author: PRESIDING JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID HOUGH, Defendant-Appellant.
    Fifth District
    No. 5 — 89—0653
    Opinion filed November 20, 1991.

      Daniel M. Kirwan and Michelle A. Zalisko, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Paul H. Hillis, Jr., State’s Attorney, of Salem (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Defendant, David Hough, was charged in the circuit court of Marion County with three counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14). Count I was based on an incident which occurred on November 10, 1988, and counts II and III were based upon an incident which occurred on January 27, 1989. The victim was eight years old. Prior to trial, the State sought a motion in limine based upon the rape-shield statute precluding any evidence of prior sexual activity by the victim. The trial court granted this motion.

At defendant’s bench trial on August 14, 1989, the victim testified that the defendant lived with her and her mother. While living there, defendant forced her to perform various sex acts on numerous occasions. The victim testified to the specific incidents of abuse incidents upon which the charges were based. The victim further testified that when Charlotte Groves, a Department of Children and Family Services (DCFS) child-welfare specialist, came to the house, defendant hid under the bed so he would not be seen. On cross-ex-animation, the victim admitted that she lied on occasion and that other adult males had done to her the same things that defendant had done. Also, she denied defendant’s allegation that she had initiated the incident on November 10, 1988.

Darlene Phillips testified that she attended church with the victim and her mother, and that after Sunday school on January 29, 1989, the victim seemed very upset about something. Phillips stated that the victim told her that she did not like the man her mother was going to marry, that he was mean to her, and that he fondled her in ways she did not like. Phillips reported this conversation to DCFS.

Diane Johnson, a DCFS worker, visited the household on January 29, 1989, to investigate possible sexual abuse. The victim, her mother, and an infant were present. The victim denied making the statement to Phillips and denied that anyone hurt her or touched her. The victim nodded affirmatively when Johnson asked if she was afraid to speak to her.

Charlotte Groves and Nelson Adams, also a DCFS child-welfare specialist, interviewed the victim at school on January 30, 1989. The victim told them that defendant had sexually abused her on at least 20 occasions, the last of which had occurred the night before. The victim further indicated that her mother had told her not to tell anyone that defendant was living with them, and that defendant had hidden from DCFS workers on numerous occasions. Adams later interviewed the victim in the presence of her mother, but her mother gave the victim little opportunity to speak and accused her of lying.

Adams and Regina Shelton, another DCFS worker, then interviewed defendant. At first, he denied any sexual contact with the victim but then stated that on one occasion, he awoke to find the victim performing a sex act on him. He also admitted hiding from DCFS workers.

Richard Simer, a police investigator, testified that he took defendant’s statement. The defendant stated that on one occasion he awoke to find the victim performing a sex act on him. The defendant also stated that he hid from visiting DCFS workers because he was not supposed to be living with the victim’s mother and was afraid that DCFS would take the children away were he found there.

The victim’s mother was called to testify, but she invoked her fifth amendment right not to testify. She had pleaded guilty to similar charges and a motion to withdraw that plea was pending at the time of trial.

Dr. Alexander James, a clinical psychologist, testified that he had examined the victim and found her to be “physically provocative” and “sexually overstimulated,” both symptoms of sexual abuse. Dr. James also testified that the victim’s willingness to discuss her sexual experiences, and the degree of detail with which she was willing to discuss them, varied from session to session, something Dr. James described as a characteristic response of young sexual-abuse victims.

Charlotte Groves testified that the victim was placed with foster parents, Larry and Amanda Verner, for several weeks but had to be removed because she was uncontrollable. Groves testified that Mrs. Verner reported that the victim was sexually provocative toward Mr. Verner, the victim was sent to several other foster homes and eventually hospitalized for observation. She was in the hospital at the time of trial. Groves admitted writing a letter to Dr. James in February of 1989 indicating that the victim might have been confusing men and acts of abuse. Groves stated that when she interviewed the victim on January 30, 1989, the victim had no trouble distinguishing men and acts of abuse.

The defendant testified that he knew the victim had been previously abused by other men and stated that she approached him sexually on several occasions. He further testified that on one occasion in November of 1988, he awoke to find her performing a sex act on him. He pushed her away but did not tell anyone. Defendant denied the January 1989 incident and stated that he had never sexually abused the victim.

The trial court found defendant guilty on all three counts. At a subsequent sentencing hearing the trial court considered as factors in aggravation the defendant’s continued protestations of innocence despite having been found guilty, that the victim suffered serious harm, that defendant’s conduct magnified the victim’s psychological problems, that defendant had pleaded guilty to a prior charge of indecent liberties, and that defendant was in a special position of trust or supervision. The trial court also considered as a factor in mitigation the fact that defendant had no history of criminal activity for 10 years prior to commission of the present offenses. The trial court also determined that consecutive sentences were mandated by section 5 — 8—4(a) of the Uniform Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(a)) and sentenced defendant to three 30-year consecutive terms of imprisonment.

Defendant argues first that the trial court erred in excluding evidence of the victim’s prior sexual abuse and previous false accusations of abuse. Defendant failed to advance this argument in a post-trial motion, however, and it is therefore waived. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

Defendant contends that should this court find that his argument is waived, then it must be found that his trial counsel was ineffective for failing to include it in his post-trial motion. To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) Defendant fails to meet the latter requirement. The essence of defendant’s argument with respect to the motion in limine and the rape-shield statute is that it prevented him from demonstrating that the victim’s detailed sexual knowledge could have been the result of abuse by others and not by him. The record clearly demonstrates, however, that notwithstanding the ruling on the motion in limine such evidence was introduced through testimony by both the defendant and the victim, and the trial court stated several times that it was aware that the victim had been sexually abused by other men. Defendant suffered no prejudice by counsel’s failure to include the rape-shield-statute argument in a post-trial motion, and his claim of ineffective assistance of counsel therefore fails.

Defendant also contends that the rule in Enoch violates the constitution’s guarantee of equal protection. Specifically, defendant argues that criminal defendants are treated differently from civil defendants in that criminal defendants are required to preserve issues in a post-trial motion whereas civil defendants are not. Such disparate treatment, defendant maintains, serves no compelling or legitimate State interest. Our supreme court in Enoch implicitly recognized two classes of defendants, civil and criminal, and we cannot say that this distinction is without rational basis given the distinctly different interests involved. Statutes and rules are presumed to be constitutional, and the burden of proving otherwise is on the challenger. (People v. Bales (1985), 108 Ill. 2d 182, 483 N.E.2d 517.) We find that defendant has not met that burden in this case.

Defendant next argues that he was not proved guilty beyond a reasonable doubt. The applicable standard of review to challenges to the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) Citing People v. Findlay (1989), 177 Ill. App. 3d 903, 532 N.E.2d 1035, and People v. Green (1986), 140 Ill. App. 3d 35, 487 N.E.2d 1270, defendant maintains that to sustain his conviction, the victim’s testimony must be found to have been clear and convincing, or be substantially corroborated by other evidence. The clear-and-convincing or substantially corroborated standard is no longer applicable having been abrogated by our recent decision in People v. Meador (1991), 210 Ill. App. 3d 829, 568 N.E.2d 1386. Following our supreme court’s decision in People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344, this court in Meador held that the Collins standard of review applied to all criminal cases including those involving sex offenses. In addition, our supreme court recently held in People v. Schott (1991), 145 Ill. 2d 188, that the Collins standard was applicable to claims of evidentiary insufficiency in sex-abuse cases.

With the Collins standard in mind, we turn to a brief review of the evidence. The victim testified that defendant had sexually abused her on numerous occasions, including the evening of January 29, 1989. Such testimony demonstrated detailed sexual knowledge. Testimony was introduced, however, that the victim had been sexually abused by other men, implying that such other abuse was the source of the victim’s detailed knowledge. Defendant admitted that the November 10, 1988, incident occurred but denied the January 29, 1989, incidents. Defendant testified he was asleep at the time the November 10, 1988, incident occurred and pushed the victim away upon awakening. As trier of fact, the court was charged with the duty of weighing defendant’s credibility and was free to disbelieve his story. (People v. Vazquez (1990), 194 Ill. App. 3d 516, 551 N.E.2d 656.) Given the evidence, a rational trier of fact could easily conclude that defendant’s testimony was untruthful and that he was guilty beyond a reasonable doubt of the offenses charged.

Defendant next argues that the trial court erred in finding that section 5 — 8—4(a) of the Uniform Code of Corrections required consecutive sentences. Section 5 — 8—4(a) provides in pertinent part:

“The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, or where the defendant was convicted of a violation of section 12 — 13 or 12 — 14 of the Criminal Code of 1961, in which event the court shall enter sentences to run consecutively. (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(a).)

Defendant maintains the statute mandates consecutive sentences for multiple violations of section 12 — 14 (aggravated criminal sexual assault) only where they are part of a single course of conduct. Defendant argues that the ban on consecutive sentences for offenses committed as part of a single course of conduct is a general rule to which there are two exceptions. The first exception is where one of the offenses was a Class X or Class 1 felony and the defendant inflicted severe bodily harm. The second exception is where the defendant was convicted of a violation of section 12 — 13 or 12 — 14. Defendant’s theory is that the final clause of the sentence, “in which event the court shall enter sentences to run consecutively,” becomes operative only where one of the two exceptions applies. Where neither exception is applicable, the argument runs, the general rule prevails and consecutive sentences are not mandated. Because the November 10, 1988, offense was not part of the same course of conduct as the January 29, 1989, offenses, defendant maintains, the trial court erred in finding that the sentence for that offense had to be consecutive to the sentences for the other two.

This argument was advanced by the defendant in People v. Ewald (1991), 210 Ill. App. 3d 7, 568 N.E.2d 451. The court in Ewald found that the language of the statute was “arguably unclear” and that the statute could arguably be interpreted as mandating consecutive sentences only where the offenses were part of a single course of conduct, but the court held that the comments made during the legislative debate did not support such an interpretation and that it was “unlikely the legislature intended to authorize a mandatory consecutive sentence in cases where a section 12— 13 or 12 — 14 violation stems from a single course of conduct” and not where multiple violations arise from separate courses of conduct. Ewald, 210 Ill. App. 3d at 10, 568 N.E.2d at 453.

