text:
    ROBERT BURNS, Ex’r of the Estate of Emgard Burns, Deceased, Plaintiff-Appellant, v. JOSEPH MICHELOTTI et al., Defendants-Appellees.
    Second District
    No 2—92—0118
    Opinion filed December 8, 1992.

      Robert A. Clifford and Keith A. Hebeisen, both of Robert A. Clifford & Associates, of Chicago (Robert P. Sheridan, of counsel), for appellant.
    Kevin J. Vedrine, of O’Reilly, Cunningham, Norton & Mancini, of Wheaton (William E Cunningham, of counsel), and Robert S. Kramer, of Robert S. Kramer, P.C., of Elgin, for appellee R.P. Garla.
    Therese S. Seeley, of Connelly, Mustes & Schroeder, of Geneva (John L. Schroeder, of counsel), for appellee Joseph Michelotti.
   JUSTICE McLAREN

delivered the opinion of the court:

This medical malpractice action was brought by Robert Burns, individually and as executor of the estate of Emgard A. Burns, deceased, against Joseph Michelotti, M.D., and Renuka Garla, M.D. Plaintiff sought damages for the pain and suffering and wrongful death of decedent allegedly resulting from negligent care in the context of surgical treatment for a gallbladder condition. A jury verdict was returned in favor of both defendants.

On appeal, plaintiff asserts the following reasons for retrial: (1) counsel for defendant Garla engaged in improper ex parte communication with treating physicians; (2) defendant Dr. Garla made a statement in her deposition which amounted to a judicial admission which should have resulted in a granting of plaintiff’s motion to direct a finding as to causation; (3) the expert testifying on Dr. Garla’s behalf expressed opinions at trial which differed from those he expressed in his discovery deposition; (4) the trial court refused to apply Rule 220 standards to Dr. Michelotti to the extent that he testified as an expert for Dr. Garla; (5) several erroneous evidentiary rulings were made during trial; (6) defense counsel made improper statements during closing argument; and (7) the totality of the issues presented above amounted to cumulative error. We affirm.

Responding to complaints of epigastric pain, Dr. Koo referred his patient, Emgard Bums (Mrs. Bums), to Dr. Michelotti for surgical treatment of a suspected gallbladder problem. Dr. Koo belonged to a group of doctors who shared Mrs. Bums as a patient. This group included Doctors Fiedler, Flynn, and Kosinski. Dr. Koo specialized in internal medicine with a subspecialty in pulmonary disease.

After performing a medical examination of Mrs. Burns, Dr. Michelotti confirmed the existence of a gallbladder problem and scheduled Mrs. Bums for elective surgery. On December 1, 1986, Dr. Garla, the anesthesiologist for the surgical procedure, performed a preoperative evaluation and determined that Mrs. Bums had a hypoplastic mandible (a small chin) and an anterior larynx. These preoperative findings indicated the possibility of difficulties in the administration of anesthesia.

Anesthesia is accomplished through a procedure called intubation. This process involves, among other things, the use of two separate tubes. One tube, an endotracheal tube, is inserted through the patient’s mouth and into the trachea. Oxygen and anesthetic gases then pass into the lungs from the tube. Another tube, a nasogastric tube, is passed through the patient’s nose and esophagus and into the patient’s stomach. This tube decompresses and empties the contents of the patient’s stomach so that there will not be any regurgitation or vomiting while the patient is under anesthesia. In general, intubation cannot be performed while the patient is conscious. Therefore, succinylcholine is used to completely sedate the patient prior to intubation in order to facilitate the procedure. Breathing is aided during the procedure by forcing air into the patient’s lungs through the manual compression of an air bag connected to a mask which fits over the patient’s face.

Prior to surgery, Dr. Garla unsuccessfully attempted to intubate Mrs. Burns two times before properly positioning the endotracheal tube into the trachea. Dr. Garla abandoned her first attempt because of difficulties she had visualizing the area as a result of Mrs. Burns’ anterior larynx. On the second attempt, Dr. Garla incorrectly placed the endotracheal tube into Mrs. Burns’ esophagus. On the third attempt, Dr. Garla repositioned Mrs. Burns’ head and successfully placed the endotracheal tube into her trachea. After each unsuccessful intubation, Mrs. Burns received oxygen from the manually compressed air bag.

Dr. Michelotti subsequently performed the gallbladder surgery without incident. He admits awareness of the fact that it took more than one attempt to complete a successful intubation.

Over the course of several days, Mrs. Burns’ health began to decline. She developed an elevated temperature and an increased heart rate on the evening following the surgery. On December 2, the following morning, she developed a sore throat, experienced chest pains, and began to wheeze. At trial, the parties disputed the significance of these symptoms.

On December 3, 1986, in response to Mrs. Burns’ worsening condition, Dr. Michelotti consulted with Dr. Flynn, a doctor of internal medicine with a subspeciality in infectious diseases. Dr. Flynn suspected that the problem related to a blood clot in Mrs. Burns’ lung. Later that day, as Mrs. Burns’ blood pressure began to drop, Dr. Michelotti consulted with Dr. Koo. The three doctors eventually ruled out pulmonary embolism as the cause of Mrs. Burns’ problems. Throughout the day, Mrs. Burns’ condition continued to worsen. Nearing respiratory failure, the physicians placed her on a ventilator for oxygen. This subsequent ventilation also required intubation which was accomplished without incident.

On December 9, 1986, Dr. Koo mentioned mediastinitis as a possible cause of Mrs. Burns’ suffering. Mediastinitis is an infection of the mediastin, the area of the chest bordered by the neck, the diaphragm, and the lungs on either side. Dr. Koo suspected that Mrs. Burns’ mediastin became infected because of a perforation in her esophagus which allowed saliva and other materials and bacterial matter to pass into areas of her chest, heart, and lungs. This diagnosis was confirmed through a visual scoping of the esophagus, which indicated that the perforation was located at a point where the trachea and the esophagus separate from each other.

Dr. Michelotti closed the perforation and placed drains in Mrs. Burns’ neck in an effort to drain the infection. Another operation was performed on December 14, 1986, in an effort to drain the infection. Mrs. Bums remained in intensive care until February 11, 1987, at which time she died during an emergency surgery.

Plaintiff’s complaint cited Dr. Garla’s negligence in performing the intubation as the cause of the esophageal perforation. The complaint also accused Dr. Garla and Dr. Michelotti of failing to timely diagnose and treat decedent’s condition.

Plaintiff first demands a retrial because of ex parte communications which took place between the attorneys for Dr. Garla and several treating physicians in violation of Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581. Specifically, Dr. Garla’s attorneys secured, through the mail, affidavits from these witnesses in order to support a motion to transfer venue from Cook County to Kane County. In support of this motion, Dr. Garla presented many facts relating to the location of witnesses and evidence, as well as arguments relating to fairness and judicial efficiency.

The motion indicates that six of the treating physicians maintain offices in Kane County and five of the six reside in Kane County. The letter requesting the treating physicians’ signatures on the affidavits is not in the record. However, counsel for plaintiff provided the following description of the letter in the record:

“[IJt looks like a form letter that’s sent to each of the doctors that says in the letter, please be advised we represent R. P. Garla, Defendant, in the above captioned medical malpractice lawsuit currently pending in this Circuit Court of Cook County. We have filed a motion to transfer this case to the Circuit Court of Kane County on the basis that all of the treatment rendered this patient occurred at Sherman Hospital during a hospitalization of December 1, 1986; and, therefore, Kane County is the proper venue.
*** [W]e are asking your help and have enclosed an affidavit for your review, which we would like to use in support of this motion. If the affidavit meets with your approval, we ask that you sign where indicated and have your signature notarized. We ask that you then return the affidavit to us at your earliest convenience so we can present it to the Court when the motion is heard. We look forward to your response and thank you for your anticipated cooperation.”

The affidavits themselves state that the affiant’s medical practice and residence are located in Kane County and that all treatment rendered by affiant to plaintiff’s decedent likewise occurred in Kane County. The treating physicians presumably returned the signed affidavits to Dr. Garla’s attorney through the mail.

Plaintiff seeks a new trial in which defendants would be barred from calling as witnesses any treating physicians with whom defendants had ex parte contact. In support of this position, plaintiff argues that all ex parte communications between defense counsel and a plaintiff’s treating physician are prohibited as violative of public policy because they jeopardize the sanctity of the confidential and fiduciary relationship between a physician and his patient. According to plaintiff, the extent of the contact, the harm produced by the contact, and questions of good faith are irrelevant to the analysis.

Dr. Garla argues that plaintiff failed to properly present the issue for review and, in the alternative, that reversal cannot be granted where the ex parte communication complained of amounted to de minimis contact. Dr. Michelotti argues he is beyond reproach because his attorneys were not involved in the communications in question.

We cannot accept Dr. Garla’s initial argument that the issue is not properly presented for review. Dr. Garla correctly asserts that excerpts from discovery depositions are not included in the record for purposes of substantiating the alleged Petrillo violation. However, defense counsel for both defendants failed to object when counsel for plaintiff read the allegedly violative letter into the record. Therefore, the excerpts became incorporated as evidence into the report of proceedings pursuant to Rule 323 (134 Ill. 2d R. 323) and, therefore, a part of the record on appeal pursuant to Rule 321 (134 Ill. 2d R. 321). In addition, the attorneys for both defendants subsequently presented arguments about the minimal nature of the contact and its lack of resulting harm to plaintiff’s case. In our view, these actions amount to a tacit admission regarding the existence and content of the letters sent to the treating physicians.

