author: JUSTICE WOODWARD PRESIDING JUSTICE UNVERZAGT,

text:
    ALFONSO DOCKERY, Deceased, by his Special Adm’r, Marian Dockery, et al., Plaintiffs-Appellants, v. ARCADIO F. ORTIZ, JR., et al., DefendantsAppellees.
    Second District
    No. 2-88-0830
    Opinion filed June 30, 1989.

      UNVERZAGT, P.J., dissenting.
    John T. Jursich, of North Chicago, for appellants.
    George E. Riseborough and Thomas K. Gerling, both of Brydges, Rise-borough, Morris, Franke & Miller, and David F. Pardys, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, both of Waukegan, and Cassidy, Schade & Gloor, of Chicago (Reid S. Jacobson, of counsel), for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiffs, Alfonso Dockery and Marian Dockery, filed a complaint in the circuit court of Lake County on October 10, 1986, against the defendant doctors alleging medical malpractice and loss of consortium after the amputations of Alfonso’s legs. After his death, Marian Dockery was appointed special administrator and substituted in his stead in this cause, and plaintiffs’ second amended complaint added wrongful death claims.

The court granted the defendants’ motions for summary judgment grounded on the premise that plaintiffs’ claims were time barred, and plaintiffs appeal.

Plaintiffs contend the court erred in granting summary judgment where the only pleadings and affidavits which properly could be considered by the court showed that a genuine issue of material fact existed: that is, whether plaintiffs knew of their injury and its wrongful causation as of February 1985, as contended by plaintiffs, or as of May 1984, as contended by the defendants. If the former, plaintiffs’ complaint was timely; if the latter, it was barred by section 13 — 212 of the Limitations Act (Act) (Ill. Rev. Stat. 1985, ch. 110, par. 13— 212(a)). Plaintiffs argue the court improperly considered unauthenticated excerpts from depositions in reaching its decision that plaintiffs knew or reasonably should have known of their injury and its wrongful causation by May 11, 1984, the date Alfonso Dockery’s left leg was amputated.

The plaintiffs’ statement of facts is unacceptable; it does not even mention the fact a motion for summary judgment was filed or that the court entered judgment on same in favor of the defendants. Pursuant to Supreme Court Rule 341 (113 Ill. 2d R. 341(f)), appellees provide a more complete statement of facts. The following facts are a synthesis of the facts set forth by the parties and the pleadings. No reports of proceedings of the hearings on the summary judgment motion and the plaintiffs’ subsequent motion to strike and to vacate have been filed.

Although plaintiffs claim there are no undisputed facts, it is undisputed that the plaintiff experienced pain in his left foot and was hospitalized at St. Therese Medical Center and Hospital in Waukegan, Illinois, on October 4, 1982, under the care of the defendants. On October 11, defendant Dr. Ortiz performed aortofemoral and femoropopliteal bypasses. Alfonso continued to have pain and went to St. Joseph’s Hospital in Marshfield, Wisconsin, where additional bypass surgeries were performed on December 9 and December 16, 1983, by Dr. Mark Swanson. Plaintiff’s pain was 100% relieved following these surgeries.

On May 1, 1984, plaintiff suffered severe pain in both legs after attempting to remove an automobile tire from its rim. He went to the emergency room at St. Therese Medical Center and Hospital (St. Therese Hospital) in Waukegan and was admitted there under the defendants’ care until May 5. On May 5, he was admitted to St. Joseph’s Hospital in Marshfield, Wisconsin. Bypass surgery was performed there on May 6, which was unsuccessful, and plaintiff’s left leg was amputated five days later, on May 11. Subsequently, in November 1984, his right leg was also amputated.

Plaintiffs’ medical malpractice complaint against the defendants for treatment rendered during the period October 1982 to May 1984 was filed on October 10, 1986. Defendants filed a motion to dismiss pursuant to section 2 — 619 of the Civil Practice Law on the ground the action was not commenced within the two-year time period prescribed by section 13 — 212 of the Act. (Ill. Rev. Stat. 1985, ch. 110, pars. 2 — 619(a)(5), 13 — 212.) Defendants alleged that inasmuch as plaintiff’s left leg was amputated above the knee at St. Joseph’s Hospital on May 11, 1984, he knew, or through the use of reasonable diligence should have known, of the alleged cause of action as of that date. The motion was supported with affidavits of defendants Ortiz, Agujar, and Allian, each of whom averred he neither consulted with nor treated Alfonso Dockery for any reason following his discharge from St. Therese Hospital on May 5, 1984.

Plaintiffs’ response denied they knew or reasonably should have known that medical malpractice had been committed from the mere fact of the amputation and that the cause was filed within the four-year outside limit prescribed in the Act. (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212(a).) Plaintiffs’ response was supported by- the affidavit of Alfonso Dockery in which he averred he was 56 years old, had 11 years of education, did not graduate from high school, and spent his entire life doing factory work. He further averred that from October 1982 to February 1985 he had numerous surgical procedures and amputations which resulted in the loss of both his legs at the hip and that until February 1985 he believed he lost his legs due to his diabetes which, he averred, was the opinion of Dr. Arcadio Ortiz that was related to him in October 1982. Plaintiff averred additionally that from May 1984 to April 1985 he was heavily sedated for pain and was not aware until January or February 1985 that he had lost both his legs and that such loss may have been due to a mistake made by the doctors. Plaintiff averred he never sued anyone, and he did not know until August 1986 that a doctor could be sued for a mistake. Because the plaintiffs had filed a counteraffidavit to the defendants’ motion to dismiss and had filed a jury demand, the court denied the defendants’ motion to dismiss. Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619(c).

Defendants’ answer to plaintiffs’ second amended complaint raised the affirmative defenses of the statute of limitations and that the loss of plaintiff’s legs and his death were due to his arteriosclerosis and cardiovascular disease. Plaintiffs’ answer to defendants’ first affirmative defense was that plaintiff did not learn of the medical malpractice until approximately February 1985 and had no reason to suspect medical negligence until that time. Plaintiffs denied defendants’ second affirmative defense, stating the cause of death was the proximate result of the medical negligence alleged in the complaint. Thereafter, plaintiffs voluntarily dismissed counts V and VI of their complaint for wrongful death on behalf of their adult children.

Defendants then filed a motion for summary judgment. It alleged plaintiffs knew or reasonably should have known of the existence of their injuries and their wrongful causation no later than May 11, 1984, either because the amputation of plaintiff’s left leg on that date was a traumatic event which triggered the running of the limitations period, or because the history of plaintiff’s medical treatment indicates he was dissatisfied with defendants’ medical care inasmuch as he sought treatment twice in another medical facility several hundred miles from his home after receiving treatment from the defendants. The motion was supported with excerpts of Marian Dockery’s and Dr. Arcadio Ortiz’ depositions and copies of St. Joseph’s Hospital operative reports which tended to establish (1) plaintiff’s left foot pain did not diminish after the Ortiz surgery in October 1982 at St. Therese’s in Waukegan but, rather, it increased and spread into his left leg; (2) he felt “100% fine” after additional bypass surgery performed at St. Joseph’s in Marshfield in December 1983; and (3) after his admission to St. Therese’s on May 1, 1984, for tremendous pain and numbness in both legs, plaintiff’s left leg began to turn progressively darker and cold to the touch, his pain increased during the next four days, he was alert and coherent during that time, he was transferred to St. Joseph’s in Marshfield, where bypass surgery was performed on May 6, and his left leg was amputated above the knee on May 11,1984.

Plaintiffs’ response to defendants’ motion for summary judgment admitted plaintiffs knew of their injury but denied they knew of its wrongful causation. They argued that plaintiff, who had achieved only a twelfth-grade education and was engaged in labor activities all his life, could not reasonably have known that the amputation of his left leg in May 1984 may have been wrongfully caused by the defendants’ malpractice. Plaintiffs’ response was supported by excerpts of Marian Dockery’s deposition, the October 11, 1982, operative report of Dr. Ortiz, and a report prepared by his family physician, Dr. Gerard Pierre-Jerome, which established (1) that Alfonso Dockery was told by Dr. Ortiz that if he did not have surgery, he might eventually have to lose a leg and that the diabetes was contributing to his condition; (2) after the October 1982 surgery, Dr. Ortiz told plaintiff that the pain would take time to go away; and (3) his leg felt better after the additional bypass surgery at Marshfield until May 1984 when he used his feet to try to get a tire off a rim. Plaintiffs argued his continued pain and the additional, as opposed to corrective, bypass surgery performed in Marshfield in 1983 were not sufficient to reasonably put him on notice of any wrongful causation, particularly where Dr. Ortiz “predicted” in October 1982 that he may eventually lose a leg because he had diabetes and occluded arteries.

Defendants’ reply to the plaintiffs’ response noted that the reasonable-man standard requires an objective, not subjective, analysis. Further, the facts that plaintiff’s pain worsened during the four days in May 1984 when he was under the defendants’ care and that he transferred several hundred miles away to Marshfield for treatment “clearly indicate[d] that the plaintiff felt that he may have received improper care or diagnosis” under the defendants’ care. Defendants’ reply was supported by reference to, rather than copies of, excerpts of the depositions of the two doctors who treated the plaintiff in Marshfield, Drs. Swanson and Duffy. The excerpts established that plaintiffs were aware of their potential claim against the defendants in May 1984 when plaintiff transferred from St. Therese’s. Specifically, defendants represented that Dr. Swanson was deposed as follows:

“Q. Were you at the hospital waiting for Mr. Dockery when he arrived?
A. I believe I was.
Q. And, what did you find when he arrived?
A. Well, I found a guy with both legs that were dying, a pretty sick man. Accompanying him was an arteriogram which showed occluded aorta and a pretty desperate situation. •í-
Q. Did you have an opportunity to discuss with Mr. Dockery, your plan at that time?
A. Yes, I did.
Q. And what did you tell him?
A. I told him I thought we had a desperate situation, that I was almost sure he was going to lose probably both legs. What I was concerned about is the level of his ischemic sign was getting so high that he might end up clear up into his hips. That I hoped [ — ] that I thought we ought to try something to get blood flow back there to try to save as much of his legs in terms of from the hip down as that was possible. But I thought there was a tiny outside chance we might be able to save one leg and, you know, even less of an outside chance to save the left leg which already had problems. * * *
Q. Doctor, did Mr. Dockery or his wife ever indicate to you that they were dissatisfied with the care Mr. Dockery received in May of 1984 at St. Therese?
A. Yes.
Q. Can you tell me what they said?
A. Just in a general way. He just couldn’t understand why he laid [sic] in the hospital for four and a half days hurting.
Q. That was Mr. Dockery that said that?
A. Yes.
* * *
Q. Did you ever suggest to him that he was at St. Therese longer than he should have been?
A. Indirectly, I suspect I did. I don’t think I did directly. I did suggest to him that, you know, when you have the kind of problem he does, the quicker it’s fixed the better chance you have to do things.
Q. And, you discussed this with Mr. Dockery you said?
A. I’m sure I did. I mean, you know, when I have to tell him I don’t know if I can work or not because this is five days after the fact that it will make things worse, what are you going to say?”