We believe the Ewald court’s resolution of this issue to be correct. The primary role of statutory construction is to ascertain legislative intent and give effect to it. Where the language of a statute is ambiguous, as is the language of section 5 — 8—4(a), and admits to alternate constructions, a reviewing court should select one which leads to a logical result and reject those which would lead to an absurdity. (People v. Jones (1985), 134 Ill. App. 3d 1048, 481 N.E.2d 726.) We believe the Ewald court’s interpretation of section 5 — 8—4(a) does just that. It is neither reasonable nor logical that the legislature intended to mandate consecutive sentences for violations of sections 12 — 13 and 12 — 14 only where such violations are part of a single course of conduct. We hold that section 5 — 8— 4(a) mandates that a sentence for a violation of sections 12 — 13 and 12 — 14 be made consecutive in statutes for other offenses regardless of whether the section 12 — 13 or 12 — 14 violation and the other violations were part of a single course of conduct.

Defendant next argues that section 5 — 8—4(a) is unconstitutional because there is no rational basis for distinguishing between offenses committed as part of a single course of conduct and those committed as separate and distinct acts over a period of time. Having already determined that section 5 — 8—4(a) mandates consecutive sentences regardless of whether the offenses were committed as part of a single course of conduct or as separate and distinct acts, we need not address this contention further.

Defendant’s final argument is that the trial court abused its discretion in imposing 30-year terms of imprisonment for each offense and in ordering them to be served consecutively. Defendant contends that such sentences were not warranted by the nature of the offenses, nor were they necessary to protect the public from further harm by the defendant. Specifically, defendant maintains that the trial court erred in considering that he maintained his innocence of these offenses and of a previous offense after having been found guilty, and that he had committed other uncharged acts of abuse against the victim, that the court improperly punished him for the harm others caused to the victim, that the court placed undue emphasis on his 10-year-old conviction for indecent liberties with a child, and that the sentences are excessive when compared to sentences imposed in other cases for similar offenses.

When considering a defendant’s rehabilitative potential, a court may, under certain circumstances, take into consideration a defendant’s willingness to be under oath. (People v. Ward (1986), 113 Ill. 2d 516, 499 N.E.2d 422.) Although it may be argued that this violates a defendant’s fifth amendment right against self-incrimination, we do not interpret the fifth amendment as protecting a right to commit perjury. A defendant need not testify against himself, but if he chooses to take the witness stand and testify, he has a duty to testify truthfully, and the court is well within its right to consider how a defendant’s willingness to lie under oath reflects on his character and rehabilitative potential. The court’s finding of guilt beyond a reasonable doubt necessarily implies a finding that defendant lied. After reviewing the record, we do not find the trial court’s consideration that defendant’s continued insistence that he was innocent to be an abuse of discretion.

The trial court likewise properly exercised its discretion in considering the abuse perpetrated on the victim by the defendant was of an ongoing and habitual nature. (People v. Stoutenborough (1978), 64 Ill. App. 3d 489, 381 N.E.2d 415.) The victim so testified and several other witnesses testified that the victim had told them that the abuse was continual. The trial court found the victim’s testimony to be credible.

With respect to defendant’s third contention, a trial court may properly consider psychological harm to the victim when determining a sentence. (People v. Ulmer (1987), 158 Ill. App. 3d 148, 510 N.E.2d 1296.) In the present case, the trial court acknowledged that the victim had been abused by others but found that the abuse perpetrated by the defendant raised further harm, and it was for that additional harm that defendant was punished.

Regarding defendant’s prior conviction, it is not improper to consider a prior conviction, even an old one, especially where that conviction was for a similar offense. (People v. Daniels (1983), 113 Ill. App. 3d 523, 447 N.E.2d 508.) We also note that the trial court considered as a factor in mitigation that defendant had no criminal history during the 10 years prior to the offense, demonstrating that the court balanced these two factors when determining defendant’s sentence.

Finally, defendant’s sentences are not excessive when compared to sentences for other similar offenses. See, e.g., People v. Ortiz (1987), 155 Ill. App. 3d 786, 508 N.E.2d 490 (defendant sentenced to 35 years for one count of criminal sexual abuse).

For the foregoing reasons, the judgment of the circuit court of Marion County is affirmed.

Affirmed.

HARRISON and HOWERTON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    DENNIS ECHELBARGER, Plaintiff-Appellant, v. DIXON PUBLISHING COMPANY, a/k/a Dixonweb Printing Company, et al., Defendants-Appellees.
    Second District
    No. 2 — 91—0374
    Opinion filed November 22, 1991.
    — Rehearing denied December 20, 1991.
    Stephen G. Terrando, of La Salle, for appellant.
    Richard A. Palmer, of Ward, Murray, Pace & Johnson, P.C., of Sterling, for appellee Dixon Publishing Co.
    John A. Sandberg, of Thomas & Hinshaw, Culbertson, of Rockford, and D. Kendall Griffith and Stephen R. Swofford, both of Hinshaw & Culbertson, of Chicago, for appellee Martin Boyer Company.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Dennis Echelbarger, appeals the judgment of the circuit court of Lee County dismissing his first amended complaint. The court held that plaintiff’s cause of action was barred by the exclusive remedy provision of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.). Plaintiff argues in this appeal that the Act does not foreclose a common-law cause of action. We affirm.

Count I of plaintiff’s first amended complaint alleged that he was employed by defendant Dixon Publishing Company, d/b/a Dixonweb Printing Co. (Dixonweb). On May 15, 1985, plaintiff suffered a work-related injury which resulted in the filing of a worker’s compensation claim. The claim was disposed of in 1988.

Plaintiff further alleged that Dixonweb “[rjepeatedly, and as a pattern of conduct” withheld or delayed numerous payments, which conduct caused plaintiff to suffer “mental anguish, physical trauma, loss of services essential for sustaining normal family life, and other traumas.” This “outrageous delay” forced plaintiff to settle his claim “for far less than it was worth.”

Count II of the complaint was against codefendant Martin Boyer Company (Boyer). Count II repeated the substantive allegations of count I. Count II further alleged Boyer was a service company which administered workers’ compensation claims on behalf of Dixonweb and that Boyer “independently or in concert with” Dixonweb withheld or delayed plaintiff’s payments.

Both defendants filed motions to dismiss in which they contended, among other things, that plaintiff’s exclusive remedy was under the Workers’ Compensation Act and thus his cause of action was barred. The court granted the motions, holding that section 19(k) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(k)) is the exclusive remedy for unreasonable delay in making workers’ compensation payments.

In reviewing the dismissal of a complaint, we must accept as true all properly pleaded facts, and a cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiff to recover. People ex rel. Daley v. Datacom Systems Corp. (1991), 146 Ill. 2d 1, 11.

In dismissing plaintiff’s complaint, the trial court relied on Robertson v. Travelers Insurance Co. (1983), 95 Ill. 2d 441. In Robertson the supreme court held that section 19(k) is the exclusive remedy for a plaintiff whose damages arise solely from unreasonable or vexatious delay in payment. Section 19(k) provides:

“In case where there has been any unreasonable or vexatious delay of payment or intentional underpayment of compensation *** then the Commission may award compensation additional to that otherwise payable under this Act equal to 50% of the amount payable at the time of such award.” Ill. Rev. Stat. 1989, ch. 48, par. 138.19(k).

In his one-page argument, plaintiff contends that Robertson does not foreclose every conceivable cause of action by an injured employee against his employer. Rather, it only bars causes of action for conduct which is not alleged to have caused any harm other than the delay itself. Plaintiff contends that his complaint alleged “far more than merely vexatious delay,” specifically, actual harm to plaintiff and the diminution in value of his claim.

The holding in Robertson is not nearly so narrow as plaintiff would have it. Like plaintiff in the instant case, Robertson also sought consequential damages for “severe emotional distress” as well as financial strain. Moreover, contrary to plaintiff’s contention, the only issue specifically left open by the Robertson court was whether an independent cause of action might exist for outrageous conduct which goes beyond mere delay in payment. As an example of such conduct, the court cited Unruh v. Truck, Insurance Exchange (1972), 7 Cal. 3d 616, 498 P.2d 1063, 102 Cal. Rptr. 815. In that case, one of the insurer’s investigators pretended to befriend plaintiff, to the point where the two began dating, while a second investigator secretly took films of plaintiff. These films were shown at the administrative hearing. 7 Cal. 3d at 620-21, 498 P.2d at 1066-67, 102 Cal. Rptr. at 818-19.

We need not decide the issue allegedly left open by the supreme court in Robertson. Here, as in that case, plaintiff does not allege any outrageous conduct by defendants other than withholding the payments. That different results may have flowed from that conduct is not the significant issue, although we have already noted that in Robertson, as in the instant case, plaintiff alleged emotional as well as financial damages. Ultimately, plaintiff seeks damages solely for defendant’s vexatious delay in payment. His exclusive remedy is section 19(k), and he has failed to state a cause of action.

For the foregoing reasons, the judgment of the circuit court of Lee County is affirmed.

Affirmed.

GEIGER and NICKELS, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARY ELIZABETH HAWKINS, Defendant-Appellant.
    Second District
    No. 2 — 90—1380
    Opinion filed November 20, 1991.
    John F. Donahue, of Donahue, Sowa & Bugos, of Lisle, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Mary Elizabeth Hawkins, appeals from the trial court’s denial of her petition to rescind the statutory summary suspension of her driving privilege pursuant to section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.1). Defendant’s sole appellate contention is that it was against the manifest weight of the evidence for the trial court to grant the State’s motion for a directed finding that the arresting officer had probable cause to arrest defendant for driving under the influence of alcohol (DUI). We affirm.

The record discloses that, on October 18, 1990, defendant was arrested and charged by complaint with DUI and driving with a blood-alcohol concentration (BAG) of 0.10 or greater (Ill. Rev. Stat. 1989, ch. 951/2, pars. 11 — 501(a)(1), (a)(2)) and reckless driving by driving in excess of 100 miles per hour and driving into the lanes of oncoming traffic numerous times (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 503). The law enforcement sworn report filed in the trial court avers that the basis for the suspension was that defendant’s BAG was 0.17 and the reasonable grounds for the violation relied on by the arresting officer included defendant’s erratic driving, the strong odor of an alcoholic beverage on defendant’s breath, glassy and bloodshot eyes, slurred speech, and the lack of physical coordination.

