author: JUSTICE STOUDER

text:
    CHARLES LIDDLE, Plaintiff-Appellee, v. JUAN CEPEDA, Defendant and Third-Party Plaintiff (Moss and Hillison, Appellant; Gregory Liddle, Third-Party Defendant-Appellee).
    Third District
    No. 3-93-0075
    Opinion filed November 4, 1993.
    — Rehearing denied December 14, 1993.

      Moss & Hillison, of Chicago (Gregory R. Spelson, of counsel), for appellant.
    Frank P. Andreano, of Joliet, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

The law firm of Moss & Hillison appeals from an order of the circuit court granting attorney fees to the plaintiff. We find that the circuit court did not abuse its discretion in awarding attorney fees to the plaintiff, but we remand the cause for a recalculation of the amount of the fees owed.

The plaintiff, Charles Liddle, filed a complaint against the defendant, Juan Cepeda, for $1,908.60 in property damage to his automobile. The complaint alleged that Cepeda was responsible for paying him this amount as a result of an automobile accident that occurred on October 26, 1991. The plaintiff obtained the defendant’s name from a police report of the accident. The defendant filed an answer and third-party complaint for contribution against Gregory Liddle, the son of the plaintiff and the driver of the plaintiff’s vehicle at the time of the accident. The third-party complaint described the defendant as having been the driver of the vehicle and alleged five specific acts of negligence on the part of Gregory Liddle.

At trial, it became apparent that the defendant was not the driver of the vehicle at the time of the accident. The defendant initially testified that he had been the driver and proceeded to describe how the accident occurred. After awhile, the defendant became confused. Following a sidebar conference, the defendant changed his story and testified that it was his son who was involved in the accident and that he had been lying to protect him. Both parties moved for a directed verdict, and the judge granted the defendant’s motion. The plaintiff also moved for sanctions in the form of attorney fees, pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137). The judge stated that he would start to conduct a hearing on the Rule 137 motion and that he would put the defendant on the stand.

The court then called the defendant as a witness. The defendant speaks English poorly and testified with the aid of an interpreter. The defendant testified that his first contact with the law firm of Moss & Hillison was in November 1991 when his wife spoke to an attorney at the firm. He never personally spoke to an attorney until the day of the trial. Upon questioning by an attorney from Moss & Hillison, the defendant admitted that his wife filled out an insurance form that listed him as the driver, and also that he spoke to an attorney from Moss & Hillison a few weeks previously. The defendant also received letters from the firm. Upon questioning by counsel for the plaintiff, the defendant testified that his attorneys never requested that he come into their office to talk about the accident. The defendant was shown the third-party complaint for contribution and could not remember if he had ever seen it before. He testified that Moss & Hillison never asked his permission to file it.

The court granted the plaintiff’s motion for attorney fees. The court stated in a written order that attorney John Moss had signed a pleading without anyone from his firm ever speaking to his client. The third-party complaint for contribution alleged that Juan Cepeda was the driver of the vehicle and also alleged five specific acts or omissions of Gregory Liddle that constituted negligence. The court found that these allegations were made without reasonable inquiry, as no one from the firm spoke to the defendant until three weeks prior to trial. The court ordered Moss & Hillison to pay the plaintiff’s attorney fees in the amount of $1,550 plus costs. This figure was based on an affidavit filed by the plaintiff.

Moss & Hillison first argue on appeal that the trial court erred in sanctioning defense counsel for not pursuing a reasonable inquiry regarding their client’s pleadings. The decision to impose sanctions is within the sound discretion of the trial judge and will not be reversed on appeal absent an abuse of discretion. (Yassin v. Certified Grocers of Illinois, Inc. (1990), 133 Ill. 2d 458, 551 N.E.2d 1319.) An appellate court reviewing imposition of sanctions considers whether (1) the circuit court’s decision was an informed one; (2) the decision was based on valid reasons that fit the ease; and (3) the decision followed logically from the application of the reasons stated to the particular circumstances of the case. Kubiak v. City of Kewanee (1992), 228 Ill. App. 3d 605, 592 N.E.2d 1200.