We next address defendant’s argument that a reversal cannot be granted where the ex parte communication was of a de minimis nature. We do not agree. In our view, all ex parte communication between defense counsel and a treating physician amounts to a violation of public policy and should be sanctioned in the discretion of the trial court.

The leading case in this area, Petrillo v. Syntex Laboratories, Inc., determined that ex parte conferences between defense counsel and a plaintiff’s treating physician jeopardize the sanctity of the physician/patient relationship and, therefore, are prohibited as against public policy. (Petrillo, 148 Ill. App. 3d at 588.) In a footnote, Petrillo defines ex parte contacts as including “any discussion that defense counsel has with a plaintiff’s treating physician which is not pursuant to the authorized methods of discovery.” (148 Ill. App. 3d at 584 n.1.) The Petrillo court held that strong public policy concerns about the ethical and fiduciary relationship between a patient and physician underlie the prohibition of ex parte conferences, particularly where such information is readily obtainable through the regular methods of discovery. (Petrillo, 148 Ill. App. 3d at 596.) In light of this position, the Petrillo court affirmed the trial court’s order finding an attorney in contempt of court as a result of his failure to comply with the court order barring him from engaging in ex parte conferences with the plaintiff’s treating physicians. Thus, in general, a violation of the physician-patient privilege is said to occur at the time an ex parte conference takes place between the plaintiff’s treating physician and the counsel for defense. This violation occurs regardless of what information is actually revealed during that conference. Mondelli v. Checker Taxi Co. (1990), 197 Ill. App. 3d 258, 265.

Mahan v. Louisville & Nashville R.R. Co. (1990), 203 Ill. App. 3d 748, appeal denied (1990), 135 Ill. 2d 557, strays from the general trend which finds a Petrillo violation regardless of the nature of the contact between defense counsel and the treating physician. In Mahan, the court held that a PetriUo violation does not occur where the ex parte communication is of a de minimis nature and does not result in the disclosure of any private or confidential information regarding the patient. (Mahan, 203 Ill. App. 3d at 754.) We disagree with Mahan and determine that the policies enunciated by PetriUo are better served by finding that improper ex parte communication has occurred any time defense counsel has ex parte contact with a treating physician. Therefore, in the present case, we hold that the contact occurring through the affidavit requests and exchanges amounted to a PetriUo violation. We must now determine whether that violation requires a sanction.

The determination of an appropriate sanction for a Petrillo violation lies within the sound discretion of the trial court. (Pourchot v. Commonwealth Edison Co. (1992), 224 Ill. App. 3d 634, 637.) Many courts have sanctioned PetriUo violations by barring the testimony of treating physicians involved in ex parte communications with defense counsel. For example, in Karsten v. McCray (1987), 157 Ill. App. 3d 1, 14, the court adopted the reasoning in PetriUo and held that “barring the testimony of a plaintiff’s treating physician is an appropriate sanction to protect the physician-patient privilege from defense interviews outside formal discovery.” The court explained that while an order barring the testimony or evidence resulting from unauthorized conferences would not remedy the breach of trust addressed by Potrillo, the sanction is appropriate in order to protect the patient’s confidences and precludes such conferences from taking place in the future. (Karsten, 157 Ill. App. 3d at 14.) The court noted that discussion of a patient’s confidences is potentially harmful when it is not conducted through formal discovery procedures and that the patient should be allowed to protect his physician-patient privilege, by appropriate objection, before it is compromised. Karsten, 157 Ill. App. 3d at 14.

In our view, barring an expert’s testimony will not always be the proper sanction for a Petrillo violation. In Pourchot, the court determined that a PetriUo violation required a reversal of the trial court’s order denying plaintiff’s motion for sanctions on the matter. The court explained that, if the trial court believes the plaintiff’s treating physician’s testimony has been tainted by virtue of the improper ex parte communication, then the appropriate sanction is to bar the testimony. (Pourchot, 224 Ill. App. 3d at 637.) Following this reasoning, it is entirely possible for a trial court to determine that a physician’s testimony had not been tainted by virtue of an improper ex parte communication. For example, under such circumstances where the communication is of a de minimis nature, a court may refuse to impose sanctions for a PetriUo violation.

Additionally, in Yates v. El-Deiry (1987), 160 Ill. App. 3d 198, the court determined that a new trial may be ordered in the face of a PetriUo violation where prejudice or improper conduct can be shown. The court further determined that such prejudice and improper conduct can be implied from the mere fact that an ex parte communication took place. In our view, it follows that this implication can be rebutted. Thus, if an opponent can show the absence of prejudice or improper conduct, a PetriUo violation would not warrant a sanction barring the physician’s testimony or a reversal ordering the same on retrial.

In the present case, the trial court considered barring the testimony of the treating physicians as a sanction but decided that such a sanction would be inappropriate in light of the minimal nature of the contact. Instead, the trial court allowed plaintiff’s counsel to voir dire the treating physicians in order to determine if there were any other PetriUo violations. The trial court characterized this ruling as a sanction.

We determine that this “sanction” did not amount to an abuse of the trial court’s discretion. The minimal nature of the contact in question and its lack of relevance to the substance of the case rendered it relatively harmless, minimally improper and hardly prejudicial. The contact merely came in the form of a written request for the treating physician’s residence and workplace and the location of plaintiff’s treatment for purposes of a venue change. The transmission of this information between Dr. Garla’s defense attorneys and the treating physicians could not have tainted the physicians’ testimony to such an extent as to warrant a retrial. Therefore, the trial court did not abuse its discretion in refusing to bar the testimony of the treating physicians, and we will not order a retrial on this issue.

Plaintiff next cites error in the trial court’s refusal to hold that statements made by Dr. Garla during her deposition amounted to judicial admissions of liability for the perforation of decedent’s esophagus. Plaintiff asserts that reversal of a judgment is required where the trial court refuses to consider the judicial admission as binding. We determine that Dr. Garla’s statements did not rise to the level of judicial admissions.

The statements a party makes during a discovery deposition may be treated as an admission. (134 Ill. 2d R. 212(a)(2).) If the admission amounts to a judicial admission, it is binding upon the party, and it ftiay not be controverted. (Trapkus v. Edstrom’s, Inc. (1986), 140 Ill. App. 3d 720, 722.) A judicial admission is a clear and unequivocal statement which is made without reasonable chance of mistake about á matter within the speaker's personal knowledge. (Trapkus, 140 Ill. App. 3d at 723.) A party cannot create a factual dispute by contradicting a previously made judicial admission. (Hansen v. Ruby Construction Co. (1987), 155 Ill. App. 3d 475, 480.) We have reviewed the record and, in our view, Dr. Garla’s responses are not unequivocal and, therefore, do not amount to judicial admissions. Dr. Garla’s statements express a large measure of uncertainty. The fact that she does not discount valid hypotheses posed by plaintiff’s counsel is consistent with and reflective of her expressed uncertainty.

A judicial admission is the highest and best type of evidence which dispenses with the need for proof of the facts submitted. (O’Neill v. Chicago Transit Authority (1972), 5 Ill. App. 3d 69.) In our view, responses which are equivocal in nature, such as those made by Dr. Garla, do not dispense with the need for proof of the facts submitted. Therefore, plaintiff’s request for reversal on these grounds is denied.

Plaintiff next argues that a new trial is required because Dr. Garla’s expert, Dr. Edward Brunner, was allowed to testify in the manner inconsistent with the opinions he disclosed during discovery in violation of Supreme Court Rule 220. (134 Ill. 2d R. 220(d).) Prior to the presentation of Dr. Brunner’s testimony at trial, counsel for plaintiff made an oral motion to bar the doctor from giving any opinions to the effect that the nasogastric tube, or Salem sump tube, caused the perforation of decedent’s trachea. In support of this motion, plaintiff explained that such opinions must be barred because they were not revealed by the doctor during his deposition.

At trial, plaintiff specifically moved to bar any opinion as to how the Salem sump caused the esophageal perforation because the doctor’s testimony during his deposition took the form of speculation.

Rule 220(d) provides in part:

“To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings through interrogatories, depositions or requests to produce, his direct testimony at trial may not be inconsistent with or go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings. However, he shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings.” (134 Ill. 2d R. 220(d).)

The committee comments identify the purpose of the rule as one which seeks to “permit litigants to ascertain and rely upon the opinions of experts retained by their adversaries.” (134 Ill. 2d R. 220(d), Committee Comments, at 182.) Thus, opinions expressed by an expert at trial are inadmissible if they are inconsistent with or exceed the scope of opinions that expert expressed during discovery. (Bart v. Union Oil Co. (1989), 185 Ill. App. 3d 64.) A decision to allow an expert to testify on matters of opinion lies within the discretion of the trial court. Ramos v. Pyati (1989), 179 Ill. App. 3d 214, 229.

In the present case, over plaintiff’s objection, the following discourse took place between Dr. Brunner and defense counsel:

“Q. And do you have an opinion based on a reasonable degree of medical and surgical certainty as to the most likely cause of the perforation as of December 3,1986?
* * *
THE WITNESS: There are a variety of factors that could explain the perforation. The patient had a nasogastric tube inserted at the time of the surgery. A Salem sump is a rather rigid tube. Passing that with an endotracheal tube present in the trachea, now remember the balloon bulges out, will cause some difficulty in passage.
You — I think that there was testimony by Doctor Garla that she, in fact, had to use her fingers to help guide that tube down the throat. And the reason is that the tube gets misdirected. Instead of being able to go straight down the esophagus, that balloon pushes against the wall, pushes the Salem sump against the wall. It’s possible that there could have been some denudation of the mucosa at that point.
* * *
THE WITNESS: We know that the patient subsequently had thick secretions that she cleared with difficulty. In developing a cough, it’s difficult to clear secretions. And if you cough, you raise the pressure within the lungs, you fix the diaphragm, and you frequently purse your lips (demonstrating), and that pushes the pressure down into the esophagus, which we know that increasing the pressure in the esophagus in the presence of an injury can in fact cause a rupture, spontaneous rupture of the esophagus does occur.
It’s been described in the surgical literature for years. Over a hundred years. It’s called Boerhaave’s Syndrome. It’s usually associated with retching. But in this circumstance, it’s my opinion beyond a — well, with a reasonable degree of certainty, that that’s the mechanism which caused the injury to the esophagus.”