The three grounds raised by the evidence at the summary suspension hearing were (1) whether there was probable cause for the traffic stop; (2) whether there was probable cause to arrest defendant for DUI; and (3) whether defendant was adequately warned of the consequences of taking or refusing the breathalyzer test.

We recite only those facts relevant to the issue of probable cause to arrest defendant for DUI. At the hearing, Laurie Solon, a passenger in defendant’s car, testified in defendant’s behalf. Solon testified that on October 18, 1990, at about 6:25 p.m., she went to dinner with defendant at El Matador in Bartlett, Illinois. Defendant arrived at about 6:40 p.m. Solon observed defendant drink l/2 to 2 glasses of wine. She thought defendant had her second glass of wine at 7:50 p.m. Solon drank two margaritas. As they were leaving the restaurant, someone offered to buy them a drink because it was Solon’s birthday. Solon declined to have another drink, but defendant sipped on Drambuie, an alcoholic liquor.

At 9:28 p.m., defendant was driving her automobile westbound on Stearns Road when she was stopped. According to Solon, the speedometer never exceeded 49 miles per hour, and defendant did not violate any lane markings or traffic laws; she did not believe defendant was intoxicated. After noticing the police lights behind them, defendant pulled over immediately. When defendant asked the police officer why he had stopped her, Solon interjected, “She wasn’t speeding, Officer. I looked at the speedometer.” According to Solon, the officer replied, “Lady, be quiet. I had to go 100 miles to catch her.” The officer asked defendant to step out of the car. He stated that defendant was going at an excessive speed. Through the window, Solon observed defendant “walk the line.” Solon acknowledged that the police pursued them with the siren on. She denied that defendant had to fumble through her purse and wallet to get the driver’s license, but stated that one could never find anything in her purse. When defendant performed the walk-and-turn test, her arms were about one foot away from her body. Solon only saw defendant take four or five steps and did not recall seeing her turn around and walk back. Solon did not observe the one-leg-stand test.

Defendant testified that she was at the El Matador restaurant to have dinner with Solon. She had two glasses of wine; she finished the second glass during dinner. On the way out, she was offered a drink, and she had a few sips of Drambuie. After she left the bar, as she was driving westbound on Stearns Road, she noticed that her speed was somewhere in the 40 miles-per-hour range. She denied that she violated any speed or traffic laws. She saw the police lights and immediately pulled over. The officer came to the door and asked for her driver’s license. She said she may have had difficulty finding her wallet in her purse, but then immediately gave the officer the license from the wallet. When the officer asked her to step out of the car, she engaged in what she characterized as her awkward-looking ritual of getting out of the car: she leaned over, put her left arm on the dashboard and swung herself out.

When she asked why she had been stopped, the officer said, “I had to go almost 100 miles an hour to catch you.” Defendant denied that she was traveling at that speed. The officer asked her to perform field sobriety tests. After the officer demonstrated the heel-to-toe test for her, she performed it, counting to 10. She then pivoted and walked back. She could not recall if she raised her hands as she walked. When she attempted to perform the one-leg-stand test, she counted to three and could not retain her balance. She did not believe she was intoxicated. She tried the other leg and could not do the test, and, after yet another attempt, she said, “I just can’t do this.” She was then arrested.

On cross-examination, she stated that she believed that she was traveling between 45 to 50 miles per hour. Regarding the one-leg-stand test, she acknowledged that the officer gave her instructions and demonstrated the test. She was asked to count to 10 or 12, but she only got to 3 or 4. She denied that she was told to keep her arms to her side. She did not tell the officer that she had any physical problems preventing her from performing the tests. On redirect examination, she stated that she had back surgery four or five years before, but that she was not debilitated by it. On re-cross-examination, she admitted that she did not tell the officer about any back problem, but she stated that she had never tried this test before.

After the State moved for a directed finding, the trial court granted the motion, finding that the officer had probable cause to arrest defendant for DUI. The court also found that the proceeding should continue regarding the issues of probable cause to make the traffic stop and the implied-consent warning.

Defendant argues that the court’s directed finding of probable cause to arrest her for DUI is against the manifest weight of the evidence.

In a summary suspension hearing, the burden of proof is on the motorist to present a prima facie case for rescission (People v. Orth (1988), 124 Ill. 2d 326, 338), and, in order for the motorist to prevail, the trial court must find that the defendant has satisfied his or her burden of proof by a preponderance of the evidence (People v. Kurtz (1988), 171 Ill. App. 3d 1068, 1070). Whether a defendant has met this burden of proof is a question of fact for the trial judge, and this determination will not be overturned on review unless it is against the manifest weight of the evidence, that is, unless an opposite conclusion is clearly evident from the record. Kurtz, 171 Ill. App. 3d at 1071.

The petition to rescind the summary suspension represents an action by a defendant asking the court to reverse an action by the State that has already taken place. (People v. Nunn (1987), 156 Ill. App. 3d 604, 607.) In this type of proceeding, the officer’s sworn report must be on file in the circuit court’s record, and, to attack the summary suspension, the defendant-petitioner must also attack the law enforcement officer’s sworn report since the defendant has the burden of proof. (Nunn, 156 Ill. App. 3d at 607.) While the party not having the burden of proof may introduce contrary evidence, it is under no compulsion to do so and may submit the issue to the trier of fact on the evidence presented by the burdened party. M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §301.4, at 74 (5th ed. 1990), citing Caley v. Manicke (1961), 29 Ill. App. 2d 323, rev’d on other grounds (1962), 24 Ill. 2d 390.

In considering a motion for a directed finding, a two-stage analysis is applied. In ruling on the State’s motion for a directed finding in a nonjury case such as this, the court must weigh the evidence, considering the credibility of the witnesses and the weight and quality of the evidence (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1110; Prevendar v. Thonn (1988), 166 Ill. App. 3d 30, 34) and draw reasonable inferences from the testimony (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154). The trial court is to determine in the first instance whether the motorist (here, defendant), acting in the role of proponent, has made out a prima facie case, that is, whether he or she has presented at least some evidence on every element necessary to the cause of action. (Kokinis, 81 Ill. 2d at 154.) The failure to introduce such evidence warrants a directed finding for the State as movant. See Kokinis, 81 Ill. 2d at 155.

However, if the court determines that the plaintiff (here, defendant) has made out a prima facie case, the court, as the trier of fact, must then weigh that evidence. This weighing process may result in the negation of some of the evidence necessary to plaintiff’s prima facie case, in which event the court should grant the movant’s motion and enter judgment in its favor. (See Kokinis, 81 Ill. 2d at 155.) As Orth points out, in considering whether the testimony presented by the motorist constitutes a prima facie case, the burden of proof will shift to the State only if the trial court finds such testimony credible. (Orth, 124 Ill. 2d at 341.) The court is not to view the evidence in the light most favorable to the plaintiff (here, defendant motorist). Kokinis, 81 Ill. 2d at 154.

To ascertain whether the probable cause requirement has been met, a court must determine whether a reasonable and prudent person, having the knowledge possessed by the officer at the time of the arrest, would believe defendant committed the offense. (People v. Brodeur (1989), 189 Ill. App. 3d 936, 940.) In deciding the question of probable cause, courts need not be unduly technical; rather, they must deal with probabilities. (Village of Algonquin v. Ford (1986), 145 Ill. App. 3d 19, 22.) The facts upon which probable cause to arrest is based need not be sufficient to convict, but something more than a hunch or a mere suspicion is required. People v. Scarpelli (1980), 82 Ill. App. 3d 689, 694.

As we have noted, a defendant may present some evidence on every element of his or her prima facie case, but in weighing the evidence and the credibility of the witnesses, the court may choose to disbelieve defendant’s evidence. In the case at bar, the defense testimony, even if believed, does not require a finding of no probable cause to arrest. Defendant admitted that she had had three drinks in less than three hours prior to the stop. Both defendant and her witness stated that the officer said he stopped her because he had to go up to 100 miles per hour to catch her. It can be inferred from defendant’s testimony that she took an unusual posture when she steadied herself on the dashboard as she swung herself out of her car. There is some evidence that she had difficulty in getting her license from her purse. While defendant stated that she thought she had passed the walk-and-turn test, there is testimony indicating that her arms were away from her sides, presumably to assist in balancing herself. She clearly admitted that she could not perform the one-leg-stand test even after three attempts, and she made no mention of any physical disability to the officer.

Notwithstanding defendant’s testimony that she was not speeding and that she did not believe she was intoxicated, we are persuaded that, on the facts presented, the officer could have concluded from the circumstances apparent to him that she was driving in an impaired condition. The trial court’s finding was neither unreasonable nor improbable. Simply put, defendant did not meet her burden of proof. Contrary to the State’s argument rationalizing the court’s finding upon the sworn police report, there is nothing in the record to reflect the court considered any substantive evidence other than that presented by the defendant in her case in chief. The judgment of the circuit court was not palpably against the manifest weight of the evidence and will therefore be affirmed.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

INGLIS and WOODWARD, JJ., concur.


author: PRESIDING JUSTICE REINHARD

text:
    ROBERT QUINTON, Plaintiff-Appellant, v. GLENN KUFFER, DefendantAppellee (Apollo Portable Toilets, Inc., et al., Defendants).
    Second District
    No. 2 — 91—1023
    Opinion filed November 22, 1991.

      Patrick J. Moran, of Hillside, for appellant.
    Thomas R. Hill, Stephen E. Sward, and Carolyn N. Offenbach, all of Rooks, Pitts & Poust, of Chicago, for appellee.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Robert Quinton, appeals pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) from an order of the circuit court of Lake County granting defendant’s, Glenn Kuffer’s, motion for summary judgment. Plaintiff’s complaint alleged, among other things, that defendant was negligent in failing to warn plaintiff of a label entitled “flammable” on defendant’s 55-gallon drum which plaintiff was cutting with a torch for defendant. Defendant’s motion for summary judgment asserted he had no duty to warn plaintiff of open and obvious dangers and of dangers which plaintiff knew or should have known existed due to his superior or special knowledge.