Additionally, defendants represented that Dr. Duffy testified during deposition as follows:

“Q. Doctor, at any time during that admission, did Mr. Dockery complain about the care he had received by any of the physicians in the Waukegan area?
A. Well, I don’t recall that I noted anything like that specifically. His general attitude like when he first came was that things weren’t explained to his satisfaction and he wasn’t sure things were proceeding as they should and he was reluctant to be transferred back very soon.
Q. Back to Waukegan for further care?
A. Well, back to the Chicago area anyway.
Q. So, he expressed to you at some point that he did not receive an adequate explanation of his care or of his condition? Obviously, I am not asking for direct quotes. I’d like your best recollection.
A. Something to that effect, yes.
Q. Did you have any opportunity to speak to Mrs. Dockery at any time during the course of your treatment of Mr. Dockery?
A. Yes. I think I met her several times.
Q. Do you recall whether or not she had any complaints regarding her husband’s care in Waukegan?
A. I can’t recall that I talked about that with her. It was obviously very inconvenient for the family to continue visiting and caring for him and being with him in the hospital up here during his multiple hospitalizations. If they didn’t agree with him, I am sure they would have pressured him to go to a more geographically convenient location.”

After argument, the court granted the defendants’ motion for summary judgment, finding that the facts clearly showed that plaintiff reasonably should have known as of May 1984 that a connection existed between his injury and the defendants’ treatment of him. Thereafter, plaintiffs moved to strike the deposition attachments to the defendants’ motion for summary judgment inasmuch as they were not certified and were contrary to the requirements of Supreme Court Rule 207. (107 Ill. 2d R. 207.) In their contemporaneously filed motion to vacate summary judgment, plaintiffs argued there were no admissions, affidavits, or depositions on file which would negate the genuine issue of material fact raised by virtue of the complaint and answer.

Defendants responded, noting plaintiffs were aware the original transcripts of Drs. Swanson’s and Duffy’s depositions were unavailable at the time motion for summary judgment was filed. Moreover, they argued, plaintiffs did not raise this objection at any time before the court ruled on the summary judgment motion, and, in fact, had presented no challenge to the authenticity of the depositions. Defendants also filed a motion for leave to file the complete, signed, and certified deposition transcripts of Drs. Swanson and Duffy.

The court denied the plaintiffs’ motion to strike the deposition attachments and granted defendants leave to file the original deposition transcripts instanter. The court also denied plaintiffs’ motion to vacate its summary judgment, stating it did not consider the instant certified depositions in rendering summary judgment. Plaintiffs’ notice of appeal was timely filed.

A court will grant summary judgment when the pleadings, depositions, admissions on file, and affidavits present no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240; Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005(c).) That is, summary judgment is appropriate when there is no dispute as to any material fact but only as to the legal effect of the facts. (First State Bank v. Busse (1984), 126 Ill. App. 3d 577.) The purpose of summary judgment is not to try a question of fact, but to determine whether one exists. Addison v. Whittenberg (1988), 124 Ill. 2d 287, 294.

In determining whether a summary judgment is appropriate, the trial court must construe all pleadings, depositions, admissions, and affidavits strictly against the moving party and liberally in favor of the opponent. (Dodd v. Cavett Rexall Drugs, Inc. (1988), 178 Ill. App. 3d 424, 432.) The party moving for summary judgment must affirmatively show a clear legal right thereto free from doubt, and if any facts upon which reasonable persons may disagree are identified, or inferences which may be drawn from those facts lead to different conclusions, the court must deny the motion and direct that resolution of those facts and inferences be made at trial. (LaSalle National Bank v. Illinois Housing Development Authority (1986), 148 Ill. App. 3d 158.) The reviewing court’s sole function on appeal from a grant of summary judgment is to determine whether the trial court correctly ruled that no genuine issue of material fact had been raised and, if none was raised, whether judgment correctly was entered as a matter of law. (Coleman v. Windy City Balloon Port, Ltd. (1987), 160 Ill. App. 3d 408, 416.) An order allowing summary judgment will be reversed on appeal if the reviewing court determines that a genuine issue of material facts exists. Addison, 124 Ill. 2d at 294.

The relevant Illinois limitations statute provides that actions for damages for injury or death against any physician or hospital must be brought within two years after the date on which the claimant knew, or through the use of reasonable diligence should have known, that the act or omission or occurrence alleged in such action was the cause of such injury or death and in no event may such action be brought more than four years after the date of that act or omission or occurrence. (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212(a).) The effect of this “discovery rule” is to postpone the starting of the period of limitations until the injured party knows or should have known of his injury (Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, 40; Kinsey v. Scott (1984), 124 Ill. App. 3d 329, 339) and also knows or reasonably should have known that it was wrongfully caused (Nolan v. JohnsManville Asbestos (1981), 85 Ill. 2d 161, 169; Witherell v. Weimer (1981), 85 Ill. 2d 146, 156; Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223). These are two different elements, and they need not be concomitant. (Skoglund v. Blankenship (1985), 134 Ill. App. 3d 628, 631.) The term “wrongfully caused” does not mean that one must have actual knowledge of negligent conduct or knowledge of the existence of a cause of action before the statute may be triggered. (People ex rel. Skinner v. Graham (1988), 170 Ill. App. 3d 417, 429.) The statute of limitations begins to run “when there is a concurrence of the actual or constructive knowledge of both the physical problem and the possibility that someone is at fault for its existence.” (Roper v. Markle (1978), 59 Ill. App. 3d 706, 710.) “At some point the injured person becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved.” (Emphasis added.) Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 416.

The discovery rule is not applicable in determining when the statute of limitations begins to run in a case where the plaintiff is injured by a sudden traumatic event. An action to recover for personal injuries resulting from a sudden traumatic event accrues when the plaintiff first knew of his right to sue, i.e., at the time the injury occurred. (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418.) “The question of when a party knew or reasonably should have known both of an injury and its- wrongful cause is one of fact, unless the facts are undisputed and only one conclusion may be drawn from them.” Nolan, 85 Ill. 2d at 171, citing Wither ell, 85 Ill. 2d at 156; Kirksey v. Trefzger (1988), 175 Ill. App. 3d 891, 896.

Since there is no dispute in this case that plaintiff discovered his injury in May 1984 after his admission to St. Therese’s Hospital, we need only determine whether plaintiff discovered or should have reasonably discovered that his injury was wrongfully caused by the treatment administered or not administered by the defendants.

The trial court here found “the facts clearly show that [plaintiff] reasonably should have known that as of May 1984, a connection existed] between his injury and the treatment given him by the defendants.” Its judgment was based on the “traumatic event” of the loss of plaintiff’s left leg above the knee at that time and the fact that the plaintiff’s course of conduct in seeking treatment elsewhere after being in the defendants’ care shows that plaintiff was dissatisfied with his treatment at their hands. Thus, he reasonably should have known that his injury was wrongfully caused.

We disagree with the trial court’s finding that the amputation of the plaintiff’s leg was a sudden traumatic event which should have prompted some investigation by the plaintiff and thus triggered the application of the discovery rule. (Nordsell v. Kent (1987), 157 Ill. App. 3d 274; see also Lutes v. Farley (1983), 113 Ill. App. 3d 113, 115.) The traumatic event in both Lutes and Nordsell was a stillborn birth. In the case before us, plaintiff’s injury was not the sudden, unexpected type of injury suffered in those cases, inasmuch as plaintiff here had a history of vascular disease and diabetes which in the past had particularly affected his legs. Consequently, we believe that the discovery rule must be applied in determining when plaintiff knew or reasonably should have known of his injury and its wrongful causation.

Defendants contend that plaintiff knew or reasonably should have known as of May 1984 that a connection existed between his injury and the defendants’ wrongful treatment, based upon the following: (1) plaintiff’s move from St. Therese’s Hospital to Marshfield, Wisconsin, in October 1982, which indicated his dissatisfaction with the defendants’ medical care; (2) that in May 1984, plaintiff again sought treatment in Marshfield, Wisconsin, and at that time, indicated his dissatisfaction with defendants’ care; and (3) that on May 1, 1984, when plaintiff was admitted to St. Therese’s Hospital, he was in great pain, had numbness in both legs, and his left leg was turning darker and cold and his pain increased during the next four days.

In response to defendants’ motion for summary judgment, plaintiffs denied that Alfonso had sufficient information to be aware of or to know that he suffered any wrongful medical treatment at the hands of the defendants based upon the following factors: (1) his leg felt better after the first surgery in Marshfield, Wisconsin, until May 1984; (2) that he was told by defendant, Dr. Ortiz, that if he did not have surgery, he might eventually lose a leg and that diabetes was contributing to his condition; (3) that Dr. Ortiz told him that the pain would take time to go away; and (4) Dr. Ortiz predicted in October 1982 that he might possibly lose a leg due to diabetes.