Moss & Hillison claim that the trial court erroneously employed a hindsight analysis in sanctioning them. They claim that, because their client lied to them, they had no way of knowing that they were filing a pleading on behalf of the wrong party. Unfortunately, Moss & Hillison’s understanding of this case is no better now than it ever was. Their entire argument on this issue focuses on the fact that they could not have known that their client was the wrong party. What Moss & Hillison either do not recognize or do not understand is that the trial court was equally concerned with the specific acts of negligence alleged in the third-party complaint. The defendant alleged that the plaintiff moved at an unreasonable speed, failed to keep a proper lookout, failed to give proper warning to any vehicle involved in the alleged incident, operated an improperly equipped vehicle, and disobeyed traffic signs, signals or ordinances. The court found that there had been no reasonable inquiry with respect to these allegations. The court stated in making its ruling that it was clear that the defendant never authorized or even saw the third-party complaint before it went out. The judge further stated, “I’m not sure exactly where Mr. Moss came up with the allegations, since he never even talked to his own client.”

It is clear from the record that there was no basis for these specific allegations of negligence. The defendant was not consulted prior to filing of the third-party complaint, no evidence was introduced that the plaintiff moved at an unreasonable rate of speed, had an improperly equipped vehicle, failed to give proper warning, or disobeyed any traffic signs or ordinances. These statements did not even make sense in the context of how the accident occurred. Further, the attorney for Moss & Hillison did not explain at the sanctions hearing the basis for these allegations. The duty imposed upon counsel is to make a reasonable inquiry into the facts to support a legal claim before pleadings are filed, not after. (Beno v. McNew (1991), 213 Ill. App. 3d 720, 572 N.E.2d 295.) An attorney is not entitled to make up facts, put them in a pleading, and then hope something remotely similar comes up at trial. The trial judge’s decision to grant the motion for attorney fees was an informed one that was based on valid reasons that fit the case. Defense counsel has not demonstrated an abuse of discretion by the circuit court.

Moss & Hillison also argue that the procedure by which they were sanctioned was improper. They complain that the judge called the sanctions hearing on his own volition and did not give advance notice. They also argue that the petition for fees was submitted at the last minute and that the supporting affidavit was not filed until later. This argument is made for the first time on appeal; defense counsel never objected to any of the proceedings and failed to ask for a continuance. Even though an order of court may by void ab initio for lack of due process, such as notice, a defect in notice can be waived. (Williamsburg Village Owners’ Association, Inc. v. Lauder Associates (1990), 200 Ill. App. 3d 474, 558 N.E.2d 208.) Preservation of a question for review requires an appropriate objection in the court below, and failure to object constitutes a waiver. (Williamsburg, 200 Ill. App. 3d 474, 558 N.E.2d 208.) Rule 137 specifically allows the trial court to impose sanctions on its own initiative. Defense counsel participated in the hearing and never raised any procedural objections, either at the hearing or in the post-trial motion. Defense counsel also failed to ask for a continuance and declined the court’s invitation to have someone else from Moss & Hillison come to testify about the circumstances surrounding the filing of the pleading. Any procedural objections have therefore been waived.

As a final matter, we note that the court awarded the plaintiff all of the attorney fees expended in this matter. Rule 137 states, in part, that the sanction for filing a pleading in violation of the rule, “may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading.” (134 Ill. 2d R. 137.) The first six legal expenses listed on the plaintiff’s supporting affidavit are for matters that took place before filing of the third-party complaint. These expenses, therefore, could not have been incurred because of the filing of the third-party complaint and should not have been awarded by the circuit court. The affidavit lists all of the services performed and the total hours expended. The total hours are multiplied by $100 to reach a total amount of $1,550. Unfortunately, the affidavit does not list the amount of time spent on each individual service. Therefore, we are unable to reduce the amount of the award ourselves and must remand the matter for a new determination of the proper amount of the sanction.

In sum, we affirm the decision of the circuit court of Will County to award attorney fees to the plaintiff, but remand the cause for a new hearing on the proper amount of the sanction. The plaintiff is directed to file a new supporting affidavit with the circuit court that lists the specific amounts of time expended for each separate legal service.

Affirmed and remanded with directions.

McCUSKEY, P.J., and BRESLIN, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE McCUSKEY

license: Public Domain

text:
    JANICE GRUTZIUS et al., Plaintiffs-Appellants, v. FRANCISCAN SISTERS HEALTH CARE et al., Defendants-Appellees.
    Third District
    No. 3-92-0711
    Opinion filed November 5, 1993.
    — Rehearing denied December 13, 1993.
    Todd A. Smith and Philip H. Corboy, both of Corboy & Demetrio, P.C., and Linda A. Bryceland, of David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky, of counsel), for appellants.
    Robert G. Black, of Hinshaw & Culbertson, of Lisle, Peter G. Panno, of Hinshaw & Culbertson, of Joliet, and Hinshaw & Culbertson, of Chicago (Bruce L. Carmen, of counsel), for appellees.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

The plaintiff, Janice Grutzius, appeals from an order of the circuit court of Will County. The court granted the motion of the defendant, Franciscan Sisters Health Care Corporation, for partial summary judgment on count I of the plaintiff’s second amended complaint.