Plaintiff raises two issues on appeal: (1) whether a motion for summary judgment is proper for determining the issue of duty; and (2) whether the trial court erred in finding that defendant owed no duty to warn plaintiff.

The relevant facts are adduced from the pleadings and depositions of the parties. Plaintiff and defendant met in the summer of 1986. At that time, while defendant was visiting plaintiff’s home, plaintiff showed defendant a wood burning stove which plaintiff had made out of a 55-gallon drum. The stove was used to heat plaintiff’s garage. In about October 1986, plaintiff and defendant agreed that plaintiff would build a similar stove for defendant.

Plaintiff had extensive experience as a welder for about 20 years. He was a welder at several companies, and while working at John Deere, he was a foreman of the welding area which required him to supervise 400 other welders. He had received instructions about the hazards of cutting and welding with reference to explosions and fire. Defendant was a carpenter and was unfamiliar with welding.

Early in December 1986, plaintiff and defendant went to purchase a suitable drum with which to make the stove. After travelling around the Libertyville and Mundelein area, they finally stopped at Apollo Portable Toilets. According to defendant’s deposition, plaintiff took part in purchasing the drum by approaching a rack of drums and selecting the drum which was eventually purchased. However, according to plaintiff’s own deposition, he did not recall exiting the car, approaching the rack or inspecting the drums. In his deposition, plaintiff said that defendant and another person “went over and got a barrel” and placed it in the bed of the pickup truck.

According to defendant, the drum was empty, and there were labels on the drum which “were obviously there” and could not be missed if one looked at the drum. Defendant described one label as two inches high by six to eight inches long with red letters which read “flammable.” The label also had a red border around the edge. In his deposition, defendant stated that “[the label] was sitting in the middle of the barrel.” Defendant did not tell plaintiff that the drum was marked “flammable,” and plaintiff did not tell defendant that he saw the label. Plaintiff did not remember if the drum had any labels.

On December 17, 1986, plaintiff went to defendant’s home to build the stove. Although defendant testified in his deposition that he was not home when plaintiff arrived, plaintiff testified that he thought defendant was home. However, both testified that when plaintiff was beginning to work on the drum, defendant was in the vicinity, although he was not assisting plaintiff in the work on the drum. Plaintiff did not clean or look inside the drum prior to working on it. However, when he built his own stove from a food service barrel, he cleaned the drum with soap, water and a wire brush because it had some liquid in it. After scribing the drum, plaintiff touched the torch to the drum to make a blow hole, and the drum exploded.

As a result of the explosion, plaintiff suffered burns, a skull fracture and kidney problems. Although pictures of the drum were taken, none of the pictures showed the label. Defendant disposed of the drum about six months after the accident, and the drum has not been located.

As to the first issue, plaintiff contends that a motion for summary judgment is improper here in determining whether a duty exists, relying on Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605. However, Janes is inapplicable here.

Janes concerned the well-criticized practice of using hybrid motions which combine both a motion to dismiss under what is now section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) and a motion for summary judgment. (Janes, 57 Ill. 2d at 406, 312 N.E.2d at 609; but see Ill. Rev. Stat., 1990 Supp., ch. 110, par. 2 — 619.1.) Although a motion under section 2 — 615 can be directed at a complaint’s failure to allege facts which state a cause of action (Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281, 287, 527 N.E.2d 303), it can also be directed at the legal sufficiency of the pleadings (Dunn v. Baltimore & Ohio R.R. Co. (1989), 127 Ill. 2d 350, 372, 537 N.E.2d 738; Katz v. Belmont National Bank (1986), 112 Ill. 2d 64, 67, 491 N.E.2d 1157). The purpose of a motion to dismiss under section 2 — 615 is to identify defects in pleadings so that they may be corrected before trial. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 422, 430 N.E.2d 976.) In determining a section 2 — 615 motion to dismiss, the court accepts all well-pleaded facts as true (Lovgren v. Citizens First National Bank (1989), 126 Ill. 2d 411, 419, 534 N.E.2d 987) and may not look beyond the face of the pleadings (Urbaitis v. Commonwealth Edison (1991), 143 Ill. 2d 458, 475, 575 N.E.2d 548, 555-56; Seefeldt v. Millikin National Bank (1985), 137 Ill. App. 3d 841, 842, 485 N.E.2d 30).

In contrast, when the grounds do not appear on the face of the pleadings, but must be established by affidavits or depositions, the defendant may contest the complaint through either a motion to dismiss under section 2 — 619 (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619) or a motion for summary judgment. (4 R. Michael, Illinois Practice: Civil Procedure Before Trial §41.2, at 295 (1989).) Although a motion for summary judgment “almost necessarily assumes that a cause of action has been stated” (Janes, 57 Ill. 2d at 406, 312 N.E.2d at 609), when negligence is alleged, in the absence of any showing upon which the court could infer the existence of a duty, no recovery would be possible as a matter of law, and summary judgment in favor of defendants would be proper (Barnes v. Washington (1973), 56 Ill. 2d 22, 27, 305 N.E.2d 535). If what is contained in the papers on file would constitute all the evidence before the court and would be insufficient to go to a jury but would require a court to direct a verdict, summary judgment should be entered. Pyne v. Witmer (1989), 129 Ill. 2d 351, 358, 543 N.E.2d 1304.

In this case, defendant was not challenging the legal sufficiency of the complaint on the face of the pleadings. Defendant did not proceed under a motion to dismiss under section 2 — 615. Defendant filed a motion for summary judgment to contest what he perceived as plaintiffs failure to show factually the existence of a duty of care, a procedure often used. (See 4 R. Michael, Illinois Practice: Civil Procedure Before Trial §40.5, at 284 n.28 (1989).) Because defendant was challenging the duty owed to plaintiff based on facts outside the pleadings and claimed that those facts showed that he owed no duty, defendant could properly proceed on a motion for summary judgment.

Next, in determining whether the trial court erred in finding that defendant owed plaintiff no duty to warn, we must initially note the proper standard to be applied when reviewing a trial court’s determination on a motion for summary judgment. A motion for summary judgment should be granted only when the pleadings, depositions, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).) Although the use of summary judgment is to be encouraged to aid in the expeditious disposition of a lawsuit, summary judgment is a drastic means of disposing of litigation and, therefore, should be allowed only when the right of the moving party is clear from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.) The purpose of summary judgment is to determine whether there are any issues of triable fact. (Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.) To determine the presence of a genuine issue of material fact, courts must construe the pleadings, depositions, admissions, exhibits and affidavits on file strictly against the movant and liberally in favor of the opponent. (Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.) The existence of factual questions will not preclude summary judgment unless these facts are material to the litigation. (Equity General Insurance Co. v. Patis (1983), 119 Ill. App. 3d 232, 236, 456 N.E.2d 348.) Facts unrelated to the essential elements of the plaintiff’s cause of action are immaterial, and no matter how sharply controverted, their presence in the record will not warrant denial of a motion for summary judgment. (Equity General Insurance, 119 Ill. App. 3d at 236, 456 N.E.2d at 351.) A fact is material to the claim in issue when the success of the claim is dependent on the existence of that fact. Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 88, 508 N.E.2d 1201.

An order granting summary judgment will be reversed if the pleadings, depositions and admissions show that a genuine issue as to material fact existed (Adkins v. Sarah Bush Lincoln Health Center (1989) , 129 Ill. 2d 497, 506, 544 N.E.2d 733) or if the judgment for the movant was incorrect as a matter of law (United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1989), 193 Ill. App. 3d 1087, 1092, 550 N.E.2d 1032; International Amphitheatre Co. v. Vanguard Underwriters Insurance Co. (1988), 177 Ill. App. 3d 555, 571, 532 N.E.2d 493). The granting or denying of a motion for summary judgment is not discretionary (Derby Meadows Utility Co. v. Inter-Continental Real Estate (1990), 202 Ill. App. 3d 345, 354, 559 N.E.2d 986), and the de novo standard of review is applied (Demos v. National Bank of Greece (1991), 209 Ill. App. 3d 655, 659-60, 567 N.E.2d 1083).

In this case, although a question of fact exists as to whether plaintiff selected the particular 55-gallon drum, that question of fact is not material to the issue here, which is the existence of a duty to warn. The facts are undisputed that a label entitled “flammable” was affixed to the drum, that plaintiff did not see the label, and that defendant saw the label but did not tell plaintiff. Plaintiff did not and, in fact, could not contest that the label reading “flammable” existed, because plaintiffs cause of action is premised on the existence of such a label. Thus, although some questions of fact exist, they are not material here so as to preclude summary judgment.

Although breach of duty and proximate cause are questions of fact (Curtis v. County of Cook (1983), 98 Ill. 2d 158, 163, 456 N.E.2d 116), the existence of a duty is a question of law (Widlowski v. Durkee Foods, Division of SCM Corp. (1990), 138 Ill. 2d 369, 373, 562 N.E.2d 967) based on the facts presented (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 151-52, 554 N.E.2d 223; Joy v. Chicago, Burlington & Quincy R.R. Co. (1914), 263 Ill. 465, 470, 105 N.E. 330; Hardy & Mills, Survey of Illinois Law — Tort Developments, 15 S. Ill. U.L.J. 1111, 1136 (1991)). A duty requires a person to conform to a certain standard of conduct for the protection of another against an unreasonable risk of harm. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 554, 328 N.E.2d 538.) In considering whether a duty exists, a court must weigh the foreseeability that defendant’s conduct will result in injury and the likelihood of an injury occurring against the burden to defendant of imposing a duty and the consequences of imposing this burden. Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 47, 566 N.E.2d 1365.