Plaintiff argues that this opinion at trial was not disclosed as an opinion at the doctor’s deposition but, instead, was expressed in the form of speculation. In support of this argument plaintiff cites the following discourse at Dr. Brunner’s deposition:

“Q. So when we talk about your opinion that on December 1st there was some erosion or disruption in the esophagus, we’re talking about a traumatic erosion, correct?
A. That’s a possibility. But if you remember, I said I couldn’t define with any degree of medical certainty that that’s when that occurred. [Emphasis added.] That would be one possibility, that is correct.
* * *
[Q.] How, then, in the exercise of reasonable care and caution could a disruption in the esophagus occur in the area of the cricopharyngeal junction by the insertion of the NG tube?
A. I would think if it was the — not the NG, but the Salem sump. The Salem sump is a reasonably rigid instrument, and may have denuded the mucosa and down into the submucosal muscalaris layers as it was being guided down the esophagus.
Q. And how was it—
A. I’m speculating. I’m speculating.”

In the isolated context plaintiff would have us view them, these statements do not seem to express an opinion within a reasonable degree of medical certainty. However, from the context of the full text of the deposition, Dr. Brunner’s opinions on the matter are more apparent. For example, Dr. Brunner unambiguously expressed his opinion that “there was not a through and through rupture of the esophagus at the time of intubation [on December 1].” Dr. Brunner agreed with the plaintiff’s questioning attorney that the basis of this opinion is the doctor’s belief that symptoms of esophageal perforation would have occurred sooner than December 3, had such a perforation occurred on December 1. Dr. Brunner explained:

“A. If the perforation had occurred at that time and was through and through with contamination of the structures of the neck, I would have expected that there would have been an inflammatory process and a body response and a rise in white cell count. And the symptomatic episodes that I described earlier, I would have expected those to occur much earlier if something happened at the time of surgery.
What happened was that there was a weakening, maybe an erosion, by the presence of the nasogastric tube, that’s one possibility, which then led to further damage of the esophagus and the through and through perforation at the time the patient became symptomatic or shortly before that.
Do I make myself clear to you now?
Q. Yes.”

Dr. Brunner further testified:

“A. Oh, there is no question that the presence of a nasogastric tube could cause such an erosion in the esophagus, and it’s possible that the endotracheal tube or a stylet, a sharp stylet protruding from the endotracheal tube, could do so.”

Thus, Dr. Brunner opined, both at trial and during discovery, that the nasogastric tube inserted at the time of decedent’s surgery may have caused some denudation of the mucosa in decedent’s esophagus which became a through-and-through perforation at some later time. Dr. Brunner’s testimony is not, as plaintiff characterizes it, that the nasogastric tube caused the actual perforation. Therefore, because Dr. Brunner’s trial testimony was consistent with his deposition testimony, and because Dr. Brunner’s trial testimony did not go beyond the scope of the facts known or opinions disclosed during discovery proceedings, we deny plaintiff’s request for a reversal on this matter. We hold that the trial court did not abuse its discretion in refusing to bar Dr. Brunner’s expert testimony.

Plaintiff next argues that he was denied a fair trial because the trial court permitted Dr. Michelotti to provide testimony at trial which included an opinion about the cause of decedent’s death that he formulated subsequent to his deposition but prior to trial. Plaintiff characterizes Dr. Michelotti as an expert with respect to his opinions regarding the cause of the esophageal perforation. As an expert, plaintiff asserts that Dr. Michelotti’s testimony at trial violated Supreme Court Rule 220 due to its inconsistency with his deposition. (134 Ill. 2d R. 220.) Dr. Garla argues that plaintiff has waived this argument because it is raised for the first time on appeal. We agree.

At trial, plaintiff objected to Dr. Michelotti’s testimony because it was contrary to an opinion he previously gave under oath and because his newly formulated testimony was based in part upon a review of the literature which plaintiff had not been privy to. Plaintiff specifically stated in arguing this objection that “I am not talking about 220.” Moreover, plaintiff’s post-trial motion mentioned error in allowing Dr. Michelotti to provide testimony different from his sworn deposition, but the post-trial motion does not alert the trial court that the basis of the objection requires a characterization of Dr. Michelotti as a Rule 220 expert.

The focus of plaintiff’s objection at trial was on the surprise inherent in Dr. Michelotti’s new testimony and the need to review the world literature upon which Dr. Michelotti apparently relied in order to arrive at his new opinions. In response to Dr. Michelotti’s testimony, plaintiff moved for a mistrial, sought to strike the testimony, and requested extra time in order to review the literature upon which Dr. Michelotti relied. In arguing for this requested relief, plaintiff never characterized Dr. Michelotti as a Rule 220 expert.

On several occasions during these discussions, the trial court specifically stated that Dr. Michelotti was not a Rule 220 expert. Plaintiff never argued to the contrary or corrected the trial judge. At one point during the discussions, the trial court specifically expressed its opinion that Rule 220 does not apply. Counsel for plaintiff unambiguously responded, “I agree with that.”

A specific objection to evidence, based solely on particular grounds, amounts to a waiver of objections to all grounds not specified or relied upon. (Barreto v. City of Waukegan (1985), 133 Ill. App. 3d 119, 130.) Plaintiff’s failure to present this characterization of Dr. Michelotti as a Rule 220 expert to the trial court below effectively precluded the trial judge or opposing counsel from responding to the argument. Since plaintiff’s grounds for relief were not specified in this post-trial motion, he may not urge this point as error on appeal. 134 Ill. 2d R. 366(b)(2)(iii).

Plaintiff next asserts reversible error where the trial court allowed a nurse to testify about her observations of the amount of force Dr. Garla exerted in performing the intubation. Specifically, plaintiff objected to the following statements made by the nurse: “I don’t recall that there was any unusual amount of force.” “I did not see any undue force.” Plaintiff asserts that, as a layperson, the nurse was not qualified to render the opinions cited above. Citing People v. Robinson (1981), 102 Ill. App. 3d 884, 891, plaintiff argues that, while a layperson may express opinions under certain circumstances, a proper foundation must be established which shows the witness to have personal knowledge of the facts that form the basis of that opinion. Plaintiff asserts that no such foundation was laid in the present situation.

According to Robinson:

“A nonexpert, lay witness who has had an opportunity to observe an individual may give his opinion as to the latter’s mental condition at that time so long as his testimony contains sufficient facts and circumstances forming the basis for the opinion. [Citations.] The question of whether the witness has related sufficient underlying facts and circumstances to serve as a foundation for such testimony is for the trial court to decide, and that decision will not be altered in the absence of a showing of abuse of discretion.” (Robinson, 102 Ill. App. 3d at 891.)

The facts in Robinson involved an arresting officer’s testimony about the defendant’s apparent mental status at the time of an arrest. The court determined that the arresting officer’s observation of and interaction with other criminals presented the necessary foundation for the officer to form opinions about the defendant’s mental state. The Robinson court finally stated that “it was for the jury to assign weight to his testimony in light of this foundation and the remaining evidence of record.” Robinson, 102 Ill. App. 3d at 891-92.

We agree with plaintiff’s assertion that the nurse’s testimony amounts to an opinion because it is a conclusion about the proper force to be used in performing an intubation and because the conclusion is drawn by a person who is unqualified to perform an intubation. The trial court improperly treated the nurse’s statements as a mere observation of Dr. Garla’s actions and, thereby, did not correctly respond to plaintiff’s objection that a foundation had not been made which would qualify the nurse to make statements about the existence or the absence of undue force applied by Dr. Garla. Nevertheless, we find that the error was not so prejudicial as to warrant reversal.

We will not grant reversal upon rulings on evidence unless the error was substantially prejudicial and affected the outcome of the trial. (Jackson v. Pellerano (1991), 210 Ill. App. 3d 464, 471.) The burden is on the party seeking reversal to establish prejudice. (Jackson, 210 Ill. App. 3d at 471.) We determine that plaintiff has not shown sufficient prejudice on this issue to warrant reversal.

First, the nurse testified that during the course of her career she had seen quite a number of intubations. In addition, she directly observed and assisted Dr. Garla in the performance of the instant intubation. Thus, some foundation had been established for the presentation of the nurse’s opinion evidence. More importantly, when asked about her abilities on cross-examination, the nurse admitted that her assessment of what amounted to undue force could not be made accurately. In our view, this admission alleviated any prejudice that may have accrued, and, accordingly, plaintiff’s request for reversal on this issue is denied for failure to establish prejudice.