Plaintiffs contend that Alfonso Dockery reasonably did not know of the wrongful causation of his injury in view of his educational and occupational background and the fact that he was in constant pain which required medication. We agree with the dissent in this case that although the court in. Hayes v. Weyrens (1973), 15 Ill. App. 3d 365, cited by the plaintiffs, tested the plaintiff’s ability to reasonably know of her injury’s wrongful causation subjectively (i.e., with reference to her particular capabilities) rather than objectively (the capabilities of any person in general), the language of section 13 — 212 requires the plaintiff to use “reasonable diligence” in discovering his injury’s wrongful causation, an objective standard. (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212(a).) We further agree that plaintiffs’ latter contention is refuted by Marian Dockery’s deposition testimony that Alfonso was alert and coherent and understood that he was going to and did lose a leg.

The dissent in this case argues that even assuming arguendo that plaintiff should be tested by a subjective standard, Dr. Swanson’s deposition testimony effectively refuted Alfonso’s subjective inability to know of a possible link between defendants’ treatment of him and his injury. The dissent points to the excerpts of Dr. Swanson’s deposition testimony cited above in which Alfonso told him “[h]e just couldn’t understand why he laid [sic] in the hospital for four and a half days hurting”; that Dr. Swanson also testified that he told Alfonso that suffering from the kind of problem Alfonso had, “the quicker it’s fixed the better chance you have to do things”; and that Dr. Swanson was certain he discussed this with Alfonso because “when I [had] to tell- him I don’t know if I [sic] can work or not because this is five days after the fact that it will make things worse, what are you going to say?” The dissent also relies on this additional excerpt from Dr. Swanson’s deposition:

“Q. Did you ever suggest to Mr. Dockery or Mrs. Dockery that the physicians at St. Therese should have transferred him up quicker or done something at that facility?
A. I don’t think I directly addressed that problem, no. I— but — I don’t recall, I really don’t.
Q. But, you did tell him that the quicker he would have been sent out the more likely the problem—
A. (Interrupting) I did tell him the sooner you can fix one of these things the better chance you have of coming out with a successful result. * * *
Q. Were there any further discussions or any discussions, Doctor, at any time that you saw Mr. Dockery during which he either told you again tht [sic] he was dissatisfied with the manner in which he was treated at St. Therese or that you indicated that something else could have happened if he would have been transferred out quicker? * * *
A. I don’t recall discussing anything about the care down there with either one of them other than probably the first day or two when I said, you know, we’re going to have problems because of the length of the ischemia that he had.”

(“Ischemia” is defined as “local anemia produced by local obstacles to the arterial flow.” Random House Dictionary of the English Language 754 (1983).)

We disagree with the dissent’s “characterization” of Dr. Swanson’s testimony. Far from effectively refuting the contention that Alfonso did not know of a possible link between his injury and defendants’ treatment of him, even using the objective standard required under the statute, Dr. Swanson’s testimony strongly suggests that at the very best, he was uncertain of exactly what he told plaintiffs. While Dr. Swanson was certain that he had told Alfonso that the “sooner you can fix one of these things the better,” there is no indication as to what time period Dr. Swanson was referring to by this comment (see Saunders v. Klungboonkrong (1986), 150 Ill. App. 3d 56, 61), nor did Dr. Swanson ever discuss the care Alfonso received at St. Therese’s after the first day or two when he stated that there would be problems because of the length of the ischemia Alfonso had.

In Saunders v. Klungboonkrong, the plaintiff fractured his left humerus and collarbone in an automobile accident in 1967. A metal plate was used to repair the humerus. Plaintiff was referred to the defendant, Dr. Klungboonkrong (referred to in the opinion as Dr. Klung), in November 1978, when he began experiencing numbness in his left hand when it was exposed to cold weather. Dr. Klung diagnosed plaintiff’s problem as Raynaud’s disease phenomenon, a vasospastic disorder of the blood vessels possibly caused by the old humerus fracture site or plaintiff’s mild diabetic condition. Plaintiff saw Dr. Klung one other time for this same problem prior to April 1981. On April 26, 1981, Dr. Klung was called from the emergency room at Marshall Browning Hospital with regard to the plaintiff, who had come there complaining of numbness and aching in his left arm and hand, which had both turned white and red. Dr. Klung prescribed two vasodilating agents for him, and plaintiff’s condition improved thereafter without having taken any medication. Shortly after midnight on April 28, 1981, however, the plaintiff experienced excruciating pain in his left hand, which was white and cold. Plaintiff was advised by phone to take the medication. Two hours later, plaintiff’s wife told the doctor by phone the medicine was not effective, and she was advised by Dr. Klung that the plaintiff should relax and give the medication time to work.

Approximately three hours later, plaintiff went to the emergency room; Dr. Klung was called, and the plaintiff was admitted to the hospital. At 9:30 a.m., Dr. Klung visually examined plaintiff’s arm, left the room, and returned several minutes later, stating that plaintiff was being transferred to St. Louis University. Plaintiff was examined by Drs. Peterson and McBride on April 29, 1981; Dr. McBride concluded plaintiff’s left hand and forearm were markedly ischemic with irreversible tissue changes. Dr. McBride informed the plaintiff he would probably lose his arm “ ‘in light of the duration of the signs and symptoms.’ ” (Saunders, 150 Ill. App. 3d at 58.) Plaintiff’s left hand was amputated on May 11, 1981. In March 1982, plaintiff learned for the first time from Dr. Peterson that a person can only experience ischemia for four to six hours before the dying of tissue begins.

Plaintiff filed his complaint against the defendants on December 16, 1983. The trial court granted the defendants’ motion for summary judgment on the grounds the statute of limitations began to run on May 11, 1981, the date of the plaintiff’s “traumatic injury,” the amputation. That judgment was reversed, and the cause was remanded on appeal. The court determined the amputation, although a traumatic event, was not a traumatic injury which would trigger the running of •the statute, inasmuch as plaintiff had no reason to believe the removal of his hand was necessitated by anything other than nonnegligent organic causes. The court considered that when the doctors told plaintiff he would probably lose his arm “in light of the duration of the signs and symptoms,” plaintiff had no way of knowing the doctors were referring to the delay in treating his hand and arm on the morning of April 28, 1981, and he reasonably could have believed the doctors were referring to the length of time he had been having the numbness problem in general.

The dissent distinguishes Saunders on the basis that Dr. Swanson explained to Alfonso that he did not know if his treatment of him would work since it was “five days after the fact,” which the dissent characterizes as a clear reference to the sudden onset of plaintiff’s pain on May 1, after which time he was under the defendants’ care, and Dr. Swanson’s statement to Alfonso that “the sooner you fix one of these things the better chance you have of coming out with a successful result.”

We find Saunders to be dispositive of the result in the case before us. Defendants rely on the fact that Alfonso was unhappy with the treatment he received from the defendants based upon Dr. Swanson’s statement that Alfonso could not understand why he lay in the hospital for 41/2 days, as an indication that Alfonso then knew someone was at fault for his condition. That is but one inference that can be drawn. It might equally be as true that Alfonso’s complaints were due to the fact that the discomfort he was in had not been alleviated during his 41/2 days at St. Therese’s. Further, Dr. Swanson’s comments regarding the iVz-day delay in treating Alfonso are not conclusive on the issue of knowledge. Dr. Swanson spoke in terms of a “better chance” of having successful results, and given his medical history and the fact he had already been warned he could lose a leg, we cannot say conclusively that Alfonso recognized or should have known as a reasonable person that his condition was the fault of defendants.

Defendants rely on Blair v. Blondis (1987), 160 Ill. App. 3d 184, Conley v. Springfield Clinic (1985), 130 Ill. App. 3d 369, and Gaudynski v. Corbett (1980), 81 Ill. App. 3d 910, as cases in which plaintiff’s awareness of a physical problem, together with express dissatisfaction with his treatment and statements by other medical professionals, determined when the plaintiff should reasonably have known of his injury and its wrongful causation. Each case, however, is distinguishable from the case at bar.

In Gaudynski, the plaintiff underwent surgery for the repair of a fracture and developed an infection diagnosed as osteomyelitis in 1970. After a second surgery, he was still receiving treatments for the infection. In 1971, he underwent a third surgery to remove part of the bone in the hip area. His doctor told him that in the course of the third operation, the bone had been found to be infected and that plaintiff had osteomyelitis. Plaintiff had been told by medical personnel that such an infection could develop in anyone at any time. The reviewing court determined that when the plaintiff was informed in 1971 that he had osteomyelitis, at that point, plaintiff should have known his injury was caused by the improper care of the defendants.

In Conley, following the operation, the plaintiff complained of pain in her shoulder, and her shoulder drooped. She stated to the defendant’s nurse that the defendant had cut something he shouldn’t have. The reviewing court held that therefore plaintiff knew she was injured and attributed the injury to the defendant’s conduct.

In Blair, plaintiff, in January 1981, underwent an excision biopsy which resulted in the removal of approximately one-half of her left breast. Upon reviewing the results of the surgery, she became extremely upset and immediately solicited plastic surgeons to have reconstructive surgery performed. In February 1981, one such surgeon told plaintiff that it had been unnecessary for the defendant to remove so much tissue during the biopsy. The reviewing court upheld the jury’s verdict for the defendant on the basis that the information plaintiff received in February 1981 should reasonably put her on notice that her injury was wrongfully caused.

In each of the above cases, the facts demonstrate that plaintiffs either acknowledged by their conduct that they knew their physician was likely responsible for their injury or were given that information by other professionals. The facts in those cases lead to but one conclusion, that those plaintiffs knew or should have known that their injury was wrongfully caused, thus triggering the running of the statute of limitations.

As we stated previously, the defendants in this case, as the parties moving for summary judgment, must affirmatively show a clear legal right thereto, free from doubt, and if the inferences drawn from the facts of this case lead to different conclusions, then the motion for summary judgment was improperly granted, and the case must be returned to the trial court for resolution of those inferences at trial.

The facts in the case before us are not such as to cause fair-minded people to come to but one conclusion. (Kirksey, 175 Ill. App. 3d at 899.) It is correct that Alfonso was informed that the sooner he was treated the greater his chances for a successful outcome. However, the fact that his chances were better, had there been no delay, did not remove the possibility of amputation. Given the fact that he had already been told that he could lose his leg from diabetes, we cannot say that plaintiffs knew or should have known as of May 11, 1984, that his injury was due to wrongful acts of the defendants.