The sole issue raised on appeal is whether the trial court properly granted the motion for partial summary judgment based on its finding that the doctrine of apparent agency cannot form the basis for a medical malpractice cause of action. As a result of our supreme court’s recent decision in Gilbert v. Sycamore Municipal Hospital (1993), 156 Ill. 2d 511, we reverse.

The plaintiff, as administrator of her husband’s estate and individually, filed her second amended complaint against the defendant and Dr. Ramavtar Singh. The complaint sought damages for the wrongful death of her 43-year-old husband, Lawrence Grutzius (Grutzius).

In count I, the plaintiff alleged that, on January 24, 1988, Grutzius was admitted to the emergency room of St. Joseph Medical Center, a hospital owned and operated by the defendant. The plaintiff also alleged Grutzius was examined and treated in the emergency room by Dr. Singh, an agent and employee of the defendant. The plaintiff alleged that the defendant, through its agents and employees, failed to monitor the cardiac status of Grutzius. The plaintiff further alleged that this failure was the proximate cause of Grutzius’ death on January 25, 1988. The allegations of count II of the complaint were directed against Dr. Singh. We note that Dr. Singh is not a party to this appeal.

The defendant filed an answer to count I of the second amended complaint. The answer denied that Dr. Singh was an agent and employee of the hospital. The defendant then filed a motion for partial summary judgment as to count I of the complaint. The motion argued there was no issue of material fact regarding whether Dr. Singh was an agent of the hospital. The defendant attached the affidavit of Tim Heinrich, the hospital’s vice-president.

In his affidavit, Heinrich stated that Dr. Singh was a member of the hospital’s medical staff, but was an independent contractor and not an employee of the hospital. Heinrich stated that DBMS, Inc., an Illinois medical service corporation, was solely responsible for the employment, retention and supervision of all emergency room physicians, including Dr. Singh. The hospital did not pay Dr. Singh a salary, did not provide him with any benefits and did not bill patients for any of Dr. Singh’s services. Heinrich further stated that all medical care, diagnoses and decisions involving emergency room patients were made by the physicians employed by DBMS, Inc.

The plaintiff filed a response to the defendant’s motion for partial summary judgment. She argued that liability “may be imposed upon a hospital for the acts of an independent physician or other professional who appears to be an agent of the hospital, under the doctrine of apparent or ostensible agency.” She contended that the defendant should therefore “be vicariously liable for the negligent acts of Dr. Singh, under the doctrine of apparent agency.”

Following a hearing, the court granted the defendant’s motion. The court found that “apparent agency is not available as a remedy in this district.” The plaintiff then voluntarily dismissed the remaining portions of her complaint and filed a timely notice of appeal.

Here, the trial court based its decision upon Johnson v. Sumner (1987), 160 Ill. App. 3d 173, 513 N.E.2d 149, and Greene v. Rogers (1986), 147 Ill. App. 3d 1009, 498 N.E.2d 867. Both cases similarly involved medical malpractice actions arising out of treatment provided in a hospital emergency room. Also, in both Johnson and Greene, the emergency room physician providing the care was an independent contractor and not an actual agent or employee of the hospital. In both cases, we held that the trial court properly granted summary judgment for the defendant hospital. (Johnson, 160 Ill. App. 3d at 176-77, 513 N.E.2d at 152; Greene, 147 Ill. App. 3d at 1014-16, 498 N.E.2d at 870-72.) We expressly declined to extend the doctrine of apparent agency in a tort action for medical malpractice. Johnson, 160 Ill. App. 3d at 175, 513 N.E.2d at 151; Greene, 147 Ill. App. 3d at 1016, 498 N.E.2d at 871-72.

Our supreme court recently addressed the same issue in Gilbert v. Sycamore Municipal Hospital (1993), 156 Ill. 2d 511. In Gilbert, the supreme court specifically disagreed with our reasoning in Johnson and Greene. The supreme court stated that the decisions in Johnson and Greene overlooked the realities of modern hospital care. (Gilbert, 156 Ill. 2d at 520.) These realities include the business and marketing practices of modern hospitals, the fact that a major component of modem hospital business is the emergency room, and the reasonable expectations of the public in seeking medical help through the emergency room facilities of modem-day hospitals. (Gilbert, 156 Ill. 2d at 520-21.) The court then held:

“[Ujnder the doctrine of apparent authority, a hospital can be held vicariously liable for the negligent acts of a physician providing care at the hospital, regardless of whether the physician is an independent contractor, unless the patient knows, or should have known, that the physician is an independent contractor.” Gilbert, 156 Ill. 2d at 524.