Plaintiff next alleges a violation of a motion in limine where the trial court allowed cross-examination on matters involving Dr. Holtzman’s (plaintiff’s expert) opinion about Dr. Koo’s care of decedent. During trial, defense counsel asked Dr. Holtzman whether he had any opinions with respect to the care and treatment rendered by Dr. Koo. Plaintiff’s attorney answered the question by stipulation in the affirmative. Plaintiff then objected to the question. The court sustained the objection, ordered that the question be stricken, and instructed the jury to disregard the question. The court did not strike the answer (the stipulation) because no such request was made by plaintiff. Plaintiff’s motion in limine No. 2 prohibits arguments that other people, besides defendant, had not been sued. The facts presented above indicate the initiation of such an argument, but potential prejudice was substantially reduced because of the stipulation, the objection and the jury admonishment. Therefore, reversal on this issue is denied for failure to establish prejudice.

Plaintiff next argues he was denied a fair trial as a result of improper attempts to impeach the testimony of Dr. Holtzman. At trial, counsel for Dr. Michelotti asked Dr. Holtzman about fatality statistics resulting from a failure to diagnose esophageal perforation within the first 48 hours of its occurrence. Impeachment was attempted by pointing to Dr. Holtzman’s deposition testimony about the fatality statistics relating to the failure to diagnose mediastinitis within the first 48 hours of its occurrence. Plaintiff argues that this line of questioning constituted a deliberate attempt to mislead the jury and was an improper form of impeachment where the prior statement was not inconsistent with the latter. However, at trial, counsel for plaintiff only objected to the form of the question and not its substance. As discussed above, a specific objection to evidence, based solely on particular grounds, amounts to a waiver of objections to all grounds not specified or relied upon. (Barreto, 133 Ill. App. 3d at 130.) Therefore, we determine plaintiff has waived this issue for purposes of this appeal.

Plaintiff next argues for a retrial because counsel for Dr. Garla misrepresented plaintiff’s burden of proof during closing arguments. Specifically, plaintiff objected to the following language:

“So it’s as if the Plaintiff has three mountains that they have [sic] to scale.”

Defense counsel preceded this comment by asserting that plaintiff must prove negligence, injury, and proximate cause. Plaintiff objected to this statement because it suggests that the applicable burden of proof is more stringent than the burden requiring plaintiff to prove his case by a preponderance of the evidence, the proper standard in the instant case. Wallace v. Weinrich (1980), 87 Ill. App. 3d 868, 871.

In presenting their arguments to the jury, counsel may state what they believe the law to be as long as their remarks are not misleading. (Lounsbury v. Yorro (1984), 124 Ill. App. 3d 745, 749.) The propriety of arguments made to the jury is a decision which rests in the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. (Mohler v. Blanchette (1982), 106 Ill. App. 3d 545, 554-55.) Error at trial warrants reversal only if the error prejudiced the appellant or duly affected the outcome of the trial. Lounsbury, 124 Ill. App. 3d at 751.

In the present case, when a greater portion of the record is examined, it is apparent that plaintiff’s case has not been prejudiced and a reversal is not warranted. First, the “three mountains” argument amounts to a simple analogy where the requisite elements of negligence are likened to mountains which plaintiff must climb. Such an analogy, while somewhat vague, does not unduly distort the preponderance of the evidence standard. Second, defense counsel for Dr. Garla specifically stated the correct preponderance of the evidence burden in the body of his argument. Finally, plaintiff effectively rebutted defendant’s argument and dissipated its effectiveness by making an analogy of his own. Specifically, he stated:

“Mr. Cunningham talks about a mountain. You know and we all know from what he said in his other comments, we are not talking about a mountain. We are talking about a 50 yard line. If the Plaintiff is that far off the 50 yard line in the Plaintiff’s favor, the Plaintiff has fulfilled his burden of proof. We are not talking about a mountain. We are talking about less than a yard.”

Therefore, we hold that admission of defense counsel’s argument comparing plaintiff’s burden to a mountain-climbing expedition does not amount to reversible error in the present case.

A party may argue that proving elements of negligence is like climbing mountains so long as the jury is properly instructed that a unanimous verdict is required regardless of who prevails. Since the jury in this case was correctly instructed on this issue by the trial court, reversible error has not occurred.

Finally, plaintiff argues that the combined effect of the errors cited above amounts to cumulative reversible error. In light of our discussion above, we determine that the issues raised by plaintiff do not amount to cumulative error justifying reversal.

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

UNVERZAGT and WOODWARD, JJ, concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    THOMAS BUELL et al., Plaintiffs, v. OAKLAND FIRE PROTECTION DISTRICT BOARD, d/b/a Oakland City Ambulance Service, et al., Defendants (Felda Ingrum, Defendant and Counterplaintiff-Appellee; Oakland Fire Protection District Board, d/b/a Oakland City Ambulance Service, et al., Plaintiffs and Counterdefendants-Appellants).
    Fourth District
    No. 4—92—0380
    Opinion filed December 17, 1992.

      Edward M. Wagner, John D. Flodstrom, and Michael R. Robinson, all of Heyl, Royster, Voelker & Allen, of Urbana, for appellants.
    • Jerrold H. Stocks and Glen A. Featherstun, both of Armstrong, Winters, Prince, Featherstun & Johnson, of Decatur, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Plaintiffs Thomas and Beverly Buell filed an action against the Oakland Fire Protection District Board, d/b/a Oakland City Ambulance Service (Oakland), and Felda Ingram, seeking damages for personal injuries. The pleading alleged that Thomas Buell was a passenger in an ambulance owned by Oakland and operated by Mary Jane Temples that collided with an automobile driven by Ingram. Ingram filed a counterclaim against Oakland and its employee, Temples, seeking contribution for any alleged injuries and loss of consortium suffered by plaintiffs. Four of the counts in this counterclaim were based on a theory of wilful and wanton conduct, and four were brought under a negligence theory. Only the negligence counts are at issue here.

On June 4, 1991, Oakland and Temples filed a motion for summary judgment on Ingram’s counterclaim for contribution based upon section 5—106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act), which provides:

“Except for willful or wanton conduct, neither a local public entity, nor a public employee acting within the scope of his employment, is liable for an injury caused by the negligent operation of a motor vehicle or firefighting or rescue equipment, when responding to an emergency call, including transportation of a person to a medical facility.” Ill. Rev. Stat. 1991, ch. 85, par. 5—106.

The trial court denied the motion for summary judgment, citing the existence of a material issue of fact whether the emergency vehicle operator could reasonably conclude that there was a bona fide emergency. On March 24, 1992, Oakland and Temples filed a motion for leave to file a first affirmative defense against the four counts alleging negligence. No objection was made to the timeliness of this motion. The proposed affirmative defense asserted that, under the immunity afforded by section 5—106 of the Tort Immunity Act, neither Oakland nor Temples could be held liable for any injury resulting from a claim of negligence. On April 14, 1992, the trial court denied the motion and on April 23, 1992, entered a written order for Rule 308 (134 Ill. 2d R. 308) interlocutory appeal. The trial court identified the following question of law: whether section 5—106 of the Tort Immunity Act may be raised as a defense in an action for contribution brought pursuant to the Joint Tortfeasor Contribution Act (Contribution Act) (Ill. Rev. Stat. 1991, ch. 70, par. 301 et seq.).

I

The Illinois Supreme Court adopted the doctrine of contribution among joint tortfeasors in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437. The Skinner decision was later codified by the legislature in the Contribution Act, which provides:

“[W]here 2 or more persons are subject to liability in tort arising out of the same injury to person or property, *** there is a right of contribution among them, even though judgment has not been entered against any or all of them.” Ill. Rev. Stat. 1991, ch. 70, par. 302(a).

In cases where the law of contribution has clashed with statutory immunities which would defeat a direct action, Illinois courts have balanced the public policy concerns and found, in many cases, that the law of contribution must prevail over a conflicting principle of immunity. (See Doyle v. Rhodes (1984), 101 Ill. 2d 1, 461 N.E.2d 382; Stephens v. McBride (1983), 97 Ill. 2d 515, 455 N.E.2d 54; Hartigan v. Beery (1984), 128 Ill. App. 3d 195, 470 N.E.2d 571.) These same considerations of public policy have, in many cases, led to the opposite conclusion. (See Stephens v. Cozadd (1987), 159 Ill. App. 3d 452, 512 N.E.2d 812; Lietsch v. Allen (1988), 173 Ill. App. 3d 516, 527 N.E.2d 978; Martin v. Lion Uniform Co. (1989), 180 Ill. App. 3d 955, 536 N.E.2d 736.) Under the facts in this case, we find section 5—106 of the Tort Immunity Act defeats Ingram’s right to contribution.

At the outset, we note that the Contribution Act has been in effect since 1979. (See Pub. Act 81—601, eff. Sept. 14, 1979 (1979 Ill. Laws 2347).) Unlike other provisions in the Tort Immunity Act, section 5—106 was adopted in 1986. (See Pub. Act 84—1431, §2, eff. Nov. 25, 1986 (1986 Ill. Laws 3740, 3741).) Clearly, the legislature had the option of limiting application of section 5—106 to direct actions, but did not do so. To allow a right of contribution to prevail over the immunities provided in section 5—106 would defeat what appears to be a distinct legislative purpose.

Citing Doyle, Ingram contends that the theory underlying the right of contribution is not so much a recovery for the tort, but the enforcement of an equitable duty to share liability for the wrong done. (Doyle, 101 Ill. 2d at 14, 461 N.E.2d at 388.) To accept this argument would expose Oakland to liability from a wrongdoing third-party plaintiff and defendant upon a wider basis than it would be to the injured plaintiff. We find no equitable purpose served by this inconsistency and agree with the Lietsch decision, where the court stated:

“A nonsensical result is achieved by allowing the plaintiff to recover against a municipality only for willful and wanton misconduct while allowing a wrongdoing codefendant to recover in contribution for simple negligence.” Lietsch, 173 Ill. App. 3d at 520, 527 N.E.2d at 980-81.