Based upon all of the foregoing, the judgment of the circuit court granting summary judgment to defendants is reversed, and this cause is remanded for further proceedings.

Reversed and remanded with directions.

NASH, J., concurs.

PRESIDING JUSTICE UNVERZAGT,

dissenting:

I dissent from the decision of the majority because I believe the trial court was correct in granting the defendants’ motion for summary judgment when the undisputed facts presented in this record admit of only one conclusion: that the plaintiffs knew or reasonably should have known both of their injury and its wrongful causation as of May 11, 1984. Therefore, the judgment of the trial court should be affirmed.

Plaintiffs argue Alfonso Dockery reasonably did not know of the wrongful causation of his injury in view of his educational and occupational background, and the fact he was in constant pain which required medication. Although the court in Hayes v. Weyrens (1973), 15 Ill. App. 3d 365, cited by plaintiffs, tested the plaintiff’s ability to reasonably know of her injury’s wrongful causation subjectively (i.e., with reference to her particular capabilities) rather than objectively (the capabilities of any person in general), the language of section 13 — 212 requires the plaintiff use “reasonable diligence” in discovering his injury’s wrongful causation, an objective standard (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212(a)).

Even assuming arguendo plaintiff should be tested by a subjective standard, Dr. Swanson’s deposition offered by defendants here effectively refuted plaintiff’s inability to know of a link between their treatment of him and his injury. As noted in the excerpts of Dr. Swanson’s deposition testimony, Alfonso Dockery told him “[h]e just couldn’t understand why he laid [sic] in the hospital for four and a half days hurting.” Dr. Swanson also testified he told Alfonso that when you have the kind of problem Alfonso had, “the quicker it’s fixed the better chance you have to do things.” Dr. Swanson was certain he discussed this with Dockery because: “When I [had] to tell him I don’t know if I [sic — presumably “it”] can work or not because this is five days after the fact that it will make things worse, what are you going to say?” Dr. Swanson’s deposition contains this further testimony:

“Q. Did you ever suggest to Mr. Dockery or Mrs. Dockery that the physicians at St. Therese should have transferred him up quicker or done something at that facility?
A. I don’t think I directly addressed that problem, no. I— but — I don’t recall, I really don’t.
Q. But, you did tell him that the quicker he would have been sent out the more likely the problem—
A. (Interrupting) I did tell him the sooner you can fix one of these things the better chance you have of coming out with a successful result. * * *
Q. Were there any further discussions or any discussions, Doctor, at any time that you saw Mr. Dockery during which he either told you again tht [sic] he was dissatisfied with the manner in which he was treated at St. Therese or that you indicated that something else could have happened if he would have been transferred out quicker? * * *
A. I don’t recall discussing anything about the care down there with either one of them other than probably the first day or two when I said, you know, we’re going to have problems because of the length of the ischemia that he had.”

Plaintiffs’ further contention that the pain and medication prevented Alfonso from realizing his injury was refuted by Marian Dockery’s deposition testimony that Alfonso was alert and coherent and understood that he was going to and did lose a leg.

Plaintiffs also contend they could not reasonably have known of the wrongful causation of their injury because the defendants told Alfonso he could lose his leg from diabetes. Marian Dockery stated in her deposition, however, that the defendants discussed with Alfonso that the diabetes was “contributing to his condition.” The “condition” to which Alfonso’s diabetes contributed was, according to Dr. Ortiz’s October 11, 1982, operative report, “occlusive peripheral vascular disease.” Further, Marian Dockery testified her husband did not want to have the first surgery in October 1982 but that the defendants told him “surgery was absolutely necessary or he would eventually lose a leg.” (Emphasis added.) She also testified the first time Alfonso learned he had diabetes was when the defendants recommended surgery to relieve his clogged arteries. Plaintiffs argue that the loss of plaintiff’s legs could reasonably have been viewed by him as the result of the defendants’ previously announced cause of diabetes rather than defendants’ negligence. Although the majority does not discuss it, plaintiffs claim the instant cause is “on all fours” with Watkins v. Health & Hospitals Governing Comm’n (1979), 78 Ill. App. 3d 468.

In Watkins, the plaintiff was being treated at Cook County Hospital for a kidney infection. In connection with one of the tests being performed on her, she was injected with a certain type of dye which caused her to develop blood clots. The clots ultimately necessitated the amputation of her right leg at the knee. The defendant’s motion to dismiss was granted on the ground the suit was time barred under the statute of limitations of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1973, ch. 85, pars. 8 — 101 through 8 — 103). On appeal, the cause was reversed and remanded after the court examined the issue under that statute of limitations as well as section 22.1 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, par. 22.1), codified since 1982 as the section presently being considered (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212).

The Watkins court subscribed to the view expressed in Kristina v. St. James Hospital (1978), 63 Ill. App. 3d 810, 813, that the classification of an injury as traumatic or nontraumatic, alone, is of no significance. Generally, if an injury is traumatic in nature, that is, immediate and caused by an external force or violence, the plaintiff knows or should know of his right to sue when injured. (Saunders v. Klungboonkrong (1986), 150 Ill. App. 3d 56, 60.) The more obvious an injury is, the more easily a plaintiff should be able to know of its wrongful causation. (Saunders, 150 Ill. App. 3d at 60; Pszenny v. General Electric Co. (1985), 132 Ill. App. 3d 964, 966.) The Watkins court, however, observing that plaintiff’s complaint alleged she was a known diabetic and the defendant should have known that blood clots could present future problems for her, found it was possible for the plaintiff to have her leg amputated and reasonably believe that it was caused by her diabetic condition rather than the hospital’s negligence in administering the dye test to her. (Watkins, 78 Ill. App. 3d at 472.) Referring again to Kristina, the Watkins court acknowledged that the nature and circumstances of an injury may be such that its cause is unknown or apparently innocent at the time it occurs, and that there was nothing in the pleadings to suggest that the plaintiff there reasonably should have become aware of the connection between the dye test and the amputation of her leg. Watkins, 78 Ill. App. 3d at 472.

I note at this point the majority has correctly concluded that Alfonso’s injury was not the type of traumatic injury that has been found to trigger the running of the statute of limitations and that the discovery rule must be applied.

Unlike Watkins, however, the pleadings, depositions, and exhibits here clearly show Alfonso reasonably should have been “on inquiry” as of May 11, 1984. The state of mind in May 1984 which prompted Alfonso to question why defendants left him “hurting” for four days in May 1984, combined with the information from Dr. Swanson that the “quicker” and “sooner” treatment is begun, the better the chance for success, and with Dr. Swanson’s explanation to him that it was “five days after the fact,” indicates there was a concurrence of knowledge of both the physical problem and the possibility that someone was at fault for its existence. Unlike the unrelated kidney infection/dye test and amputation in Watkins, the progression of the pain, darkening and coldness in Alfonso’s legs during the four days in May when he was under the defendants’ care was directly related. to whether Dr. Swanson would be able to restore circulation to his legs and prevent partial or total amputation.

For these same reasons, the majority’s reliance on Saunders v. Klungboonkrong (1986), 150 Ill. App. 3d 56, as dispositive of the instant cause is misplaced. In Saunders, the court considered that when the doctors told plaintiff he would probably lose his arm “in light of the duration of the signs and symptoms,” plaintiff had no way of knowing the doctors were referring to the delay in treating his hand and arm on the morning of April 28, 1981, and he reasonably could have believed the doctors were referring to the length of time he had been having the numbness problem in general.

In contrast here, Dr. Swanson explained to Alfonso that he did not know if his treatment of him would work or not since it was “five days after the fact,” a clear reference to the sudden onset of Alfonso’s pain on May 1 after which time he was under the defendants’ care. Dr. Swanson further indicated to Alfonso that when you have the kind of problem Alfonso had, “the sooner you can fix one of these things the better chance you have of coming out with a successful result.” Dr. Swanson’s reference to “one of these things” refers to what is indicated on his May 6, 1984, operative report (appended to defendants’ motion for summary judgment) as “total aortic occlusion” of Alfonso’s abdominal aorta which occlusion was shown on the arteriogram performed on plaintiff on May 4, 1984. Thus, although Alfonso’s diabetes may indeed have contributed to his vascular disease, he was informed that the sooner his immediate problem was attended to, the greater the chance for a successful outcome. Marian Dockery testified, in fact, that the decision to transfer Alfonso to Marshfield after four days in the defendants’ care in May was made by Dr. Pierre-Jerome because the doctor “felt it was necessary that [Alfonso] get attention as soon as possible.”

I believe there was a concurrence here of both the knowledge of the physical problem and the possibility that someone was at fault for its existence. I emphasize that plaintiffs need not actually have known of the defendants’ negligent conduct or the existence of a cause of action in order to trigger the running of the statute. (People ex rel. Skinner v. Graham (1988), 170 Ill. App. 3d 417, 429-30, referring, inter alia, to Knox, 88 Ill. 2d at 416.) They were, however, under an obligation as of at least May 11, 1984, “to inquire further to determine whether an actionable wrong was committed.” Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161,171.

For the reasons above, I conclude the court was correct in granting the defendants summary judgment where the undisputed facts presented by the record below admit of only one conclusion: that the plaintiffs knew or reasonably should have known both of their injury and its wrongful causation as of May 11, 1984. The judgment of the circuit court of Lake County should be affirmed. The majority’s decision to reverse for further proceedings — although an understandably empathetic application of the discovery rule in light of Alfonso’s tragic losses — nonetheless injudiciously softens the necessarily rigid perimetry of the statute of limitations, and, therefore, I dissent.


source: Caselaw Access Project

author: PRESIDING JUSTICE UNVERZAGT JUSTICE REINHARD,

license: Public Domain

text:
    THE TOWN OF LIBERTYVILLE, Plaintiff-Appellant, v. PATRICK CONNORS et al., Defendants-Appellees.
    Second District
    No. 2-88-0831
    Opinion filed July 7, 1989.

      REINHARD, J., dissenting.