Although the parties have couched the issue in terms of premises liability (see, e.g., Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223), the explosion was not related to a condition on the land which is the basis of premises liability (Restatement (Second) of Torts §§343, 343A (1965)). In this case, plaintiff has not claimed that a condition on defendant’s land should result in liability, unlike other cases based on premises liability. (See, e.g., Wright v. Mr. Quick, Inc. (1985), 109 Ill. 2d 236, 486 N.E.2d 908 (landlord liable for failing to maintain condition of parking lot); Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836 (lumber placed on property); Geraghty v. Burr Oak Lanes, Inc. (1955), 5 Ill. 2d 153, 125 N.E.2d 47 (railroad tie and telephone pole left on parking lot); Gustafson v. Consumers Sales Agency, Inc. (1953), 414 Ill. 235, 110 N.E.2d 865 (applying attractive nuisance doctrine to pond containing floating debris); Kosinski v. Inland Steel Co. (1989), 192 Ill. App. 3d 1017, 549 N.E.2d 784 (presence of graphite on roof caused injury); Shaffer v. Mays (1986), 140 Ill. App. 3d 779, 489 N.E.2d 35 (hole in ground).) Rather, plaintiff attempts to place liability upon defendant for failing to inform him about the warning label on the drum which under the instant facts is not a condition on the land although the drum was located on defendant’s land.

A duty to warn exists for claims based on premises liability (Ward, 136 Ill. 2d at 156, 554 N.E.2d at 234) which may be negated based on the open and obvious nature of the condition (Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 468-69, 343 N.E.2d 465; Restatement (Second) of Torts §343A (1965)). However, when a claim is based on negligence for failure to warn of the dangerous propensities of a chattel, as is the case here, the duty to warn is governed by section 388 of the Restatement (Second) of Torts (1965). Riordan v. International Armament Corp. (1985), 132 Ill. App. 3d 642, 647, 477 N.E.2d 1293.

Section 388 of the Restatement provides the following:

“One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.” (Emphasis added.) Restatement (Second) of Torts §388 (1965).

Comment k to section 388 requires a person to warn another "if, but only if, he has no reason to expect that those for whose use the chattel is supplied will discover its condition and realize the danger involved.” (Restatement (Second) of Torts §388, comment k, at 306 (1965).) Illinois courts have relied on this comment to find that a defendant has no duty to warn plaintiff of an open or obvious danger. See, e.g., French v. Barber-Greene Co. (1991), 215 Ill. App. 3d 1025, 1028-29, 576 N.E.2d 193; Kirkman v. Kirkman (1990), 195 Ill. App. 3d 393, 398, 552 N.E.2d 282; Baylie v. Swift & Co. (1975), 27 Ill. App. 3d 1031, 1043, 327 N.E.2d 438.

In this case, applying not only the general considerations in determining the existence of a duty but also section 388 of the Restatement, we find that no duty to warn existed under the facts of this case. Although the injury was foreseeable, the existence of a legal duty is not bottomed on foreseeability alone. (See Cunis v. Brennan (1974), 56 Ill. 2d 372, 375, 308 N.E.2d 617.) Defendant had reason to expect that plaintiff would see the label reading “flammable” sitting in the middle of the barrel and that plaintiff, an experienced welder, would realize the danger involved in cutting with a torch a 55-gallon drum which might contain flammable liquid or its residue. Although plaintiff did not recall if the drum had a label, defendant could reasonably expect that plaintiff would realize any danger in cutting into the drum with a torch and make inspection of the drum for any dangerous condition attendant in the welding operations in which he was experienced. We, therefore, conclude that defendant under the circumstances did not owe a duty to plaintiff.

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

Affirmed.

INGLIS and McLAREN, JJ., concur.


author: JUSTICE NICKELS

text:
    FRANK DYDUCH, Plaintiff-Appellant, v. CRYSTAL GREEN CORPORATION, Defendant-Appellee.
    Second District
    No. 2 — 91—0118
    Opinion filed November 22, 1991.

      Brett E. Anderson, of Ariano, Anderson, Hardy & Castillo, P.C., of Elgin, for appellant.
    Jay Orlowski, of McKenna, Storer, Rowe, White & Farrug, of Waukegan, and Christine L. Olson and James P. DeNardo, both of McKenna, Storer, Rowe, White & Farrug, of Chicago, for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

Plaintiff, Frank Dyduch, appeals the directed findings entered in favor of defendant, Crystal Green Corporation, on both counts of plaintiff’s complaint for negligence and breach of contract and from an order requiring plaintiff to pay defendant’s costs and attorney fees as a sanction for a discovery violation. Plaintiff contends that the directed findings were against the manifest weight of the evidence and the award of costs and fees was an abuse of discretion.

Defendant is a lawn-care business, and, in 1981, plaintiff hired defendant to provide certain lawn-care services at plaintiff’s home in Algonquin. In his complaint, plaintiff alleged that he had retained defendant to “examine, diagnose, treat, fertilize, and provide insect and weed control as recommended by [defendant for [plaintiffs lawn” and that defendant had appeared periodically each year to do so. In 1988 and 1989, plaintiff’s lawn was allegedly damaged by chinch bugs, sod worms and grubs. In count I, plaintiff alleged that defendant had a duty to inspect properly, diagnose and treat the lawn and that, in disregard of that duty, defendant negligently failed to conduct regular and thorough inspections, diagnose and treat insect infestations and apply insecticides as necessary. In count II, plaintiff alleged that defendant had breached its agreement to provide proper lawn maintenance.

There is no verbatim transcript of the trial, and the evidence is presented on appeal by means of a certified bystander’s report. Plaintiff testified at trial that in May 1981 defendant, through a representative, inspected and analyzed plaintiff’s lawn and quoted a price for service. At that initial inspection, defendant noted possible fusarium blight and sod webworm in the lawn. Plaintiff and defendant orally agreed that defendant would apply fertilizer and weed control four times per year, which occurred and for which service defendant paid until 1989. However, plaintiff declined disease and insect-control treatments available at an additional cost, with the exception of a single application of fungicide to treat the fusarium blight in June 1981. In 1982 and 1983, at plaintiff’s request, defendant applied additional weed-control treatment at no charge. Plaintiff testified that he “believed” that defendant was to maintain the lawn in an excellent condition.

In the summer of 1988, the City of Algonquin instituted a partial ban on lawn watering, and such watering was restricted to four hours per day on each of three designated days per week. Plaintiff observed that part of his lawn had become white and brown. He pointed this out to defendant during the late summer application of fertilizer and weed-control treatment. Defendant’s representative responded that many lawns were similarly affected due to the severe drought.

In May 1989, plaintiff again pointed out the condition of the lawn during the application of fertilizer and weed-control treatment. Defendant’s president, John Eckhardt, came out and inspected the lawn and opined that drought and fusarium blight had probably caused the damage. However, plaintiff had done some dethatching, laid new topsoil and reseeded part of the lawn prior to such inspection. In June, Steve Eckhardt again inspected plaintiff’s lawn, in response to plaintiff’s threat to cancel the service if defendant did not correct the problem, and again told plaintiff the problem was drought and fusarium blight. Plaintiff cancelled defendant’s service and contacted Paul Dones of Chemlawn, who in June 1989 did an analysis of the lawn and advised plaintiff that the lawn had been damaged by chinch bugs the previous year. The cost to repair the damage to plaintiff’s lawn was estimated to be $2,646, which included new topsoil, reseeding and resodding.

Chinch bugs are very difficult to identify, but Dones’ opinion was based on the pattern of damage and discoloration. However, he did not see any chinch bugs when he examined the lawn because chinch bugs are destroyed by heavy watering, and the area had experienced heavy rainfall in the spring of 1989.

Lawn service representatives, who apply fertilizer and other treatments, are required to take certain courses, pass a test, and be certified by the State, and such training should enable a certified applicator to recognize lawn problems. However, because applicators only see a customer’s lawn four times a year, the customer’s prompt notification of any problems or changes in his lawn is essential.

Defendant moved for directed findings as to both counts of plaintiff’s claim at the close of plaintiff’s case. Because the agreement between the parties was only for the application of fertilizer and weed-control and insect-control services were never requested by plaintiff, defendant asserted that plaintiff’s contract claim failed. Plaintiff similarly failed to establish negligence because defendant owed no duty to plaintiff, which duty was defined by the contract, and, therefore, plaintiff’s negligence claim failed. Plaintiff, on the other hand, argued that defendant had agreed to maintain, protect, and preserve plaintiff’s lawn and such agreement included identifying any insect problems. Plaintiff relied on defendant to keep him informed of problems with the lawn, and defendant breached its duty to detect insect damage, which breach proximately caused the damage to plaintiff’s lawn.

The trial court found that the only agreement that plaintiff had established was for fertilizer and weed-control services and not for insect control. Defendant did not have a duty to inspect the lawn for insect damage. The court granted the motion for directed findings as to both counts of the complaint. Plaintiff’s subsequent motion to reconsider was denied, and plaintiff filed his notice of appeal. Plaintiff contends that the court erred in entering directed findings because he presented a prima facie case for breach of contract and for negligence. We disagree.

Pursuant to section 2 — 1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1110) in all cases tried without a jury, a defendant may, at the close of plaintiff’s case, move for a directed finding or judgment in its favor. In ruling on a motion for a directed finding, the court must apply a two-part analysis, first determining as a matter of law whether a plaintiff has presented a prima facie case and entering judgment for the defendant if a plaintiff has failed to so do. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1110; Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154-55.) However, if a plaintiff has presented a prima facie case, the court must weigh the evidence, including any favorable to the defendant, pass on the credibility of the witnesses, draw reasonable inferences and generally consider the weight and quality of the evidence. (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1110; (Kokinis, 81 Ill. 2d at 154-55.) This weighing process may result in the negation of some of the plaintiff’s evidence, but if sufficient evidence remains to establish the plaintiff’s prima facie case, the court must deny the motion and proceed with the trial. (Kokinis, 81 Ill. 2d at 155; Buechin v. Ogden Chrysler-Plymouth, Inc. (1987), 159 Ill. App. 3d 237, 246.) The decision of the trial court to grant a defendant’s motion for a directed finding will not be reversed on review unless it is against the manifest weight of the evidence. Coryell v. Lombard Lincoln-Mercury Merkur, Inc. (1989), 189 Ill. App. 3d 163, 169.