II

Ingram contends that application of section 5—106 of the Tort Immunity Act as an affirmative defense to a claim for contribution will effect an unconstitutional construction, in violation of the due process guarantees of the Illinois Constitution (Ill. Const. 1970, art. I, §2) and the provisions of the fourteenth amendment of the United States Constitution (U.S. Const., amend. XIV). She argues that to allow Oakland to avoid its share of fault is to force her, because of joint and several liability, to pay an obligation of a public enterprise, in violation of the due process guarantees of the Illinois Constitution (Ill. Const. 1970, art. I, §2).

Legislative enactments carry a strong presumption of constitutionality, and all doubts must be resolved in favor of their validity. The burden rests upon the challenging party to rebut this presumption. (Bilyk v. Chicago Transit Authority (1988), 125 Ill. 2d 230, 235, 531 N.E.2d 1, 2-3.) The test, in determining whether a statute violates due process, is whether the statute is reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety, and general welfare. People v. Burton (1981), 100 Ill. App. 3d 1021, 1022, 427 N.E.2d 625, 627.

The general policy underlying section 5—106 of the Tort Immunity Act is that ambulance operators should be shielded from personal liability for decisions made and actions taken while responding to an emergency. If the operator is haunted by the possibility of facing devastating personal liability for actions taken in the course of responding to an emergency, then employee performance will certainly be hampered. See Cozadd, 159 Ill. App. 3d at 458, 512 N.E.2d at 815.

Ingram argues that these same considerations apply to operators of private ambulance services as well. Yet, these private operators are not excused for their acts of negligence. Ingram contends that the presence of an emergency is a circumstance which should operate equally in considering whether an ambulance operator has exercised reasonable care.

Applied to the case at hand, this argument contains a fatal assumption — that private ambulance service is available. Oakland, Illinois, is a community of approximately 1,000 people. Like many small communities across Illinois, Oakland is not served by a private ambulance company. As sovereign, the governmental entity undertakes many activities as an obligation to its citizens, performing functions which an individual would not undertake. To hold Oakland responsible for the full consequences of providing ambulance services would lead to hesitation on the part of government to undertake and perform this essential duty. (See Martin, 180 Ill. App. 3d at 962, 536 N.E.2d at 740.) We find the statute reasonably designed to remedy this threat to the public health and general welfare.

Finally, Ingram contends that section 5—106 of the Tort Immunity Act grants special privileges to Oakland, in violation of the special legislation proscription (Ill. Const. 1970, art. IV, §13) and the equal protection guarantees (Ill. Const. 1970, art. I, §2) of the Illinois Constitution.

The availability of the right of contribution for acts of negligence is governed by the public or private status of the ambulance. The historical rationale supporting immunity for those activities unique to government is the characterization of the activity as one of “official discretion.” Ingram cites Currie v. Lao (1990), 198 Ill. App. 3d 625, 632, 556 N.E.2d 318, 323, aff'd (1992), 148 Ill. 2d 151, 592 N.E.2d 977, in support of her contention that operation of an ambulance service is “ministerial” by nature and should not be accorded immunity for acts of negligence. Furthermore, in his specially concurring opinion in Currie, Justice Heiple stated: “It is well settled that the negligent operation of a motor vehicle is not, as a matter of law, a uniquely governmental function.” Currie, 198 Ill. App. 3d at 632, 556 N.E.2d at 323.

If operation of an ambulance service is not a uniquely governmental undertaking and not characterized as conduct invoking “official discretion,” then, Ingram argues, its status as a public entity has been arbitrarily assigned. Accordingly, Ingram claims to have been denied equal protection under the Contribution Act on the mere fortuitous circumstance that she collided with a public ambulance. Furthermore, if Oakland’s operation of an ambulance service is qualitatively equal to the same service provided by private companies, then granting privileges of tort immunity to Oakland violates the proscription against special legislation.

Whether a law is challenged as special legislation or as violative of equal protection, the controlling question is the same: is the statutory classification rationally related to a legitimate State interest? (Bilyk, 125 Ill. 2d at 236, 531 N.E.2d at 3.) The legislature has broad latitude and discretion in drawing statutory classifications to benefit the general welfare, and the classification will be upheld if any set of facts can be reasonably conceived which justify distinguishing the class to which the law applies from the class to which the statute is inapplicable. (Bilyk, 125 Ill. 2d at 236, 531 N.E.2d at 3.) The substantial involvement of taxpayers in funding the operation of a public ambulance service provides a rational basis for differentiating between the liability of public and private ambulance services.

We find section 5—106 of the Tort Immunity Act may be used as an affirmative defense in action for contribution.

Reversed and remanded.

STEIGMANN, P.J., and KNECHT, J., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DESI A. WARREN, Defendant-Appellant.
    Fourth District
    No. 4—92—0366
    Opinion filed December 17, 1992.

      Daniel D. Yuhas and Susan E. Alesia, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Jeffrey K. Davison, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On June 10, 1991, defendant Desi A. Warren entered a plea of guilty to unlawful delivery of a controlled substance (more than 15 grams of a substance containing cocaine) (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2)). A second charge, identical to the first except it charged the offense of unlawful possession with intent to deliver, was dismissed. He was subsequently sentenced to a term of 15 years’ imprisonment and a $2,000 fine.

Defendant maintains on appeal (1) the trial court erred in considering evidence that he did not use drugs or alcohol as an aggravating factor in sentencing; (2) the trial court improperly considered uncorroborated and unreliable testimony regarding his drug-dealing activities; and (3) the trial court failed to adequately consider the mitigating factors including his minimal criminal record, his age, and the excessive hardship his sentence placed upon his family. We affirm.

As a factual basis for defendant’s guilty plea, the prosecutor stated: (1) a woman named Toni Leonard approached the police with information about a Champaign drug ring; (2) Leonard offered to participate in a planned drug buy; (3) following police instructions, Leonard called defendant and asked to purchase cocaine; (4) defendant agreed to meet Leonard in a restaurant parking lot and sell her the drugs; (5) police provided Leonard with the money to purchase the drugs, and she met with defendant on January 18, 1991; (6) after the transaction, police arrested defendant and two companions; and (7) laboratory tests indicated that 27.7 grams of cocaine were involved in the transaction.

Defendant failed to appear at the sentencing hearing and was sentenced in absentia. The State presented Leonard as a witness. She testified as follows: (1) she sold cocaine for defendant and another man for six weeks; (2) defendant employed five or six people to sell drugs, including Leonard’s sister and a juvenile; (3) she accompanied defendant on a trip to Chicago to purchase a large amount of cocaine; and (4) defendant possessed large amounts of cash. Defense counsel’s objection to Leonard’s testimony detailing the extent of defendant’s drug dealing and the other people involved in selling the drugs was overruled.

On cross-examination, Leonard admitted she used and sold drugs, but she had never been charged with a crime and did not expect to be charged with any crime. She said she was unemployed, on welfare, and received $2,000 to $2,500 from the Interagency Task Force (ITF), a law enforcement agency, in exchange for her testimony against defendant. On redirect examination, Leonard testified she made the first contact with ITF. On re-cross-examination, she said she did not contact ITF out of the goodness of her heart.

Champaign County deputy sheriff Scott Swan also testified at sentencing. He said he executed a search warrant at defendant’s home and found a weapon and $4,929 in cash.

On August 21, 1991, defendant filed a motion to reconsider the sentence and vacate the bond forfeiture. Based on an agreement between the defense and the State, the court vacated the bond forfeiture. After a hearing, the court denied the motion to reconsider the sentence.

Defendant argues first that the trial court abused its discretion in considering evidence that he did not use drugs or alcohol as an aggravating factor in sentencing. Defendant’s presentence report indicated that he had “never consumed a drink of alcohol or tried any illegal drugs.” At sentencing, the prosecutor argued essentially that defendant is more culpable because he is a nonuser of drugs and alcohol. The court agreed that the fact defendant is not an addict, but was selling drugs in large quantities to users, is an aggravating factor to be considered. The court noted that defendant was on probation for a Class 1 controlled substance offense at the time he was arrested in the case at bar. The court also noted the State’s recommendation of 15 years’ imprisonment was in the midrange for a Class X felony (see Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)) and was “not inappropriate” under the circumstances. The court expressed surprise that the recommendation was not higher.

Drug and alcohol abuse have been found, under various circumstances, to be factors in both aggravation and mitigation. In People v. Downey (1987), 162 Ill. App. 3d 322, 338, 515 N.E.2d 362, 372, where the defendant had been convicted of armed robbery, the court noted drug addiction or alcoholism, in the light of the particular facts of the case, “may be mitigating factors to be considered in sentencing.” In People v. Center (1990), 198 Ill. App. 3d 1025, 1034, 556 N.E.2d 724, 729-30, the court indicated defendant’s nonuse of drugs or alcohol was a mitigating factor which the trial court had overlooked in determining whether the court’s sentence for burglary was excessive.

In People v. Smith (1991), 214 Ill. App. 3d 327, 574 N.E.2d 784, the court determined that the defendant’s alcohol and drug addiction did not fall within the mitigating circumstance that “there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—3.1(a)(4).) Rather, the court found defendant’s drug addiction could be considered an aggravating factor, because it was evidence of prior criminal activity and tended to refute other mitigating factors.