      Charles J. Siemon, William D. McElyea, and James N. Azim III, all of Siemon, Larsen & Purdy, of Chicago (Gerald P. Callaghan, of counsel), for appellant.
    Conzelman, Schultz, Snarski & Mullen, of Waukegan (Murray R. Conzelman, of counsel), for appellees.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Pursuant to the Township Open Space Act (the Act) (Ill. Rev. Stat. 1985, ch. 139, par. 321 et seq.) plaintiff, Town of Libertyville (Libertyville), brought this condemnation action in the circuit court of Lake County against defendants, Patrick Connors, Cosmopolitan National Bank of Chicago, as trustee of trust No. 12398, and unknown owners. Libertyville sought to acquire the “future development rights” to two parcels of land owned by defendants and totaling 68.45 acres in size. The two parcels were separated by Guerin Road. Pursuant to section 2 — 619 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619), defendants filed a motion to dismiss, asserting that Libertyville lacked the authority to acquire an interest in the parcels. Following an evidentiary hearing, the trial court granted defendants’ motion. This appeal followed.

The property in question consists of two parcels of land separated by Guerin Road. The parcel on the south side of Guerin Road equals approximately 40 acres and adjoins property on the south and west owned by the Lake County Forest Preserve District. The parcel on the north side of Guerin Road is approximately 28.45 acres. Defendant Patrick Connors and his wife have resided on the subject property for 33 years. Connors keeps horses on the property, and at the time of the hearing on defendants’ motion to dismiss, he had 33 horses.

In connection with his horse operation Connors had two large barns, a tack room, two loafing sheds for protecting the horses in bad weather, two electric horse-walking operations, five outside pen-type stall buildings, 15 electric water tanks, several small paddock areas, and three major pasture areas on the parcel south of Guerin Road. The Connors’ home was located on one acre of this southern parcel. The northern parcel of Connors’ property consisted of one pasture with a paddock and a loafing-shed area. At the hearing, Connors presented photographs depicting the various facilities and equipment he used in his horse operation.

Connors also put into evidence applications he had made in 1974, 1975, and 1976 to the county assessor for farm valuation of his property and the notices of the establishment of that valuation. Additionally, Connors presented evidence of applications he had made to the Lake County building department in 1965 and in 1970 for construction of barns and the receipts he received, indicating that each building permit pertained to buildings with a farm or agricultural exemption. Connors testified that since 1971, as indicated on the 1974 application for farm valuation, the property was exempt for farm use. Connors related that because of the farm exemption, his taxes on the property were based on a much lower rate than what he would have to pay if he did not have the exemption.

The evidence showed that Connors had extensive experience playing polo and that he trained most of his horses for polo. Those horses that were unsuitable for polo Connors sold as jumpers or pleasure horses. Connors testified that he did not advertise the sale of his horses in the telephone book, in periodicals, or with a sign. According to Connors, advertising would not generate any buyers because those who purchase polo ponies either return to the same seller with whom they have previously done business or contact one to whom they have been referred. Connors related that any local polo players knew him and knew he sold polo ponies. Connors stated that income he derived from his horse farm was strictly due to the sale of horses. That income amounted to $5,500 in 1983, $6,500 in 1984, $11,200 in 1985, and $12,000 in 1986. With the exception of 1985, Connors’ expenses for maintenance of his horses during these years were greater than the income derived from the sale of horses. Connors presented no bills of sale, income tax returns, or other written records evidencing the sale of his horses.

Connors’ testimony revealed that he is the sole owner of an insurance business which he operates out of his home. The business has salaried employees. Connors stated that he maintained separate bank accounts for his insurance business. Connors had no separate bank accounts for his horse operation and stated that he commingled any finances from that operation with his personal finances. Connors had no salaried employees for the horse operation. When asked if he utilized a business return to report to the Internal Revenue Service (IRS) the income from the sale of his horses, Connors invoked the fifth amendment privilege against self-incrimination. Connors also invoked the fifth amendment in refusing to answer how he reported to the IRS his expenses for the horse operation.

Libertyville tried to introduce into evidence a petition for annexation to Waukegan filed by Connors a few weeks before the hearing on Connors’ motion to dismiss. Connors’ objection to the petition was sustained. Later in the hearing, Libertyville introduced the petition by way of an offer of proof. The petition showed that Connors as petitioner described both the parcel north of Guerin Road and the parcel south of Guerin Road as contiguous to the City of Waukegan. When Connors presented his case, he referred to the annexation on direct examination and testified that the annexation allowed him to continue all operations he had pursued in the past on his property, including his horse operation. On cross-examination Connors admitted that both parcels were contiguous for annexation purposes.

Subsequent to the hearing on Connors’ motion to dismiss, the trial court granted the motion, finding that the subject property, consisting of two parcels separated by Guerin Road, could not be considered as one area. According to the court, neither parcel, therefore, met the 50-acre requirement of the Act. (Ill. Rev. Stat. 1985, ch. 139, par. 322(b).) The court also found that the land owned by the Lake County Forest Preserve District adjacent to the parcel south of Guerin Road could not be used to compute the 50-acre minimum for that parcel. The court stated that if the acres of open land already acquired by Libertyville and lying adjacent to the parcel north of Guerin Road were added to Connors’ northern parcel, the total acreage of the northern parcel would still be less than 50 acres.

Additionally, the court determined that Connors’ property was exempt from acquisition by Libertyville because Connors’ use of the land as a horse farm constituted a farming and agricultural use within the meaning of the Act. Ill. Rev. Stat. 1985, ch. 139, par. 324.02.

Libertyville appeals, contending that: (1) the trial court erred in finding that the Act requires Libertyville to acquire land in individual parcels of at least 50 acres; (2) the trial court’s finding that Connors’ property is devoted to farming or agricultural use and therefore exempt from condemnation was against the manifest weight of the evidence; and (3) Connors failed to meet his burden of proving that the subject property qualified for exemption from condemnation under the Act.

We first address Libertyville’s contention that by bringing his motion to dismiss under section 2 — 619 of the Code, defendant Connors assumed the burden of proving that the subject property qualified for exemption from condemnation under the Act. Connors argues that the burden of proof was on Libertyville to show that it had the power to acquire Connors’ land. Had Connors filed a traverse and motion to dismiss we would agree with his contention. When a traverse is filed challenging a condemnor’s authority to condemn, the burden is on the condemnor to demonstrate its authority. (Department of Public Works & Buildings v. Keller (1975), 61 Ill. 2d 320, 324.) However, Connors filed only a motion to dismiss, and the party bringing a motion to dismiss has the burden of proving the affirmative matter which he asserts in that motion. (Davis v. Keystone Printing Service, Inc. (1982), 111 Ill. App. 3d 427, 434.) Therefore, it was Connors’ burden to prove his property was exempt from condemnation.

A motion brought pursuant to section 2 — 619 of the Code should only be granted if the affirmative matter asserted therein negates an alleged cause of action completely or refutes crucial conclusions of law or conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint. (In re Estate of Bajonski (1984), 129 Ill. App. 3d 361, 365.) In his motion to dismiss, Connors asserted that Libertyville did not have the authority to acquire the less-than-fee-simple interest in the subject property it sought because the property was not an area of land of 50 acres or more and because the property was used for farming or agricultural purposes. We believe Connors failed to establish that Libertyville did not have the authority to acquire his land.

Under the Township Open Space Act, a township with an open-space program has the power to acquire a fee or any lesser interest in open land or open space by purchase, condemnation, or other means. (Ill. Rev. Stat. 1985, ch. 139, par. 324.02.) Section 2(b) of the Act defines “open land” or “open space” as “any space or area of land or water of an area of 50 acres or more” which meets certain open-space criteria. (Ill. Rev. Stat. 1985, ch. 139, par. 322(b).) Connors’ property consisted of two parcels of land separated by a public road, Guerin Road. Connors presented evidence to show that each parcel was less than 50 acres in size. The parcel north of Guerin Road was approximately 28.45 acres and the parcel south of Guerin Road consisted of 40 acres. Thus, neither parcel alone met the 50-acre minimum of the Act.

We have very recently determined in Town of Libertyville v. Blecka (1989), 180 Ill. App. 3d 677, that a landowner’s property was subject to Libertyville’s right of eminent domain if the landowner’s land was a portion of a tract 50 acres or more being contemporaneously condemned by Libertyville or if the landowner’s land abutted or adjoined a tract of 50 acres or more already owned by Libertyville. (See also Town of Libertyville v. Ypma (1989), 181 Ill. App. 3d 305.) In the instant case, the property south of Guerin Road adjoins open land of more than 50 acres, but this land is owned by the Lake County Forest Preserve District. The parcel to the north of Guerin Road abuts or borders upon a tract of open space already acquired by Libertyville. However, it is apparent from Libertyville’s exhibit No. 8, which was a base map depicting, among other things, acquired open space, that the adjacent tract of open space was significantly smaller than Connors’ northern parcel of 28.45 acres. Thus, the northern parcel was not adjacent to a 50-acre tract already owned by Libertyville. As neither the northern nor southern parcel of Connors’ land abuts, adjoins, or lies adjacent to a tract 50 acres or more already owned by Libertyville, the individual parcels are not subject to Libertyville’s right of eminent domain on this basis.

However, if each parcel is considered a portion of one tract of land of 50 or more acres, wherein all parcels are being contemporaneously condemned, then, under Blecka, both Connors’ northern and southern parcels are subject to Libertyville’s right of eminent domain. Libertyville contends that although Connors’ property is separated by Guerin Road, the two parcels, which comprise 68.45 acres together, should be considered one tract.

In the instant case, defendant Connors treats the parcels in question as one area. Connors keeps horses on both parcels and moves them for pasturing and polo practice from one parcel to another across a narrow two-lane roadway. Additionally, equipment and facilities related to the general care of Connors’ horses are located on both pieces of property. Connors operates his property as a unit and even refers to it as a unit, maintaining that his horse farm comprises both parcels. We find Connors’ treatment of his property particularly significant in determining whether the property may be considered as one tract of land of 50 acres or more.