In order to meet his burden of proof on the breach of contract count, plaintiff was required to establish offer, acceptance, consideration, the definite and certain terms of the contract, plaintiff’s performance, defendant’s breach of the terms of the contract, and damage resulting from that breach. (See Mannion v. Stallings & Co. (1990), 204 Ill. App. 3d 179, 186.) As to the terms of the contract, on appeal plaintiff argues that he and defendant had contracted “for Defendant to maintain and preserve Plaintiffs healthy lawn,” and this would include regular inspections, diagnosis, and treatment of problems that arose in the lawn. Plaintiff contends that he knew that insect control and other services were available from defendant “and that they would be provided if necessary for the health and well-being of his lawn.” Plaintiff’s contentions, however, are not supported by the record.

According to the bystander’s report, plaintiff testified that in 1981 he and defendant orally agreed “to begin a lawn program consisting of four applications of fertilizer and weed and feed per year.” However, plaintiff “declined application of disease control and insect control which were available for additional fees.” Finally, although plaintiff “believed that [defendant] was to maintain his lawn in excellent condition,” plaintiff “never entered into a written agreement with [defendant] to provide insect control.”

We agree with the trial court that plaintiff’s evidence established an agreement for fertilization and weed control only. Although plaintiff may have “believed” it to be the case, he did not present any evidence that defendant agreed to maintain the lawn in any condition, to inspect the lawn, to diagnose problems in the lawn, or to recommend or provide additional services if necessary. Rather, plaintiff initiated additional services when necessary, although only to control weeds. Plaintiff’s own expert testified that the customer normally was responsible to notify a lawn-care provider of any changes in a serviced lawn. Although the evidence indicated that the damage to the lawn was caused by bugs and/or drought, there was no evidence of improper fertilization or weed control, which was the extent of defendant’s contractual obligations to plaintiff.

Plaintiff’s reliance in part on defendant’s 1990 brochure wherein defendant made certain representations concerning the quality of its service and employees does not alter this result. The brochure refers to lawn care “for the 90’s” and bears the handwritten date “3-24-90.” Representations made in 1990 are not relevant to the terms of an agreement entered into in 1981 and terminated in 1989.

Plaintiff also contends that the trial court erred in entering a directed finding on the negligence count. We again disagree. Where a defendant is charged with negligence because of his failure to perform an act allegedly required by a contract, the question of whether the defendant actually had a duty to perform the act usually must be determined from the terms of the contract, and the defendant’s duty will not be extended beyond the duties described in the contract. (Perkaus v. Chicago Catholic High School Athletic League (1986), 140 Ill. App. 3d 127, 134.) As set forth above, there was no evidence that the parties’ agreement imposed a duty on defendant to provide insect control, to inspect and treat the lawn for this type problem, or generally to maintain the lawn in a healthy condition. Under the circumstances, since defendant had no contractual duty to perform these acts, it cannot be held liable in tort for damage resulting from its failure to perform them. We conclude that the trial court did not err in entering directed findings on both counts of the complaint.

Finally, plaintiff contends that the court erred in granting defendant’s motion for costs and attorney fees as a sanction for a discovery violation. After the court granted the motion for directed findings, defendant made an oral motion for sanctions. Defendant alleged that plaintiff had willfully withheld the name of a witness, Bruce Spangenberg, who had inspected plaintiff’s lawn. Unaware of that fact, defendant retained Mr. Spangenberg as its own expert witness shortly before trial. Prior to trial, defense counsel had only presented Spangenberg with a hypothetical set of facts, and Spangenberg was not aware of plaintiff’s identity. However, when Spangenberg appeared in court on the first day of trial and became aware of plaintiff’s identity, Spangenberg recalled that he had personally examined plaintiff’s lawn in June 1989 and that he had written to plaintiff regarding the examination. In his report, Spangenberg said that the lawn problem was “drought injury, possibly combined with insect damage,” and the insects mentioned were chinch bugs and sod webworms. Spangenberg informed defense counsel of these facts, and defendant sought sanctions against plaintiff for failure to disclose either Spangenberg’s identity or report, despite specific discovery requests, to which plaintiff responded without objection.

Defendant had requested production of “[a]ll contracts, proposals, invoices, repair bills, or any other indicia of inspection, repair, or other work performed *** on the lawn,” to which plaintiff had failed to produce Spangenberg’s report. Another production request sought “[a] list giving the names, addresses and specialties of all expert witnesses,” in response to which plaintiff had also omitted Spangenberg’s name. Plaintiff had similarly failed to disclose Spangenberg’s identity or report in response to interrogatories seeking “the name and address of [anyone] who repaired or estimated the damage” to plaintiff’s lawn, and “statements of any witness, *** the name and address of each such witness, the date of statement and *** whether such statement was written or oral.”

Plaintiff’s counsel argued that the failure to disclose was inadvertent and not prejudicial. However, plaintiff told the court that he “was aware of Spangenberg’s report but did not want to produce it.” The trial court found that plaintiff had willfully withheld Spangenberg’s name and report, and it granted the motion for sanctions. The court awarded defendant all of its costs in the litigation and one-half of its attorney fees for a total of $5,036.81. On appeal, plaintiff contends that the award of all of defendant’s costs and one-half of its attorney fees was an abuse of the trial court’s discretion because the costs and fees were not incurred by defendant as a result of the misconduct, and because defendant was not prejudiced by the failure to disclose Spangenberg.

Pursuant to Supreme Court Rule 219(c) (134 Ill. 2d R. 219(c)), if a party unreasonably refuses to comply with the rules of discovery, the court, on motion, may order sanctions against the offending party, and the sanctions may include the payment of “the reasonable expenses, including attorney’s fees incurred by any party as a result of the misconduct” (emphasis added) (134 Ill. 2d R. 219(c)). The imposition of sanctions is a matter largely within the discretion of the trial court and should not be disturbed on review unless the order constitutes an abuse of discretion. Kubian v. Labinsky (1988), 178 Ill. App. 3d 191, 196.

Although the trial court is not limited to the sanctions enumerated in Rule 219 for discovery violations and may enter “such orders as are just,” our courts have repeatedly stated that the purpose of sanctions for discovery violations is to accomplish discovery rather than to inflict punishment. (People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 196 (discussing Rule 19 — 12(3) of the Civil Practice Act, the predecessor to Rule 219(c)); Nunez v. Horwitz (1990), 205 Ill. App. 3d 976, 983; Nehring v. First National Bank (1986), 143 Ill. App. 3d 791, 803.) The language of the rule is specific and very clear that an award of expenses as a Rule 219(c) sanction must be related to and the result of the specific misconduct. For example, the offending party may be debarred from filing any pleading “relating to any issue to which the [misconduct] relates” (134 Ill. 2d R. 219(c)(ii)), or debarred from maintaining any claim or defense “relating to that issue” (134 Ill. 2d R. 219(c)(iii)), or a witness may be barred from testifying “concerning that issue” (134 Ill. 2d R. 219(c)(iv)). In that section of the rule relating to the payment of expenses, the rule specifically refers to those expenses incurred “as a result of the misconduct.” 134 Ill. 2d R. 219(c).

In this case, the misconduct, which plaintiff does not deny, was the failure to reveal the name and report of Bruce Spangenberg in plaintiff’s answers to defendant’s interrogatories. We fail to see how the costs and fees awarded relate to the misconduct that occurred. We conclude that the trial court imposed this sanction strictly as a punishment for the discovery violation and that this was an abuse of discretion. Thus, the award of defendant’s costs and attorney fees is vacated, and the cause is remanded to determine what costs and fees, if any, were directly related to and incurred as a direct result of plaintiff’s misconduct.

In determining that it was an abuse of discretion to impose a monetary penalty in excess of the expenses incurred as a result of the discovery misconduct, we have declined to follow the reasoning of the Appellate Court, First District, in Transamerica Insurance Group v. Lee (1987), 164 Ill. App. 3d 945, relied on by defendant. In Transamerica, the defendant filed false answers to interrogatories, and, as a result of the false answers, plaintiff incurred $2,500 in attorney fees. As a sanction for the discovery misconduct, however, the trial court awarded plaintiff $5,000, twice the amount claimed. The Appellate Court, First District, affirmed the trial court’s reasoning that such a penalty was appropriate because “[i]f the only sanction imposed upon discovery of the violation is the payment of attorney fees and costs, [false answers] may prove a cost-effective measure to be tried in future cases.” In a vigorous dissent, Justice McMorrow argued that Rule 219(c) did not authorize such punitive sanctions. (164 Ill. App. 3d at 951.) We agree with Justice McMorrow and her conclusion that monetary sanctions pursuant to Rule 219(c) are limited to the reasonable expenses incurred by the innocent party as a result of the misconduct.

The directed findings entered in favor of defendant are affirmed, the award of costs and attorney fees is vacated, and the cause is remanded for further proceedings consistent with this opinion.

Affirmed in part; vacated in part and remanded.

UNVERZAGT and McLAREN, JJ., concur.


text:
    KENNETH A. MYRDA, Plaintiff-Appellee and Cross-Appellant, v. CORONET INSURANCE COMPANY, Defendant-Appellant and Cross-Appellee.
    Second District
    No. 2 — 91—0111
    Opinion filed November 22, 1991.

      Enrico J. Mirabelli and Attilio V. Fiumetto, both of Enrico J. Mirabelli & Associates, of Chicago, and James O’Dea, of Palos Hills, for appellant.
    David W. Alspaugh, of Wheaton, for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

This is an action for breach of an insurance contract (the contract). Defendant, Coronet Insurance Company, appeals from an order awarding plaintiff, Kenneth A. Myrda, attorney fees pursuant to section 155 of the Illinois Insurance Code (Code) (Ill. Rev. Stat. 1989, ch. 73, par. 767). Plaintiff cross-appeals from the same fee award. Defendant argues that the trial court abused its discretion in finding that defendant’s handling of plaintiff’s claim was vexatious and unreasonable. Plaintiff argues that the trial court abused its discretion in awarding substantially less than the amount of fees actually incurred and for which he petitioned.

Plaintiff owned a 1983 Pontiac Grand Prix automobile. The contract, in effect from August 19, 1988, through August 19, 1989, insured plaintiff against loss of the car by theft or larceny.

