d 346, the supreme court remanded the case for imposition of a sentence on a conviction of mob action after concluding that it was not one physical act with that of aggravated battery. Although the defendant had not appealed from the mob action and disorderly conduct convictions, the State had argued for a remand for the imposition of a sentence on one of the convictions. The Dixon court examined Lilly (56 Ill. 2d 493) and Scott (69 Ill. 2d 85) and found that the absence of a sentence on one of two or more defendant-appealed convictions was not a jurisdictional defect. The court found that the appeal was properly before the appellate court with regard to the defendant’s convictions of armed violence and aggravated battery. The failure to impose sentence on the two unappealed convictions was intimately related to and dependent upon the appealed convictions so that remand was authorized.

More recently, the supreme court in People v. Caballero (1984), 102 Ill. 2d 23, found that armed violence convictions and unlawful restraint convictions were not properly before the court because sentence was imposed only on the murder convictions. The defendant had been sentenced to death on the murder convictions, and the case was on appeal to the supreme court on those convictions. The notice of appeal indicated that appeals were taken from all the convictions. The court noted that final judgment in a criminal case is a sentence, and in the absence of a sentence, an appeal cannot be entertained. (Caballero, 102 Ill. 2d at 51.) Thus, the court dismissed the appeals from the convictions of armed violence and unlawful restraint. Accord People v. Flores (1989), 128 Ill. 2d 66; People v. Kuhn (1988), 126 Ill. 2d 202; People v. Friend (1988), 177 Ill. App. 3d 1002.

The notice of appeal in the case at bar indicates that defendant appealed from the November 30, 1990, order of the trial court. This order entered sentence on the conviction of signing a fraudulent tax return. No issue has been raised with respect to this conviction, unlike the situation in Lilly or Dixon. Based upon People v. Caballero (1984), 102 Ill. 2d 23, no appeal can be taken from the conviction of filing a fraudulent tax return since no sentence was imposed on the conviction. An appeal cannot be entertained in the absence of a final judgment, and there is no final judgment in a criminal case until sentence is imposed. (Caballero, 102 Ill. 2d at 51.) It does not follow that the conviction must be vacated because no sentence was imposed; it simply means there can be no appeal of it. (See Flores, 128 Ill. 2d at 95.) We note that the proper forum for defendant seeking to vacate the judgment of a conviction on the offense of filing a fraudulent tax return is the trial court which has retained jurisdiction on this particular conviction as no final judgment has been entered. 134 Ill. 2d R. 606.

Based on the foregoing, the appeal of defendant’s conviction of filing a fraudulent tax return is dismissed.

Appeal dismissed.

INGLIS, P.J., and BOWMAN, J., concur.