Libertyville points out that if individual parcels owned by a single owner cannot be separated in any way, the purpose of the Act and the types of programs the Act specifically authorizes would be defeated. “Open space,” as defined in the Act, includes any area where the restriction of development would “enhance the value to the public of abutting or neighboring highways.” (Ill. Rev. Stat. 1985, ch. 139, par. 322(b).) Listed among “open space purposes” is a preservation of “scenic roadways.” (Ill. Rev. Stat. 1985, ch. 139, par. 322(d).) Here, Libertyville seeks the development rights to Connors’ property on both sides of Guerin Road to preserve a scenic corridor along the road. Given the legislature’s references to the existence of roads in conjunction with open lands, we believe such an acquisition, under the particular circumstances of the instant case, is authorized by the Act. This decision, however, is limited to the facts of this case and should not be interpreted as allowing Libertyville to condemn individual parcels owned by a single owner which comprise less than 50 acres and which are separated by one or more parcels of land that have not been contemporaneously condemned or already acquired by Libertyville as open space.

This court’s recent decision in Egidi v. Town of Libertyville (1989), 181 Ill. App. 3d 542, held that the Town of Libertyville did not have power to voluntarily purchase two tracts of land separated by a 270-foot strip of land owned by Commonwealth Edison because the separated parcels were each less than 50 acres. In Egidi, it is clear there was no contiguity between the parcels sought to be acquired because they were separated by the 270-foot parcel owned by Commonwealth Edison. There was no attempt to show they were other than noncontiguous separated parcels. Thus, the court there was able to distinguish the factual situation from those cases under the Illinois Municipal Code which have held that mere roadway easements do not destroy contiguity.

The case at hand is distinguishable from Egidi because all that separates the defendants’ parcels in the instant case is the two-lane roadway. There is not a foreign ownership interposed.

In the law of municipal annexations, two parcels separated by a road, as in the instant case, could be considered contiguous, or connected, because of the common boundary of the road. (See Spaulding School District No. 58 v. City of Waukegan (1960), 18 Ill. 2d 526, 529.) The principles of contiguity from the law of municipal annexations would seem equally applicable in condemnation actions, especially in light of the fact the legislature has, by recent amendments to the Act, added the term “contiguous” to certain provisions (see, e.g., Pub. Act 85 — 1140, eff. July 29, 1988 (amending Ill. Rev. Stat. 1985, ch. 139, par. 324.04(a)) and set forth that it shall have the same meaning as it does for purposes of annexation under the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—1). We can infer from this direction that if the definition of “open space” included the term “contiguous,” that term would be interpreted in the same manner since a word which has a clearly defined meaning in one section of a statute ordinarily will be given the same meaning in another section of the same statute. United Consumers Club, Inc. v. Attorney General (1983), 119 Ill. App. 3d 701, 710.

We note that the record shows that Libertyville, by offer of proof, presented evidence in the form of a petition filed by Connors seeking to annex his property to the City of Waukegan. That petition, signed by Connors under oath, describes the subject property and states that it is contiguous to Waukegan. Included in the description of the property is the portion of Connors’ property lying south of Guerin Road. The trial court excluded this evidence and testimony related thereto. However, counsel for Connors during his case questioned Connors about the annexation and the permitted uses of property since the property’s annexation to Waukegan. On cross-examination, Connors admitted that the parcels north and south of Guerin Road were contiguous for purposes of annexation. In light of our preceding conclusion that the principles of municipal annexations may apply to condemnation actions and the fact that Connors’ counsel introduced testimony regarding the annexation, we believe the trial court erred in denying Libertyville’s request to put the annexation petition into evidence. The petition represented further proof of the fact that the property north of Guerin Road and the property south of Guerin Road were considered as one tract by Connors.

We conclude that if the Act can be construed as applying the principles of the municipal annexation and requiring that parcels owned by a single owner and totaling 50 or more acres must be contiguous, or connected, to be considered open space, the subject property meets this requirement. Likewise, if contiguity of parcels is not required, the subject property, which, although separated by a two-lane road, is treated as one unit of land by its owner, constitutes an area of 50 acres or more of open space. Under either interpretation, the subject property meets the requirements of “open space” as set forth in the Act.

Having found that the subject property is a tract of 50 acres or more, we must next consider whether the property is exempt from condemnation because it is used for agricultural purposes. Section 4.01 of the Act allows a township to acquire property by condemnation “except where the real estate qualifies for additional valuation under Sections 20a — 1 through 20a — 3 of the ‘Revenue Act of 1939’ because of its use for farming or agricultural purposes.” (Ill. Rev. Stat. 1985, ch. 139, par. 324.02.) Sections 20a — 1 through 20a — 3 of the Revenue Act of 1939 were repealed in 1983 (Pub. Act 83 — 347, eff. September 14, 1983 (repealing Ill. Rev. Stat. 1981, ch. 120, pars. 501a — 1 through 501a — 3)). But, statutes which adopt a particular provision of another statute by specific reference to the statute are unaffected by subsequent amendment or repeal of the incorporated provision; only the provision as it existed at the time of the adoption is incorporated into the adopting statute. (North Shore Sanitary District v. Pollution Control Board (1973), 55 Ill. 2d 101, 106; Kloss v. Suburban Cook County Tuberculosis Sanitarium District (1949), 404 Ill. 87, 94.) Thus, despite the fact that the instant action was brought subsequent to the repeal of section 20a — 1 of the Revenue Act of 1939, the criteria set forth in that provision for determining if the subject property qualifies for additional valuation because it is used for farming or agricultural purposes still apply.

The criteria set forth in section 20a — 1 provided that property qualified as farming or agricultural land if it was (1) more than 10 acres in area; (2) devoted primarily to an agricultural use for the three years immediately preceding the year when an assessment of the property was made; and (3) so used with the “intention of securing substantial income.” Connors contends that he operates a horse farm on the subject property and, therefore, uses his property for a farming or agricultural purpose with the intention of securing substantial income from farming activities. We believe the evidence presented by Connors at the hearing on his motion to dismiss was insufficient to prove this contention.

Connors has been raising, training, and riding horses on the subject property for many years. However, he did not establish that he had been doing these activities with an intention of securing substantial income. Rather, the evidence showed that although Connors kept approximately 30 horses on his property, he sold only one horse in 1983 for $5,500. For that same year he had expenses of $8,594.30. In 1984 he sold two horses for a total of $6,500 but had expenses of $6,567.47. In 1985 Connors sold two horses for a total of $11,200 with expenses of $9,406.83, and in 1986 he sold three horses for a total of $12,000 but had expenses of $16,735.06. In all, Connors had a net loss of more than $6,000 during 1983 to 1986.

By Connors’ own admission these expense figures did not include taxes on the property used to raise and maintain the horses or the electricity used for the horse operation. Additionally, the expense figures were not recorded in any type of ledger. Instead, Connors’ record of his expenses was based on the paid bills he had kept for 1983 through 1986. Connors presented no evidence to show that the aforementioned horse sales had occurred. He produced no bills of sale or other written financial records as proof of his purported horse business. Also, Connors admitted, keeping no separate bank accounts, stating that the finances from his horse operation were commingled with his personal finances. When asked if he used a business return in reporting to the Internal Revenue Service the income he received from the sale of horses, Connors claimed the fifth amendment privilege against self-incrimination. Likewise, when asked how he reported his expenses for the horse operation, i.e., as business deductions, Connors again invoked the fifth amendment privilege.

Connors stated that he did not advertise the sale of his horses because those interested in purchasing polo ponies knew of Connors’ operation. Libertyville presented evidence showing that other horse dealers advertised the sale of their polo ponies.

Connors testified that he employed no employees to help him with his horse “business,” but, instead, rose early each morning to feed and ride his horses. In contrast, Connors had been in the insurance business for 17 years, maintaining an office in town until he moved his office to his residence located on the subject property. Connors maintained separate financial records for his insurance business and also had salaried employees.

We do not believe that Connors established that he operated his horse business with the “intention of securing substantial income,” as required by the Act. (Emphasis added.) The Act does not define what constitutes “substantial income.” However, words used in a statute are to be given their ordinary and popularly understood meaning. (Hernandez v. Fahner (1985), 135 Ill. App. 3d 372, 381.) The ordinary meaning of “substantial” is “of ample or considerable amount, quantity, size, etc.: a substantial sum of money.” (The Random House Dictionary of the English Language 1418 (1983).) Here, where it was shown that during a four-year period of time, Connors did not obtain a “considerable amount” of money from the sale of his horses but rather incurred a net loss of more than $6,000, we do not believe that Connors established that he ran his horse business with the “intention of securing substantial income.”

Our conclusion is substantiated by Federal tax cases which have interpreted the phrase “intention of securing substantial income.” Since no Illinois cases, revenue statutes, or revenue regulations define what constitutes an “intention of securing substantial income” as set forth in section 20a — 1 of the Revenue Act of 1939, we can look to these Federal decisions for help in interpreting this phrase. Where there is a lack of Illinois precedent, courts will consult the decisions of Federal courts. People ex rel. Hartigan v. All American Aluminum & Construction Co. (1988), 171 Ill. App. 3d 27, 34; Fitzgerald v. Chicago Title & Trust Co. (1977), 46 Ill. App. 3d 526, 528.

In W. Jane Luce, 70 T.C.M. 980 (P-H) (1970), petitioner maintained that she was in the business of breeding and training horses for sale and that any losses from her “business” could be claimed as deductions on her income tax return. However, as the court pointed out, Luce’s venture was run in a most “unbusinesslike” fashion. Among other things, she kept no records of her operation except for cancelled checks and some assorted bills. Although she professed to be breeding and training horses for sale, she sold only two horses, and no real efforts were made to sell other horses. The court stated that Luce was a champion rider who had taken a personal interest in horses for most of her life, training them and teaching others to ride. The court said:

“She derived great pleasure and personal satisfaction from her activities, and while this fact does not prevent said activities from being pursued as a trade or business, it nevertheless indicates to some extent that training and breeding of horses may merely have been a continuation of her hobby.” 70 T.C.M. (P-H) at 982.

The court concluded:

“[T]he manner and conduct of the horse activities belie a genuine intent to make a profit. While she may have intended to sell some of her horses, we think this was only to defray the expenses of her hobby or to rid herself of horses which did not meet expectations. Her primary engagement was pursuing her life-long love and hobby of horses.” 70 T.C.M. (P-H) at 983.