The contract consisted of a “Declarations Page with Policy Provisions” and a printed “Family Combination Automobile Policy.” The declarations page gave $5,125 as the “stated value” of the car, specified a $250 deductible, and provided that in the event of loss adjustment would be based on the actual cash value of the car at the time of loss. However, section III of the printed policy, covering among other matters loss by theft or larceny, stated that “[a]ny portion of this policy to the contrary notwithstanding, in the event of a loss [including by theft or larceny] wherein damages sustained to the vehicle stated herein, minus a deduction for depreciation as hereinafter set forth, and minus the deductible amount, the company shall have the following options; (1) Payment to the insured of the stated value of the vehicle minus depreciation, calculated in accordance herewith, and minus the deductible stated in the policy declarations; or (2) Replacement of the vehicle ***; or (3) Payment of the amount the company would have paid for a replacement vehicle; or (4) Repair or rebuild the automobile.” Section III provided that in the event the company elected to treat the automobile as a total loss, its liability would be limited to payment of the stated value listed in the declarations minus the deductible and minus 2% of the stated value for each month or part thereof that the policy was in force.

We first set out the procedural history of this action. On September 11, 1989, plaintiff filed his original complaint for breach of contract, alleging the following. On either July 8 or July 9, 1989, the car was stolen. On or about July 20, 1989, the Elgin police department recovered the badly damaged car, which had a fair-market value of $350. Plaintiff had performed all the conditions of the contract, but defendant had unreasonably and vexatiously refused to pay his claim. As finally amended by a January 8, 1990, circuit court order, the complaint prayed for $3,645 for the value of the automobile as determined by paragraph III of the policy, $647 for storage and towing as covered by the contract and $911.20 pursuant to section 155 of the Code for vexatious and unreasonable delay, for a total claim of $5,203.20.

On October 27, 1989, defendant filed its appearance along with a demand for a jury trial.

On December 18, 1989, defendant offered to settle the entire claim, including attorney fees, for $4,000. Plaintiff rejected the offer.

On December 22, 1989, plaintiff moved for judgment by default. The court denied the motion and granted defendant leave to file its answer.

The case went to arbitration. On March 7, 1990, the panel of arbitrators awarded plaintiff $7,625, representing $3,645 for the automobile, $55 for storage costs, $925 for “unreasonable action” by defendant, and $3,000 for “reasonable attorney fees.” On March 22, 1990, defendant rejected the award and demanded a trial on the complaint. On April 20, 1990, the court, having been informed that defendant was demanding a jury trial, struck the previously scheduled bench trial date of June 18 and ordered both parties to prepare jury instructions for a scheduled trial date of August 1, 1990.

On August 1, 1990, the court allowed defendant to withdraw its jury demand. The court set the trial for September 13, 1990. After trial on that date, the judge awarded plaintiff $3,938. This figure represented $3,150 due under the contract and a $788 penalty assessed pursuant to section 155(l)(a) of the Code. The court found further that defendant had handled plaintiffs claim vexatiously and unreasonably. It therefore granted plaintiff leave to petition for attorney fees pursuant to section 155 of the Code. Plaintiff submitted an itemized fee petition for $15,233.35. On December 28, 1990, after a hearing, the court awarded him $3,500, or somewhat less than one quarter of the requested amount. Defendant timely appealed the December 28 order, and plaintiff timely cross-appealed from the same order.

We now turn to those additional facts necessary to an understanding of the issues on appeal. On July 9, 1989, plaintiff reported the theft to the Glendale Heights police department. According to the police report, plaintiff informed the police that somebody stole his car from in front of his house in Glendale Heights. Plaintiff also told the police that the value of the car was $3,000.

Defendant wrote plaintiff on July 10, 1989, informing him of the steps necessary to process a claim. The correspondence was on stationery with both defendant’s name and address and that of the Elston Claim Service, Inc. (Elston), on the letterhead. Included in this correspondence was a letter requesting that plaintiff submit to a polygraph examination; if plaintiff did not agree to the test, he would be required to give a statement under oath in the presence of a court reporter. On July 20, 1989, plaintiff, not yet represented by counsel, took two polygraph tests at Elston’s address. The examiner, Mitchell J. Radycki, informed Elston four days later of his opinion that plaintiff was not telling the truth when he denied that he had been lying in saying his car had been stolen, when he denied that he was trying to cheat defendant and when he said that he did not know who had his car at the time of the examination. Radycki also stated that plaintiff had said that he was “mad at the world” because he was broke and had to spend money to have the car fixed.

By letter of July 25, 1989, the Elgin police department informed plaintiff that on July 20 plaintiff’s car was towed from 275 Beverly Terrace at the Elgin police department’s request. The letter informed plaintiff that he could pick up his car at Ohm’s Car Care in Elgin.

On August 1, 1989, defendant wrote to plaintiff that it was denying his claim because the results of defendant’s investigation indicated that the loss did not occur as plaintiff had reported. Plaintiff, through counsel, wrote back requesting a proof of loss form; on August 16, defendant informed plaintiff’s attorney by letter that it was standing by its decision. The letter was written by Joe Edgington, identified as “claim manager.” The litigation then ensued.

Before trial, the court ruled that evidence of plaintiff’s polygraph examination was admissible only as it bore on whether defendant’s handling of the claim was vexatious and unreasonable. The court also denied plaintiff’s motion for summary judgment.

Trial was held on September 13, 1990. Dennis Schar, a Glendale Heights police officer, testified that on July 9, 1989, plaintiff told him that between 11 p.m. the previous day and 11 a.m. that day someone stole plaintiff’s car from in front of his house. Schar filled out a police report.

Norman Landwehr of the Elgin police department testified that on July 20, 1989, he notified the Glendale Heights police department that plaintiff’s car had been found. Landwehr arranged for Ohm’s Towing to move the car to its lot in Elgin.

On cross-examination, Landwehr stated that he had examined the car. He saw that it had no plates, that there were dents and scratches, and that there was damage to the taillights, the radiator and the rear seat. He found the car by responding to an anonymous telephone report of an Hispanic male stripping a stolen car; he found the stripped vehicle about 100 feet from the site. The court sustained plaintiff’s objection when defendant asked Landwehr if he had ever investigated “thefts” by vehicle owners themselves.

Marianne Myrda, plaintiff’s mother, testified that she was living at her son’s address at the time of the theft. Plaintiff came home about 11:15 p.m. and parked his car outside. At about 11:30 p.m., as the two were talking and watching television, she heard the dog growl. The next morning, plaintiff looked out the door and told her that his car was gone. Plaintiff never indicated to her that he had sold or lent the car to anyone.

Plaintiff’s account of the theft was similar to Marianne Myrda’s. Plaintiff testified further that at the time of the theft he had made all of the insurance payments on the car. Immediately before taking the polygraph examinations he told the examiner that he was mad at the world because he had just installed a new transmission in the car. On or about July 21, 1989, plaintiff saw his car at Ohm’s Towing and took photographs, admitted into evidence, of the damage.

On cross-examination, plaintiff stated that his car’s license plates, which were due to expire in September 1989, were never recovered. Plaintiff’s insurance policy was due for renewal in August 1989; he was paying $1,000 a year for insurance. About two weeks after the theft, plaintiff bought a 1973 Chevelle for $400. At the time of the theft, plaintiff owed his credit union $1,000 on the Grand Prix. When he reported the theft to Officer Schar, plaintiff estimated that the car was worth $3,000. After the car was stolen, plaintiff completed the payments on it. He did not know anyone in Elgin. Plaintiff did not recall whether his attorney had informed him of defendant’s settlement offer in December 1989.

Defendant put on no evidence. After closing arguments, the court found for plaintiff. The trial judge held initially that plaintiff was entitled to recover $3,152 for breach of contract. This figure included $3,000 for the value of the car; the judge explained that plaintiff’s testimony that the car was worth this much at the time of the theft superseded the $3,645 figure on the declarations page of the contract. The trial judge added $702 for towing and storage and deducted the $300 salvage value and the $250 deductible.

The judge held second that defendant’s failure to pay the claim was unreasonable and vexatious. The judge noted that although defendant advanced the theory that plaintiff had “stolen” his own car, defendant had put on no evidence to support this affirmative defense and there was no other evidence to support defendant’s theory. The judge also explained that there was no evidence of the qualifications of defendant’s polygraph examiner or that “this was an actual polygraph examination.” The court awarded plaintiff an additional $788, or 25% of the verdict, pursuant to section 155(l)(a) of the Code (Ill. Rev. Stat. 1989, ch. 73, par. 767(l)(a)). The court then granted plaintiffs attorney leave to file a petition for fees.

Plaintiff’s attorney, David Alspaugh, filed an itemized petition for $15,233.35 in attorney fees. This amount was based on Alspaugh’s hourly rate of $100 for both court and office time.

On December 12, 1990, the court heard evidence on the petition. Victor J. Cassato, an experienced insurance litigator, stated that he was familiar with Alspaugh, who had a good reputation, and that Alspaugh’s $100 hourly rate was very reasonable. Cassato had reviewed part of the file in this case and opined that the overall bill was “more than reasonable.” He acknowledged that the court would have to deduct any charge for the 15 minutes he and Alspaugh consulted on the petition.

Plaintiff’s attorney Alspaugh also testified. He observed that the arbitrators had concluded in their March 7, 1990, ruling that defendant had acted unreasonably in handling plaintiff’s claim. He conceded that plaintiff had rejected defendant’s offer to settle the entire claim for $4,000.