Defendant cites People v. Jackson (1990), 203 Ill. App. 3d 1097, 561 N.E.2d 1279, where the court held that a legal activity could not be used to enhance a sentence. There, the defendant was convicted of speeding although he protested at trial he could not have been speeding. He said his radar detector alerted him to the location of the officer, and he had then reduced his speed. In sentencing the defendant, the court considered defendant’s use of a radar detector to aid a person in violating the law without being detected by the police as an aggravating factor. On appeal, the court noted the use and purchase of a radar detector in Illinois is legal, and therefore, it could not be used to enhance defendant’s sentence.

Although the question of whether defendant’s nonuse of alcohol and illegal drugs can be considered as factors in aggravation does not appear to have been raised before in Illinois, we hold it is permissible for the court to do so under the circumstances. Defendant’s nonuse here is not evidence that he is a law-abiding citizen who made a mistake. He, as the State notes, has made a calculated effort to earn his living by trafficking in human misery, and he does not even have the excuse of supporting his own addiction. His non-use shows he is a more calculating individual who is deliberately taking advantage of others’ addiction for his financial gain. We recognize the third district’s decision in Jackson that a legal activity cannot be used to enhance a sentence, but we do not give it broad application. We conclude it is not analogous here. Illegal conduct is not all that can be considered in aggravation. For instance, under some circumstances lack of remorse by a defendant can be so considered. (People v. Ward (1986), 113 Ill. 2d 516, 499 N.E.2d 422; People v. McDade (1991), 219 Ill. App. 3d 317, 579 N.E.2d 1173.) Lack of remorse is not illegal conduct any more than was defendant’s nonuse of drugs here. The trial court did not err in considering defendant’s nonuse of alcohol or illegal drugs as an enhancing factor in sentencing.

Defendant next argues the trial court erred in considering the uncorroborated testimony of a former drug user and dealer at sentencing. Toni Leonard testified at the sentencing hearing of defendant’s drug-dealing activities; his use of others, including a juvenile, to sell the drugs; and a trip she took with him to purchase a large quantity of cocaine. Defendant notes that Leonard indicated she had sold drugs but did not expect to be charged with any crime. He argues this testimony that she would not be prosecuted gave her a strong motive to testify falsely.

The prosecutor, in his sentencing argument, repeated Leonard’s testimony that defendant had used a juvenile and numerous others to sell cocaine on a large scale. Defendant contends Leonard’s uncorroborated testimony should not have been considered as an aggravating factor, citing People v. LaPointe (1981), 88 Ill. 2d 482, 498-99, 431 N.E.2d 344, 351. Defendant maintains the trial court has a duty to determine whether the information given at a sentencing hearing is accurate and reliable before using such evidence in aggravation. However, the LaPointe court pointed out that there, sentencing evidence was properly received from a witness who, under the evidence, appeared to have been solicited by the defendant to commit a crime and had been subject to the rigors of cross-examination which greatly promoted the likelihood of the accuracy of that testimony. See also People v. Tompkins (1987), 155 Ill. App. 3d 380, 382, 508 N.E.2d 481, 483.

Here, Leonard’s credibility was impeached by her bias (incentive to help the State) and her admitted prior criminal conduct, but she was under cross-examination and her testimony at sentencing was not uncorroborated. Deputy Swan testified that in his search of defendant’s house, he found a large amount of cash, as Toni Leonard had indicated, and the defendant’s guilty plea gave credence to the strength of Leonard’s testimony against him. Moreover, much of Leonard’s sentencing testimony was free of the unreliable hearsay problems involved in People v. Crews (1967), 38 Ill. 2d 331, 231 N.E.2d 451, and People v. Washington (1984), 127 Ill. App. 3d 365, 468 N.E.2d 1285, also cited by the defense.

Finally, defendant contends the trial court failed to adequately consider the mitigating factors of his age, minimal criminal record, and the excessive hardship that a sentence of imprisonment would place upon his family. He notes he was only 22 years old when he committed the present offense; had no juvenile record; both his adult convictions were for nonviolent drug offenses; and he has five children, three of whom rely upon his income for support.

Defendant was convicted of a Class X felony. He was also found to be eligible for an extended-term sentence of up to 60 years’ imprisonment because of his previous conviction for possession of a controlled substance. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005—8— 2(a)(2).) His sentence of 15 years’ imprisonment was within the statutory limits. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(a)(3).) In addition, although the court did not expressly indicate its consideration of all mitigating factors and the weight assigned to each, the information on mitigating factors was included in the presentence report. The court indicated it had considered the report. Absent contrary evidence, we presume the trial court considered the mitigating factors. People v. Kyse (1991), 220 Ill. App. 3d 971, 975, 581 N.E.2d 285, 288.

Accordingly, for the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

STEIGMANN, P.J., and LUND, J., concur.


author: JUSTICE COOK

text:
      In re MARRIAGE OF MICHAL McCLOSKEY PEDERSEN, Petitioner-Appellee, and JOHN ROBERT PEDERSEN, Respondent-Appellant.
    Fourth District
    No. 4—92—0187
    Opinion filed December 17, 1992.

      Grosboll, Becker, Tice, Alvarez & Smith, of Petersburg (Eldon H. Becker, of counsel), for appellant.
    Charles L. McNeil, of McNeil & McNeil, of Mason City, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

Appellant John Pedersen appeals the order of the circuit court of Sangamon County denying his petition to terminate maintenance paid by him to appellee Michal McCloskey Pedersen. We affirm.

Appellant and appellee were married August 27, 1975. They adopted a daughter, Christopher Penny Pedersen, during the marriage. A judgment for dissolution of marriage was entered on May 1, 1987, pursuant to a marital settlement agreement. The agreement stated the following in regard to maintenance:

“D. That it has been agreed between the parties that the sum of One Thousand ($1,000) Dollars be paid each month by John Robert Pedersen to Michal McCloskey Pedersen; that such payment is to be applied on the monthly payment of mortgages of the parties and to compensate Michal McCloskey Pedersen and Christopher Penny Pedersen as maintenance.
It is understood by the parties that the $1,000 monthly payment is subject to change for a change of circumstances. In the event that the salary income of Michal Pedersen is increased, her compensation would be proportionately reduced, and in the event that the needs of the daughter increases, the compensation would, accordingly, be increased, and the child’s medical and dental insurance continue to be maintained by John Robert Pedersen.
E. *** It is further understood that in the event that the parties cannot agree on changes between themselves upon a change of circumstances, either party shall resort to the Court of the Judgment Order for a determination.”

The parties do not dispute that the question of modification must be determined in accord with section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Act), which provides in pertinent part:

“[T]he provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification and only upon a showing of a substantial change in circumstances.” Ill. Rev. Stat. 1989, ch. 40, par. 510(a).

Pursuant to an agreement reached by the parties in November 1989, the court entered an order on June 11, 1990, reducing appellant’s maintenance payments to $700 per month since Christopher was living with appellant. On July 11, 1990, appellant filed a second petition to modify the judgment of dissolution of marriage, again alleging: (1) Christopher resided with him from July 1988 to date, (2) he assumed all expenses of the child, including $2,600 toward college expenses, and (3) he purchased appellee’s equity in the marital home and assumed sole responsibility on the mortgage. The court, by docket entry of September 24, 1990, reduced maintenance to $500 per month.

On December 24, 1990, appellant filed the present petition to modify, again alleging the previously stated changed circumstances but also contending that appellee had turned down full-time employment since the judgment for dissolution and had made little effort to obtain appropriate employment. On February 19, 1991, appellant filed an amended petition to modify, alleging further that his National Guard income had been reduced and his financial situation had deteriorated to the point that his monthly expenses exceed his monthly income.

At the hearing on January 16, 1992, appellee testified that she resides in Lincoln and has a master’s degree in education. She had worked in the Springfield school district as a teacher’s aid for five years and received $8.10 per hour for dVz hours a day during the school year, with no paid vacation. Appellee also worked as a bus monitor one hour each weekday during the school year for $8.10 per hour. Appellee had applied for 10 positions in the past three years at school districts, an adult-care center, child-care programs, Lincoln Land Community College, Illinois Department of Corrections, and the Department of Children and Family Services. Appellee explained the Springfield school district had cut back on funding and a vacant position was often filled before the job became known to the public. She admitted she had not applied to schools in surrounding towns such as Delavan, Clinton, and Mason City but knew of nothing available in these areas.

Appellee testified she usually has 14 days off during Christmas. She had not sought part-time work at a department store or other similar establishment during this time since she would have to drive to Springfield, Decatur, or other larger cities and the travel expenses would not make the effort worthwhile. She worked as a waitress during the summers in Lincoln and had a babysitting job during the summer of 1990 earning about $2 per hour. She had not applied for other summer work. Appellee stated she was in good health and lived alone. She admitted that Christopher went to live with appellant in August 1988 and that she had not paid any child support to appellant. Appellee said she had sent money to Christopher for books and other expenses at college but she had not sent Christopher any money in the past year.

Appellant testified he resides in Petersburg and has worked as a helicopter pilot for the State of Illinois since 1986. Christopher initially attended Southern Illinois University in 1990 but had since transferred to Lincoln Land Community College and lives with appellant. Appellant testified that since Christopher moved in with him he has incurred more living expenses and paid $250 more on his medical insurance premium. He added he will have to provide Christopher with an automobile. Appellant is now remarried; his wife does not currently work. Appellant has a second job with the Illinois Coast Guard which consists of weekend work and a summer training session.

Appellant’s July 1990 affidavit listed gross monthly income at $3,093; his January 1992 affidavit shows a gross monthly income of $3,023. He explained his pay cut was due to decreased flight training in the National Guard and higher medical insurance premiums. Appellant testified his food expenses had gone up $150 a month, utilities increased $50 a month, and phone bill increased $30 a month from July 1990 to January 1992 due to having both his daughter and stepdaughter in the house. Appellant testified that both his travel expenses and auto expenses increased. When questioned about educational expenses for Christopher, appellant admitted he pays these from Christopher’s savings account which he (appellant) had funded with $10,000 he received from a trust on his mother’s side of the family. He did not list this money on his income affidavit. Appellant did not remember what year he received this money from the trust.