The facts in the instant case are similar to those in W. Jane Luee. Connors is an accomplished polo player who has been riding horses all of his life. He keeps more than 30 horses on his property, riding, feeding, and caring for them but sells, on the average, two horses per year. He keeps no records of his operation other than paid bill receipts for his expenses and makes no efforts to advertise the sale of his horses despite the fact he operates his business at a loss. Further, Connors, like the petitioner in W. Jane Luce, pursued another business besides raising and training horses. We think it evident from these facts that Connors pursues his horse operation as a hobby and not with the intention of securing substantial income.

In Monfore v. United States, 77 T.C.M. (CCH) 86, 496 (1977), the petitioners, a physician with a full-time medical practice and his wife, alleged that they intended to produce income from vacation island property they owned in Canada. Among the factors considered by the court in finding that the petitioners lacked the true intent to profit from the use of their property as a commercial resort was the petitioners’ failure to keep written records of income or expenses for the property. The court also considered the fact that petitioners commingled funds for the property with their personal account and with Dr. Monfore’s medical office account. Although the property was operated at a continuous loss, the petitioners made no attempt at formal advertising and took no action to convert losses into profits.

These factors are also present in the instant case and further indicate not only that Connors had no intention of securing substantial income from his horse operation but also that his operation cannot be considered the primary use of the property. The primary use of Connors’ property was as a residence, and the horse activities carried on by Connors were primarily for his own recreation and pleasure rather than as a business enterprise.

In an attempt to show that the subject property was devoted primarily to an agricultural use, Connors put into evidence applications he filed with the Lake County Supervisor of Assessment for farm valuation of the subject property and notices of that valuation. However, as Libertyville points out, these assessments are irrelevant to the present action because they pertain to the years from 1971 to 1976. Connors put forth no evidence regarding the number of horses he kept on his property during those years or the amount of income earned from selling or training horses during that period. Consequently, a determination cannot be made concerning whether his activities from 1971 to 1976 were identical to those in 1986, when the condemnation action was brought, in terms of showing the “intention of securing substantial income” that was needed to obtain a farm valuation for the property. We note also that the notices of farm valuation allegedly issued by the county assessor do not identify the signer of the notices or identify the issuing body.

Also, the receipts Connors put into evidence from the Lake County Building Department, showing a farm exemption for certain farm buildings to be constructed on the subject property, are equally irrelevant. The receipts, dated 1965 and 1970, were issued prior to the time sections 20a — 1 through 20a — 3 were added in 1971 to the Revenue Act of 1939. Thus, these receipts cannot constitute proof that the subject property at the time of the issuance of the receipts met the criteria set forth in section 20a — 1.

We conclude that Connors failed to meet his burden of proving that his property is used with the intention of securing substantial income from his horse activities.

Having found that Connors has failed to prove that his property is used for farming or agricultural purposes, we need not consider Libertyville’s argument that the conservation easement, or less-than-fee interest, Libertyville wishes to acquire in the property cannot qualify for exemption from the Act because the property constitutes farm or agricultural land. A conservation right is a property interest distinguishable from the underlying fee (see Ill. Rev. Stat. 1985, ch. 30, par. 401) which the legislature may give a condemning body the right to acquire. (Department of Public Works & Buildings v. Keller (1975), 61 Ill. 2d 320, 324; City of Crystal Lake v. LaSalle National Bank (1984), 121 Ill. App. 3d 346, 353.) In section 4.02 of the Act, the legislature has given a township the right to acquire by condemnation a less-than-fee interest in real property that is open land. (Ill. Rev. Stat. 1985, ch. 139, par. 324.02.) As defendant Connors failed to disprove at the hearing on his motion to dismiss that the subject property is open land, Libertyville has the authority under the Act to acquire a conservation easement in the property.

Accordingly, the judgment of the circuit court of Lake County granting Connors’ motion to dismiss is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

LINDBERG J., concurs.

JUSTICE REINHARD,

dissenting:

In Egidi v. Town of Libertyville (1989), 181 Ill. App. 3d 542, 537 N.E.2d 369, this court considered an issue quite similar to that present in this case: whether two parcels, each less than 50 acres but when added together equal more than 50 acres, separated by a 270-foot right-of-way could be acquired under the Township Open Space Act (Act) (Ill. Rev. Stat. 1987, ch. 139, par. 321 et seq.). We held that, because the separate areas of land purchased did not adjoin or abut each other, the two parcels cannot be considered “an area of land” within the statutory definition contained in section 2(b) of the Act. (Egidi, 181 Ill. App. 3d at 545, 537 N.E.2d at 372.) The majority’s attempt to distinguish factually Egidi from the case at bar is not convincing. The court in Egidi further determined that “[t]he fact that these parcels would be considered contiguous under certain provisions of the Illinois Municipal Code [citation] is of no relevance here,” a holding which is also not followed in the majority opinion. (See Egidi, 181 Ill. App. 3d at 545, 537 N.E.2d at 372.) While the majority cites a recent amendment to section 4.02 of the Act which sets forth that “contiguous” shall mean contiguous for purposes of annexation under article 7 of the Illinois Municipal Code, the amendment was neither in effect at the time of the commencement of this condemnation suit, nor is that definition applicable to section 2(b) of the Act, but is expressly limited to the purposes of section 4.02 of the Act. Accordingly, the Town of Libertyville failed to establish that it sought to acquire an area of 50 acres or more within the meaning of section 2(b), and the circuit court correctly dismissed the suit.

One final note. This court has heard appeals in a series of cases in which the Town of Libertyville has sought to acquire land under the Open Space Act (see, e.g., Town of Libertyville v. Ypma (1989), 181 Ill. App. 3d 305, 536 N.E.2d 1275; Town of Libertyville v. Blecka (1989), 180 Ill. App. 3d 677, 536 N.E.2d 1271; Herbes v. Graham (1989), 180 Ill. App. 3d 692, 536 N.E.2d 164; Town of Libertyville v. First National Bank (1988), 178 Ill. App. 3d 591, 533 N.E.2d 54), and our decisions have not always been consistent (compare Town of Libertyville v. First National Bank (1988), 178 Ill. App. 3d 591, 533 N.E.2d 54 with Town of Libertyville v. Blecka (1989), 180 Ill. App. 3d 677, 536 N.E.2d 1271), which is further illustrated by the majority decision in this case and the decision in Egidi. Perhaps the issues raised in these cases are ripe for resolution by our supreme court as, in all candor, the interpretation of the Open Space Act and its constitutionality should be reexamined.


author: JUSTICE GOLDENHERSH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID H. DEAL, Defendant-Appellant.
    Fifth District
    No. 5-87-0512
    Opinion filed June 16, 1989.
    Rehearing denied July 18, 1989.

      Daniel M. Kirwan and Edwin J. Anderson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John R. Clemons, State’s Attorney, of Murphysboro (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, David Deal, appeals from the judgment of the circuit court of Jackson County finding him guilty of two counts of aggravated sexual abuse. (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12— 16(c)(1).) The court sentenced defendant to four years’ probation and fined him $9,600 plus costs. Defendant appeals and raises the following issues: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether the court erred in admitting into evidence detailed corroborating evidence of the child victim’s complaint; (3) whether count I should be vacated because it failed to state an offense and because evidence revealed there was only one act; and (4) whether the fine assessed must be reduced or vacated. This court affirms in part, reverses in part, and remands for resentencing.

On June 20, 1985, the State filed an information charging defendant with one count of aggravated criminal sexual abuse. (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12 — 16(c)(1).) Later the State amended the information, which stated:

“[Djuring the first week of April, 1985, to-wit:
COUNT I
AGGRAVATED CRIMINAL SEXUAL ABUSE In that the said defendant, who was seventeen (17) years of age or older, knowingly committed an act of sexual conduct with [L.E.D.] who was a child under thirteen (13) years of age when the act was committed, in that the defendant intentionally touched and fondled the defendant’s sex organ thereby masturbating in the presence of [L.E.D.] for the purpose of sexual gratification or arousal of the defendant, in violation of Illinois Revised Statutes, [1984 Supp.], ch. 38, sec. 12 — 16(c)(1).
COUNT II
AGGRAVATED CRIMINAL SEXUAL ABUSE In that the said defendant, who was seventeen (17) years of age or older, knowingly committed an act of sexual conduct with [L.E.D.] who was a child under thirteen (13) years of age when the act was committed, in that the defendant intentionally touched and fondled [L.E.D.’s] sex organ for the purpose of sexual gratification or arousal of the defendant, in violation of Illinois Revised Statutes, [1984 Supp.], ch. 38, par. 12— 16(c)(1).”

At the bench trial, the following evidence was adduced.

The victim, a minor, L.E.D., was seven years old at the time of the incident and was living with his mother, brother and grandfather in Carbondale. The family had just arrived in Carbondale when L.E.D. became acquainted with defendant. L.E.D. and defendant began to go to movies and other places together. L.E.D. also visited defendant’s home several times, where they watched television and played games.

A few months later while they were at defendant’s house, defendant asked L.E.D. if he wanted to earn some money. L.E.D. responded yes. At that time defendant took out some Playboy magazines and asked him how much he wanted to earn. L.E.D. said $5. At some point they went into the bedroom and defendant then began to masturbate in front of L.E.D. Defendant pulled L.E.D.’s pants down and held L.E.D.’s penis for two seconds while defendant continued to masturbate. Defendant stopped masturbating after he ejaculated. Afterwards, defendant took L.E.D. to Wal Mart so L.E.D. could buy a $5 toy and later took him out to eat.

About a month after the incident, L.E.D. told his mother. He did not tell her earlier because defendant told him that his mother would beat him (L.E.D.). After he told his mother, she called and talked to Sergeant Tim Moss, who interviews children who have been molested. L.E.D. talked with Sergeant Moss and a woman named Judy, but L.E.D. could not remember when he talked to them.

During cross-examination, L.E.D. stated that when he first talked to his mother, he denied that anything happened. He admitted what happened during a second talk with his mother. L.E.D. could not remember in detail what he told his mother. During the initial interview with Sergeant Moss, L.E.D. told him what happened except for defendant touching him. L.E.D. recalled not telling Sergeant Moss during a second taped interview about defendant touching him.