On December 28, 1990, the trial court entered an order awarding plaintiff $3,500 attorney fees. In explaining her decision, the judge observed that the case had been very hotly contested and that “[ejvery issue that could possibly have been litigated was litigated.” She observed that defendant withdrew its jury demand on the day originally scheduled for trial, that it did not appear by its regular counsel at trial, and that it presented no testimony at trial. However, a “countervailing factor” was that plaintiff rejected a settlement offer in excess of the ultimate verdict. Plaintiff was therefore partly responsible for the intensity and complexity of the litigation. The judge explained further:

“[0]nce that settlement offer was rejected, the defendant continued its previous course of contesting the matter up until the day of trial when there was no testimony presented on behalf of the defendant.
Given the equities of the situation *** I think all of [plaintiff’s attorney’s] work was of a good quality and was necessitated by the level of contest. However, his client must personally bear some of the responsibility for that, having rejected what in retrospect was quite a reasonable offer of settlement.
Having said that and with respect to the equities in the case, I think that an appropriate amount of attorneys’ fees should be awarded [plaintiff] for the expense that was involved in bringing this matter to a conclusion. I think an appropriate amount of attorneys’ fees would be $3500. And that will be the award of the Court for attorneys’ fees.
As I stated before, I think [plaintiff’s attorney’s] time was documented but that his client must bear some responsibility for the necessity of [his attorney's] spending that much time on the case.”

Defendant timely appealed from the judgment. Plaintiff timely cross-appealed.

We first address defendant’s argument that the trial court abused its discretion in awarding plaintiff attorney fees for defendant’s unreasonable and vexatious conduct. Defendant argues that this finding was improper because there was a genuine dispute over whether defendant was liable and because plaintiff’s ultimate recovery was well below his original claim. We hold that the trial court acted properly in awarding fees.

Section 155 of the Code enables a court to award a successful party reasonable attorney fees where it appears to the court that an action or a delay in settling a claim is vexatious and unreasonable. In deciding whether an insurer is liable, a trial court should consider the totality of the circumstances, including the insurer’s attitude. (Norman v. American National Fire Insurance Co. (1990), 198 Ill. App. 3d 269, 304-05.) Whether to impose liability under this section is within the discretion of the trial court. Norman, 198 Ill. App. 3d at 304-05; Keller v. State Farm Insurance Co. (1989), 180 Ill. App. 3d 539, 554-55.

Defendant correctly asserts that an insurer does not violate the statute merely by insisting on a trial at which it loses. (Keller, 180 Ill. App. 3d at 555; Mohr v. Dix Mutual Country Fire Insurance Co. (1986), 143 Ill. App. 3d 989, 999.) However, we believe that the trial court correctly found not merely that defendant was unsuccessful but that its refusal to pay was unreasonable. The judge questioned defendant’s reliance on the polygraph examination, implying that she doubted that defendant had ever had a good reason not to settle. Moreover, as the judge noted, defendant’s own conduct, particularly in the later stages of this litigation, belies its assertion that it had a bona fide defense to liability on the contract. Defendant put on no evidence at trial to support its theory that plaintiff was guilty of fraud, yet defendant insisted on a trial. Further, the arbitrators had found six months earlier that Coronet’s refusal to pay the claim was vexatious and unreasonable.

In asking us to reverse the trial court’s exercise of its discretion, defendant relies primarily on a single case, Marvel Engineering Co. v. Commercial Union Insurance Co. (1983), 118 Ill. App. 3d 844. There we upheld the trial court’s discretionary denial of attorney fees. Defendant focuses on one of the factors on which we based our holding, the disparity between the plaintiff’s claim and the ultimate award. Here plaintiff’s claim of $5,203.20 was not grossly in excess of the ultimate verdict. More importantly, the insurer in Marvel Engineering raised a bona fide defense to the claim, and much of the evidence in that case was complex and disputed. Marvel Engineering cannot fairly be read to support reversing the trial court’s exercise of discretion here.

We turn now to plaintiff’s cross-appeal. Plaintiff argues first that the trial court abused its discretion in granting him only $3,500 in attorney fees despite finding that his attorney’s hourly charge was reasonable and that all of the work upon which plaintiff’s fee petition was based was necessary to the litigation. Plaintiff argues that the decision to award less than the full amount requested by the petition was against the manifest weight of the evidence. Plaintiff further argues, and relatedly, that because evidence of settlement offers is ordinarily inadmissible in a proceeding to award attorney fees (see In re Marriage of Passiales (1986), 144 Ill. App. 3d 629, 640-41), the trial court erred in reducing the fee award because of plaintiff’s refusal to accept the settlement that defendant offered in December 1989.

Plaintiff never objected at the trial level to the introduction of evidence that defendant offered to settle the suit for $4,000 in December 1989. Insofar as his argument on appeal concerns the erroneous admission of evidence, it is therefore waived. (Walker v. Midwest Emery Freight Systems, Inc. (1990), 200 Ill. App. 3d 790, 800-01.) Disregarding the waiver rule, we are still unable to agree with plaintiff that the evidence of a settlement offer was improper in this context. Plaintiff sought to recover attorney fees based on his assertion that defendant vexatiously and unreasonably delayed paying his claim. For a trial court to evaluate such an assertion without being able to consider evidence that the insurer tried in good faith to settle the claim would risk unfairness and would not necessarily be conducive to any public policy of promoting rapid settlements of suits on insurance contracts.

Nonetheless, we believe plaintiff is correct in asserting that the fact of the settlement offer did not entitle the trial court to reduce the fee award under the circumstances of this case. Although section 155 of the Code allows a court to award an insured attorney fees for the insurer’s unreasonable or vexatious refusal to settle, it does not alter the general rule that the decision to refuse a settlement offer is ordinarily a matter of judgment and that a party should not be penalized for exercising such judgment. (Passiales, 144 Ill. App. 3d at 641; Bellow v. Bellow (1981), 94 Ill. App. 3d 361, 371.) Had plaintiff’s rejection of the offer amounted to unreasonable or vexatious conduct, we would be more inclined to share the trial judge’s balancing of the equities. However, the record indicates that at the time of the offer plaintiff had good reason to expect that, even without attorney fees, a verdict would exceed the offer. Furthermore, attorney Alspaugh’s fee petition shows that by the time of the offer plaintiff had used at least 13 hours and 10 minutes worth of Alspaugh’s time, representing over $1,300 in fees, to press a claim that the trial court concluded defendant had no reasonable basis to deny. Plaintiff therefore behaved reasonably in rejecting the offer. Defendant could have made a better offer but never did so, thereby prolonging the litigation and increasing the cost to plaintiff.

Under these circumstances, the trial court abused its discretion in awarding plaintiff only $3,500 in attorney fees despite its finding that all of the work done by plaintiff’s lawyer was necessary to the action. The court’s holding cannot be reconciled with its factual findings absent an implicit holding that an insured may be penalized for a reasonable exercise of judgment in rejecting a settlement offer. However, section 155 of the Code is intended to aid the insured and to discourage insurers from profiting by their superior financial positions while delaying in the payment of contractual obligations. {Keller v. State Farm Insurance Co. (1989), 180 Ill. App. 3d 539, 556-57; Hall v. Svea Mutual Insurance Co. (1986), 143 Ill. App. 3d 809, 812-13.) We sympathize with the trial judge’s frustration over the massive effort expended in such a routine type of proceeding. We do not believe, however, that penalizing the insured for legal work that the court itself found necessary is in line with the purposes of section 155 of the Code.

We therefore conclude that the trial court’s award of only $3,500 for plaintiff’s attorney fees was an abuse of discretion and against the manifest weight of the evidence. As the trial court found that all of plaintiff’s attorney’s work was necessary and justified, we assess attorney fees in the amount prayed for, minus $25 for the 15 minutes that plaintiff’s attorney acknowledged was spent with his expert witness and should not have been counted. We therefore hold plaintiff is entitled to a fee award of $15,208.35.

Plaintiff argues next that the trial court erred in awarding him only $3,000 for the value of his car rather than $3,645, which plaintiff asserts is the proper amount under the contract. We decline to pass on this assertion as we lack jurisdiction to do so.

Plaintiff’s notice of cross-appeal states only that he appeals from the December 28, 1990, order allowing attorney fees of $3,500 and that by the cross-appeal he will ask this court to award fees in the amount prayed for in the petition, plus fees for defending this matter in the appellate court. The notice of cross-appeal makes no mention of the earlier order of September 13, 1990, which involved not fees but a verdict and damage award for breach of contract.

Supreme Court Rule 303(c)(2) (134 Ill. 2d R. 303(c)(2)) states that a notice of appeal or cross-appeal “shall specify the judgment or part thereof appealed from and the relief sought from the reviewing court.” A notice of appeal gives a reviewing court jurisdiction over only the judgments or parts thereof specified in the notice of appeal. (Sterne v. Forrest (1986), 145 Ill. App. 3d 268, 279.) When an appeal is taken from a specified judgment only, or from a part of a specified judgment, the court of review acquires no jurisdiction to review other judgments or parts thereof not so specified or not fairly to be inferred from the notice as intended to be presented for review on appeal. (Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 434; Long v. Soderquist (1984), 126 Ill. App. 3d 1059, 1062.) Plaintiff’s notice of cross-appeal is defective in this regard. As we lack jurisdiction to entertain plaintiff’s challenge to the court’s ruling on the contract damages issue, we consider it no further.

Plaintiff argues finally that, pursuant to section 155 of the Code, he is entitled to reasonable attorney fees for the defense of this appeal. Plaintiff maintains that because defendant’s appeal is not well grounded in the law or the facts of this case it is therefore a continuation of defendant’s unreasonable and vexatious refusal to pay plaintiff what it owes.

Under section 155 of the Code, vexatious and unreasonable delay may include the delay incurred by an insurer’s appeal of a judgment. (Keller v. State Farm Insurance Co. (1989), 180 Ill. App. 3d 539, 557-58; Meier v. Aetna Life & Casualty Standard Fire Insurance Co. (1986), 149 Ill. App. 3d 932, 943-44.) Courts of review should enforce the Code’s protection of insureds by restraining insurers from using the appeal process to punish the insured by lessening recovery through ill-founded appeals. (Meier, 149 Ill. App. 3d at 944.) We agree with plaintiff that defendant’s appeal is vexatious and unreasonable. We therefore remand the cause to the trial court with directions to assess reasonable attorney fees for plaintiff’s defense of this appeal. We wish to make it clear that section 155 extends only to the cost of defending the appeal and not to the cost that plaintiff himself incurred through the separate cross-appeal.

The judgment of the circuit court of Du Page County is affirmed in part and reversed in part, and the cause is remanded.

Affirmed in part; reversed in part and remanded.

GEIGER and McLAREN, JJ., concur.