Appellant testified he and appellee own a house in Alabama. He has handled the rent and care of the house by agreement with appellee. The house is rented for $85 a month but he did not list this income on his affidavit because the money is used to pay costs of the property. He testified he and appellee purchased uncut, gem-quality diamonds for $27,000 during their marriage which are held in Massachusetts. In the last 12 months, appellant and his wife bought a tanning bed and a car for Christopher.

The court denied the petition to terminate maintenance and ordered appellant to continue making payments in the amount of $500 per month. He appeals, arguing appellee’s maintenance should be terminated since she has not shown a need for the maintenance to continue and has not fulfilled her obligation to seek appropriate employment to become financially independent.

The decision to modify or terminate maintenance is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. (Ingrassia v. Ingrassia (1987), 156 Ill. App. 3d 483, 492, 509 N.E.2d 729, 736.) Illinois courts have held the language in section 510(a) of the Act requiring a “substantial change in circumstances” more specifically to mean that a maintenance award “can be modified either when the needs of the spouse receiving alimony change or the ability of the other spouse to pay alimony changes.” (In re Marriage of Garelick (1988), 168 Ill. App. 3d 321, 326, 522 N.E.2d 738, 742.) Contrary to appellant’s argument, the party seeking modification of a maintenance order bears the burden of showing this change. In re Marriage of Zeman (1990), 198 Ill. App. 3d 722, 737, 556 N.E.2d 767, 775.

In order to determine whether and to what extent maintenance should be modified, a trial court should consider the same factors that it considers in making an initial award. (In re Marriage of Krupp (1990), 207 Ill. App. 3d 779, 792, 566 N.E.2d 429, 437.) Among the factors considered are the financial resources of the party seeking maintenance, the standard of living established during the marriage, the age and the physical and emotional condition of both parties, the ability of the spouse seeking maintenance to meet her needs independently, and the ability of the other spouse to pay. (See Ill. Rev. Stat. 1989, ch. 40, par. 504(b).) Here, we need only address the initial question whether maintenance should be modified since we conclude the order answering that question in the negative is supported by the evidence. The evidence from appellant’s affidavits of income and expenses indicate that, other than his alleged increase in expenses, he has not shown any change in circumstances since the last order that would justify a further modification of maintenance. The changed circumstances which appellant testified existed in July 1990 were dealt with in the September 24, 1990, order and cannot be the basis for further relief. It is well settled that a maintenance award is res judicata of the then-existing facts, and changed circumstances justifying modification of maintenance must occur after the award. (Zeman, 198 Ill. App. 3d at 733, 556 N.E.2d at 773; Sullivan v. Sullivan (1981), 98 Ill. App. 3d 928, 932, 424 N.E.2d 957, 960.) Courts in modification proceedings allow the parties to present only the evidence going back to the latest petition for modification in order to avoid relitigation of matters already settled. (2 H. Clark, The Law of Domestic Relations in the United States §17.6, at 277 (2d ed. 1987).) Appellant correctly states that Christopher now lives with him and that he now makes the mortgage payments. However, the maintenance order has already been modified to reflect those changes. Appellant failed to meet his burden of presenting changed circumstances sufficient to further modify or terminate the maintenance award beyond the last court order. A different result might obtain if the earlier proceedings had not actually resulted in a modification. Restatement (Second) of Judgments §13, Comment c, at 133; §24, Comment/, at 203 (1982).

Appellant filed three petitions for modification in 1990, two of which were successful. Only the most recent petition is before us, but we observe that it is improper for a petitioner to file a petition to modify maintenance every time some slight change occurs in his financial situation or that of his former spouse. A petitioner must wait to file his petition until the accumulating changes amount to a “substantial change” in circumstances. A trial court may eliminate merit-less petitions to modify from its docket by the same procedures used in other cases, such as motions to dismiss and motions for summary judgment. In ruling on such a motion the court may consider how recently the last petition was decided, whether modification was granted at that time, and- whether the current petition raises new matter or merely repeats allegations previously alleged. Dismissal of a petition as premature is no bar to a refiling if additional changes occur.

Appellant offered insufficient evidence of changed circumstances in appellee’s finances to merit termination or modification of maintenance. The judgment of dissolution of marriage did not designate the maintenance to appellee as time-limited or rehabilitative in nature and thus appears to have awarded the payments for an indefinite term. Maintenance for an indefinite term is appropriate where it is evident the recipient spouse is either unemployable or employable only at an income considerably lower than the previous standard of living. (In re Marriage of Haas (1991), 215 Ill. App. 3d 959, 964, 574 N.E.2d 1376, 1379.) However, even a spouse awarded indefinite maintenance has a good-faith obligation to work toward becoming self-sufficient. (Haas, 215 Ill. App. 3d at 964, 574 N.E.2d at 1379; In re Marriage of Lasota (1984), 125 Ill. App. 3d 37, 41, 465 N.E.2d 649, 652.) Appellee testified she had worked steadily since the dissolution of marriage and her income was not sufficient to cover her expenses. Her gross wages of $12,243.19 constituted her only earned income for 1991. She has over $6,000 in debts and her only assets include an individual retirement account valued at approximately $14,000 and a one-half interest in the marital property in Alabama and the investment diamonds. Although appellee was employed, the record supports the trial court’s determination that she remained unable to adequately support herself through her employment and that no substantial change of circumstances had occurred for her financially since the maintenance amount was last reduced.

Appellant further argues a party receiving maintenance is under an ongoing obligation to seek appropriate employment to become financially independent and that appellee is not actively seeking a higher paying position since she had only applied for 10 jobs in the past three years. While it is true the failure to make good-faith efforts to reach financial independence after a reasonable time might form the basis for reducing maintenance (Ill. Rev. Stat. 1989, ch. 40, par. 510(a); In re Marriage of Martin (1992), 223 Ill. App. 3d 855, 860, 585 N.E.2d 1158, 1162), the goal of financial independence “must be balanced against a realistic appraisal of the likelihood that the spouse will be able to support herself in some reasonable approximation of the standard of living established during the marriage.” (In re Marriage of Cheger (1991), 213 Ill. App. 3d 371, 378, 571 N.E.2d 1135, 1140.) The record indicates appellee had remained steadily employed since the dissolution, albeit at a very low paying position. Despite appellant’s allegation that a master’s degree should assure appellee a position of financial independence, the record indicates that she received that degree in 1978, long before the judgment of dissolution was entered. Thus, her master’s degree does not constitute a changed circumstance. (See In re Marriage of Whiting (1989), 179 Ill. App. 3d 187, 534 N.E.2d 468.) It may sometimes be that a person with a master’s degree will be better able than others to achieve financial independence, but that does not appear to be the case here. Appellee possesses appropriate training and skills but has been unable to capitalize on her abilities due to a lack of available positions. Although she is under a continuing obligation to search for employment that will enable her to become financially independent, appellant has not at this time proved changed circumstances from the time of the previous court order sufficient to modify or terminate maintenance.

For the foregoing reasons, we affirm the trial court’s denial of respondent’s petition to modify the judgment of dissolution of the marriage.

Affirmed.

McCULLOUGH and KNECHT, JJ., concur.


author: JUSTICE KNECHT

text:
    DECATUR IMAGING CENTER, Plaintiff-Appellee, v. DONALD AMES et al., Defendants-Appellants.
    Fourth District
    No. 4-92-0437
    Opinion filed December 10, 1992.

      Barr & Barr, of Decatur, for appellants.
    Edward Q. Costa and Rhonda L. Richards, both of Samuels, Miller, Schroeder, Jackson & Sly, and Mark S. Morthland, of Record, Finney, Jankowicz & Morthland, both of Decatur, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendants Donald and Debbie Ames appeal from entry of a judgment against them in Macon County circuit court for collection fees incurred by Donald’s medical provider, the plaintiff Decatur Imaging Center (Center). Defendants argue entry of the judgment is contrary to public policy because the agreement failed to specify how collection fees would be calculated. In the alternative, they argue the Center should have been required to establish the collection fees sought were reasonable. Although the agreement expressly informed defendants they would be liable for any related collection fees, the Center should have been required to show the amount of fees was reasonable. We remand for this determination.

On May 16, 1990, Donald received medical services from the Center. Donald signed a “patient information form” which included the statement he was responsible for service charges incurred but not paid for by his insurance provider. Donald also signed under the following provision:

“IN THE EVENT YOUR ACCOUNT IS PAST DUE MORE THAN 120 DAYS IT MAY BE TURNED OVER TO A COLLECTION AGENCY. IF THIS DOES OCCUR YOU WILL BE RESPONSIBLE FOR ALL FEES INCURRED BY [PLAINTIFF] FOR COLLECTION AND/OR ATTORNEYS.” See Appendix.

The charge incurred for the medical services totalled $720. Debbie Brunner, collection manager at the plaintiff company, testified she billed defendants monthly for these services. Her initial phone contact with defendants occurred in August 1990. She spoke with Donald and his wife Debbie after Donald referred her to Debbie. During both conversations she told defendants they owed the plaintiff company $720 and no payment had been made. Debbie told Brunner they were waiting for one of Donald’s doctors to fill out an attending statement.