The State’s next witness was L.E.D.’s mother. From 1984 through 1985, she and her son and her father lived in Carbondale. While living there, she.became acquainted with defendant as L.E.D.’s friend. L.E.D. told her how the two met. The next day L.E.D. asked permission to visit defendant because he had lots of toys. As the friendship progressed, L.E.D. asked her permission to go to the movies or out to eat with defendant. She gave her permission because she thought it was a big brother-type relationship. Initially, L.E.D. was reacting positively but later he began acting very confused about his life.

During the first part of May 1985, she changed her feelings about defendant after a conversation with some Carbondale police officers. She also changed her feelings about defendant when she saw a television special about child molesters. She observed that defendant’s actions were as those described on the program. She then told L.E.D. about her feelings about defendant. She talked to Sergeant Tim Moss, who later talked to L.E.D.

Around mid-May, she confronted L.E.D. about her concerns regarding defendant. When she first confronted her son, he did not tell her anything. L.E.D. acted very scared, ashamed, as if he had done something wrong. He responded that they were doing things with their clothes off in defendant’s house. He told her about the day he brought home a $5 toy which was payment for watching and participating in acts without clothes. L.E.D. brought the toy home the Saturday before Easter Sunday of 1985. L.E.D. told her that he did not tell her earlier because defendant told him that she would beat him. On the following day, she kept L.E.D. home from school because he was so emotionally upset. She did not tell the school about the incident but did notify the police. A couple of officers came by the house and spoke to her about the incident. In June, she gave the police permission to interview her son.

Sergeant Tim Moss, who had been with the City of Carbondale police department for 14 years, was on an investigatory assignment in 1985 when he met L.E.D.’s mother. As a result of their conversation, he spoke with L.E.D. His first conversation with L.E.D. took place in the parking lot of the apartment in which L.E.D. and his family lived. After that conversation, he told L.E.D.’s mother to contact him if L.E.D.’s behavior continued.

On May 13, 1985, L.E.D.’s mother called him. He went to her house and spoke to her. On May 15, he interviewed L.E.D. at the police station and tape-recorded the interview. During cross-examination, Moss stated that L.E.D. did not mention that he exposed his sex organ to defendant. In one of the reports, L.E.D. stated that defendant touched his sex organ. L.E.D. did have problems with dates and could not give an exact date.

Defendant presented his only witness, L.E.D.’s second-grade teacher at the time of the incident. She stated that L.E.D. had an untruthful reputation at school. She would question any testimony of L.E.D.

During cross-examination, she stated that L.E.D. was not her star pupil because he had some behavior problems. She knew that he came from a low-income single-parent home and that his father was in prison. She stated that she had a close relationship with L.E.D. because she spent a great deal of time working with his behavioral problems.

On April 6, 1987, the court found defendant guilty of both counts. On June 22, the court sentenced defendant to four years of probation, fined him $9,600 plus costs and ordered restitution in the amount of $50. Defendant appeals.

I

Defendant’s first issue on appeal is whether he was proved guilty beyond a reasonable doubt. Defendant specifically argues that the testimony of L.E.D. taken as a whole does not create an abiding conviction of his guilt because his testimony was neither clear nor substantially corroborated. People v. Thornton (1971), 132 Ill. App. 2d 126, 129, 268 N.E.2d 887, 888.

In order to sustain a conviction of child molestation, the testimony of the victim must be clear and convincing or supported by other evidence. However, testimony of the victim alone is sufficient. (In re C.K.M. (1985), 135 Ill. App. 3d 145, 150, 481 N.E.2d 883, 887.) Testimony is clear and convincing when it is consistent and unwavering (People v. Krison (1978), 63 Ill. App. 3d 531, 535, 380 N.E.2d 449, 452) and when it is “unshaken” on cross-examination (People v. Dorsey (1965), 57 Ill. App. 2d 389, 395, 206 N.E.2d 762, 765). “It is not necessary that the testimony of the complaining witness be crystal clear and perfect in order to be deemed clear and convincing.” (People v. Server (1986), 148 Ill. App. 3d 888, 894, 499 N.E.2d 1019, 1024.) “Where the testimony of the victim is not clear and convincing, it must be substantially corroborated by some other factual evidence or circumstances.” 148 Ill. App. 3d at 895, 499 N.E.2d at 1024.

This court finds that L.E.D.’s testimony was clear and convincing. L.E.D. stated clearly how defendant befriended him, how defendant enticed him into the bedroom, and how defendant masturbated in front of him and then pulled L.E.D.’s pants down and touched his penis. His testimony did not change even under extensive cross-examination. L.E.D. did not express doubt or change his mind. Moreover, no evidence was adduced to show any motivation to lie. People v. Padfield (1974), 16 Ill. App. 3d 1011, 1014, 307 N.E.2d 183, 185.

Although L.E.D.’s testimony contained inconsistencies regarding the date and the duration of the acts of abuse, those discrepancies affect the weight of the testimony and do not render it unworthy of belief. (People v. Krison (1978), 63 Ill. App. 3d 531, 535, 380 N.E.2d 449, 452.) L.E.D. was confused about when holidays occurred but recalled that the incident occurred around “summer vacation,” which started in May. L.E.D.’s confusion about dates and holidays does not render his testimony incredible, as the time of year in which the incident occurred does not affect the credibility of a child. (People v. Tannahill (1987), 152 Ill. App. 3d 882, 886, 504 N.E.2d 1283, 1286.) Furthermore, his mother corroborated the date and the time when L.E.D. brought home the toy purchased as part of the “deal.”

Defendant also points out that L.E.D. delayed telling anyone about the incident and initially denied it. This court notes that there is a natural reluctance of children to report such an incident. (People v. Krison (1978), 63 Ill. App. 3d 531, 535, 380 N.E.2d 449, 452; People v. Padfield (1974), 16 Ill. App. 3d 1011, 1013, 307 N.E.2d 183, 185.) A child will be reluctant because of guilt, shame, fear and embarrassment. (63 Ill. App. 3d at 535, 380 N.E.2d at 452.) In this case, L.E.D. was afraid that his mother would beat him. In light of his age, his fear is also understandably associated with the “guilt and shame associated with such degrading acts” naturally tending to inhibit him from talking about them. (People v. Robinson (1981), 94 Ill. App. 3d 304, 308, 418 N.E.2d 899, 902.) Regarding initial denials by L.E.D., the courts of this State have upheld a child molestation conviction even though the victim previously denied the incident. People v. Tannohill (1987), 152 Ill. App. 3d 882, 886, 504 N.E.2d 1283, 1286.

Defendant also points out the testimony of L.E.D.’s second-grade teacher. She stated that at school, L.E.D. had a reputation for untruthfulness. Defendant links L.E.D.’s reputation at school with the possibility that he created the incident under pressure from his mother. However, his mother did not become suspicious until after the police approached her and she viewed a television special on child molestation. This court notes that the teacher did not state that he ever lied to her or was prone to fantasy. No other evidence was produced revealing a history of fabrication or, more importantly, preexisting hostility between defendant and L.E.D. This court finds that L.E.D.’s testimony was clear and convincing, and, as such, defendant was found guilty of aggravated criminal sexual abuse beyond a reasonable doubt.

II

Defendant also raises the issue whether the trial court erred in admitting into evidence testimony which went beyond what is permitted by section 115 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 10) and which was a prior consistent statement. Section 115 — 10 provides in part:

“§115 — 10. In a prosecution for a sexual act perpetrated upon a child under the age of 13 *** the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child that he or she complained of such act to another; and
(2) testimony by the person to whom the child complained that such complaint was made in order to corroborate the child’s testimony.” Ill. Rev. Stat. 1985, ch. 38, par. 115 — 10.

The State initially responds that defendant has waived the issue because he failed to raise the error in his post-trial motion and because he elicited the information of which he complains. However, this court finds, after reviewing the record, that defendant did make a specific objection in his motion and that at trial defense counsel was merely attempting to expose flaws in the witnesses’ stories after the State initially questioned the witnesses extensively on the complaint. Furthermore, where the defense is responding to the State’s having elicited damaging evidence over defense objections, further inquiry is not waiver. (People v. Gillman (1980), 91 Ill. App. 3d 53, 59, 414 N.E.2d 240, 245.) This court finds the State’s argument without merit.

Section 115 — 10 was “drafted so that a person who hears a child’s complaint of sexual abuse is allowed to give corroborating testimony of the fact a complaint was made.” (People v. Laremont (1988), 174 Ill. App. 3d 201, 206, 528 N.E.2d 249, 252.) However, in People v. Powell (1985), 138 Ill. App. 3d 150, 159, 485 N.E.2d 560, 566, the court held that such testimony must necessarily include some details to effectively corroborate the fact that a complaint was made. In People v. Server (1986), 148 Ill. App. 3d 888, 499 N.E.2d 1019, the court stated further that “[t]he admission of unnecessary or impermissible detail, such as the identification of the defendant, will be deemed to be harmless when substantially corroborated by the testimony of the child victim or any other pertinent evidence and the child victim is present in court and available for cross-examination.” 148 Ill. App. 3d at 900, 499 N.E.2d at 1027-28.

This court finds the trial court properly allowed the testimony. In recalling L.E.D.’s complaint, his mother and Sergeant Moss would necessarily and did in fact repeat some details of the incident. To corroborate L.E.D.’s testimony, it was necessary for L.E.D.’s mother and Sergeant Moss to recite details. Without these details, their testimony would be without merit and the intent of section 115 — 10 would be frustrated. Even if there was error, it was made harmless because L.E.D. was present and was extensively cross-examined on every detail of the incident.

III

Defendant also raises on appeal that count I should be vacated because it failed to state an offense and the evidence showed there was only one act. The State concedes that count I fails to charge an offense, citing People v. Gann (1986), 141 Ill. App. 3d 34, 489 N.E.2d 924. This court agrees, and accordingly, vacates count I and remands for resentencing on count II. In light of this action, we also vacate the $9,600 fine.

For the foregoing reasons, the judgment of the circuit court of Jackson County is affirmed in part, vacated in part, and remanded for resentencing.

Affirmed in part; vacated in part and remanded.

WELCH, P.J., and HARRISON, J., concur.