Defendants’ unpaid account was referred to a collection agency November 2, 1990, because plaintiff company had received no payments from defendants. Brunner testified the Center incurred a collection fee of $360. Before referring the case to the collection agency she received no calls from defendants asking the Center not to turn over their unpaid account to a collection agent. Charles J. Schaab, director of the Center, also testified defendants had not contacted him to request their outstanding bill not be referred to a collection agency.

In January 1991, the Center received $576 from Donald’s insurance provider as payment toward the outstanding $720. The Center also received a letter in January from counsel for defendants. Brunner related a phone call she received from Donald before this letter was received. According to Brunner, Donald phoned on January 18, 1991, and said he would pay the remaining $144 for the service provided but would pay no additional fees. The letter was dated January 21 and indicated the enclosed check for $144 represented defendants’ payment in full for the May 1990 services. The Center refused to accept payment under these terms and returned the check to defendants. A notation by “Debbie” of the Center indicated because the bill was not paid in full, defendants’ counsel should contact a representative of Advantage Credit. It provided the name of a representative of the credit agency and the agency’s phone number.

Donald testified he did not know until October 1990 the bill to the Center remained unpaid because he had been hospitalized for an unrelated health problem for over 21lz months. He testified he spoke with a representative at the Center in late October about the outstanding account. The representative’s name was Debbie and she told him the bill must be paid as soon as possible and his account would not be turned over to a collection agency. Donald testified Debbie agreed to hold their account unpaid until they got the problem resolved, i.e., the need for a doctor’s signature indicating medically necessary service had been provided. On cross-examination Donald denied he phoned the Center and told its representative he would not pay the outstanding bill and he was hiring counsel.

Brunner testified in rebuttal on behalf of the Center. She identified a phone log which indicated all calls made and received from defendants. The log did not contain any notation of the phone call which defendant Donald alleged he had with Debbie, a representative of the Center. The log did indicate the phone conversations previously discussed.

It did not, however, indicate an additional phone conversation testified about during defendants’ case. Jim Cairns, an agent for Prudential Insurance Company, testified he spoke with Brunner on October 23 regarding defendants’ outstanding debt. At that time, he testified, nothing was said about sending the bill to a collection agency. The log indicates only a conversation with a Prudential representative on September 4, 1990, when the representative explained they were waiting on a statement from one of Donald’s doctors that the procedure performed in May 1990 was medically necessary. A second notation made on September 4 indicated the doctor’s office was contacted and reported finding no such requested report.

An October 12, 1990, notation indicates Brunner spoke with defendant Debbie. Debbie reported the statement was sent to the doctor, who would return it to Prudential. Brunner’s note indicates she told Debbie the account was over 120 days old and payment had to be made by next week to avoid a referral to a collection agency.

Plaintiff also submitted as an exhibit a statement directed to defendant Donald indicating the date, May 29, 1990, and noting “insurance filed.” The following line on the statement is dated July 9, 1990, and indicates “insurance will pay in two weeks.”

In February 1991, Advantage Credit and Collection Service, Inc., filed suit on behalf of the plaintiff company against defendants for $756 plus costs. The $756 represented the $144 balance on the original bill, a $360 collection fee, and $252 for attorney fees. No testimony was presented to establish what, if any, action was taken to receive full payment from defendants before filing suit. After a bench trial, the trial judge ruled in favor of the Center and held defendants were liable for $504 plus costs, i.e., the balance due, and the collection fee. He denied recovery of the $252 sought for attorney fees because the fees were not sufficiently established.

Defendants contend the trial judge’s award to the Center of collection costs is contrary to public policy because the Center provided no evidence the costs were reasonable. In the alternative, they argue according to principles of contract law the trial judge abused his discretion by awarding costs absent evidence of how the costs were calculated, what services were performed by the collection agency, the reasonableness of the charges, or that the Center mitigated its damages.

Although the Center does not direct us to evidence to counter defendants’ allegations, it contends the award of collection fees was proper and it had no duty to mitigate its damages.

Section 9(a) of the Collection Agency Act (Act) (Ill. Rev. Stat. 1991, ch. 111, par. 2012(a)) outlines reasons why disciplinary action may be instituted against debt collectors. Section 9(a)(29) states as a cause for such action, “[cjollecting or attempting to collect any interest or other charge or fee in excess of the actual debt or claim unless such interest or other charge or fee is expressly authorized by the agreement creating the debt or claim unless expressly authorized by law.” Ill. Rev. Stat. 1991, ch. 111, par. 2012(a)(29).

Defendants contend the patient information form signed by Donald did not expressly outline the nature of the collection and attorney fees for which defendant was liable if his outstanding bill to the plaintiff company was not timely paid. The Center argues section 9 of the Act applies only when the fees sought exceed the actual debt. Under this reading, section 9 of the Act does not apply because defendants’ initial debt was $720 and the collection fee was only $360, less than the initial debt. We reject this interpretation of section 9 of the Act.

Words in a statute should be interpreted to represent their plain and ordinary meaning. To ascertain a word’s ordinary meaning, we consider its dictionary definition. (People ex rel. Daley v. Datacom Systems Corp. (1991), 146 Ill. 2d 1, 15, 585 N.E.2d 51, 57; Kozak v. Retirement Board of the Firemen’s Annuity & Benefit Fund (1983), 95 Ill. 2d 211, 215, 447 N.E.2d 394, 396.) “Excess” is defined in general terms as an amount which goes beyond the necessary amount. Black’s Law Dictionary 504 (5th ed. 1979).

Section 9(a)(29) of the Act authorizes a collection agent to charge a fee “in excess of the actual debt” only when the agreement expressly authorizes such a fee. (Ill. Rev. Stat. 1991, ch. 111, par. 2012(a)(29).) This provision requires notice to consumers that a fee will be added to their original debt when their debt remains outstanding beyond its payment date. Its application is not limited to instances when the additional fee is greater than the original debt.

Defendants’ contention their agreement with the Center did not expressly authorize the additional $320 collection fee also fails. “Expressly” is defined, in part, as “in direct or unmistakable terms; explicitly; definitely; directly.” (Black’s Law Dictionary 522 (5th ed. 1979).) The form Donald signed stated if payment was not timely received, the account could be turned over to a collection agency and defendant would “be responsible for all fees incurred by [the plaintiff company] for collection and/or attorneys.”

This provision expressly informed Donald he would have to pay any fees incurred by the Center in its attempts to obtain payment for services. In addition, Donald’s claim he did not know until October that the bill incurred for medical services in May remained unpaid does not bolster his claim he did not know he would have to pay collection fees. His 2½-month stay in a hospital does not relieve him from paying his debts. We further note Debbie should also have known about the outstanding debt. Moreover, testimony by Brunner and the Center’s logbook establish defendants were informed before October 1990 their bill was unpaid. Defendants were bound by the signed agreement to pay the outstanding bill within 120 days from May 16, 1990.

Defendants also argue the Center’s attempt to collect both collection fees and attorney fees should not have been permitted. They compare the policy reasons for regulating collection agencies to reasons statutory law does not allow the collection of both collection fees and attorney fees in collecting on a check written with insufficient funds. When collecting on a check, both types of fees may be recovered if they are reasonable and if the case is not litigated. (Ill. Rev. Stat. 1991, ch. 26, par. 3—806.) Because attorney fees were not awarded in this case, defendants’ argument relating to an award of both collection and attorney fees is misplaced and need not be addressed.

Defendants’ argument the award of collection fees was contrary to section 9(a)(29) of the Act fails. (Ill. Rev. Stat. 1991, ch. 111, par. 2012(a)(29).) However, an additional contention raised by defendants provides reason to remand this case to the trial judge to determine whether the $360 collection fee was reasonable.

When seeking damages, the plaintiff must establish damages were sustained and there was a reasonable basis for calculation of the damages. (Keno & Sons Construction Co. v. La Salle National Bank (1991), 214 Ill. App. 3d 310, 312, 574 N.E.2d 151, 153.) Damages cannot be based on conjecture or speculation. (Wehmeier v. UNR Industries, Inc. (1991), 213 Ill. App. 3d 6, 34, 572 N.E.2d 320, 339.) The Center in this case failed to provide evidence of how the collection fee was calculated or that the fee was even paid by it to the collection agency.

An attorney who seeks fees for remedying problems between a creditor and debtor must show the fees sought are reasonable. The amount of time spent on the case, the attorney’s ability, and the complexity of the case establish the appropriate fee. (First National Bank v. Barclay (1982), 111 Ill. App. 3d 162, 163, 443 N.E.2d 780, 781; Quinsippi Corp. v. Bening (1982), 105 Ill. App. 3d 241, 242-43, 433 N.E.2d 1368, 1369.) Similarly, a creditor who uses a collection agent for remedying a problem with a debtor must also establish the fee for the collection service is reasonable by specifying the amount of time expended and the work performed.

We reject defendants’ argument the Center had a duty to mitigate its loss by accepting less than full payment for the unpaid bill and for collection and attorney fees. Defendants assumed responsibility for collection fees when Donald signed the patient information form. If the Center had accepted less than full payment it would have been estopped from later seeking the collection fee. Amoco Oil Co. v. Segall (1983), 118 Ill. App. 3d 1002, 1012, 455 N.E.2d 876, 883; Schultheis v. McWilliams Electric Co. (1991), 219 Ill. App. 3d 571, 576, 579 N.E.2d 1100, 1103.

A collection fee in this case was warranted. However, based on the lack of evidence of how the fee was calculated or that the Center paid it, the trial judge abused his discretion by awarding the Center $360 for collection costs. We remand for this determination.

Affirmed in part; reversed in part and remanded.

STEIGMANN, P.J., and LUND, J., concur.