The supreme court in Gilbert set out the elements which must be present for a hospital to be liable under the doctrine of apparent authority. The court determined a plaintiff must show that the hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital. (Gilbert, 156 Ill. 2d at 525.) Also, where the acts of the agent create the appearance of authority, a plaintiff must prove that the hospital had knowledge of and acquiesced in those actions. (Gilbert, 156 Ill. 2d at 525.) Finally, a plaintiff must show that he or she acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence. Gilbert, 156 Ill. 2d at 525.

Our supreme court noted that the “holding out” element “is satisfied if the hospital holds itself out as a provider of emergency room care without informing the patient that the care is provided by independent contractors.” (Gilbert, 156 Ill. 2d at 525, citing Pamperin v. Trinity Memorial Hospital (1988), 144 Wis. 2d 188, 209-10, 423 N.W.2d 848, 856-57.) The court also noted that the element of justifiable reliance is satisfied where a plaintiff relies upon the hospital to provide complete emergency room care, rather than upon a specific physician. Gilbert, 156 Ill. 2d at 525.

In Gilbert, the court determined that a genuine issue of material fact existed regarding whether the emergency room physician was an apparent agent of the hospital. Consequently, the court reversed the trial court’s entry of summary judgment in favor of the hospital. Gilbert, 156 Ill. 2d at 526.

Following Gilbert, we conclude that summary judgment was not proper in this case. Here, the trial court determined that summary judgment should be granted because the defendant could not be liable based upon apparent authority. That is no longer the law in Illinois. (Gilbert, 156 Ill. 2d at 527.) The record in the instant appeal does not include facts to show that the defendant informed Grutzius, the plaintiff’s decedent, of Dr. Singh’s independent contractor status. Also, no facts were presented to show that Grutzius relied solely upon Dr. Singh, and did not rely upon the hospital, in seeking emergency room care. As a result, we conclude that a genuine issue of material fact exists as to whether Dr. Singh was an apparent agent of the hospital. Consequently, the trial court’s entry of summary judgment must be reversed and the cause remanded for further proceedings.

Finally, we note that the court in Gilbert decided an additional issue related to a settlement made with the physician in that case. The supreme court’s resolution of the settlement issue in Gilbert was given prospective application only. (Gilbert, 156 Ill. 2d at 529.) Here, the record does not disclose any settlement involving Dr. Singh. Therefore, the additional issue decided in Gilbert does not apply in this case.

For the reasons indicated, the judgment of the circuit court of Will County is reversed and the cause remanded.

Reversed and remanded.

SLATER and BRESLIN, JJ., concur.


author: JUSTICE DOYLE

text:
    THE DEPARTMENT OF TRANSPORTATION, Plaintiff-Appellee, v. LA SALLE NATIONAL BANK et al., Defendants-Appellants.
    Second District
    No. 2—92—1157
    Opinion filed November 8, 1993.

      Don E. Glickman, of Chicago, for appellants.

      Roland W. Burris, Attorney General, of Springfield (Douglas G. Felder, Special Assistant Attorney General, of Chicago, and Rodney D. Cavitt, Special Assistant Attorney General, of Elgin, of counsel), and Richard A. Redmond, of McBride, Baker & Coles, of Chicago (Robert S. Hirschhorn, of counsel), for appellee.
   JUSTICE DOYLE

delivered the opinion of the court:

Plaintiff, the Department of Transportation (DOT), brought a condemnation action against defendants, La Salle National Bank, Chicago Title and Trust Co., Northern Trust Co., John Stoetzel, Freightliner Corporation, FC 1000 Mittel Venture, Forest Creek Owner’s Association, and unknown owners (hereinafter referred to collectively as Stoetzel), in the circuit court of Du Page County. Defendants timely appeal from the judgment entered on a jury award for just compensation in the amount of $161,390 with zero damages to the remainder and the denial of their post-trial motion.

Defendants raise the following issues on appeal: (1) whether the trial court erred in denying the property owner’s motion in limine, which sought to bar DOT’S witnesses from testifying that the potential for development and value of the subject property was limited because it was a jurisdictional wetland; (2) whether the trial court erred in denying the property owner’s motion to strike the testimony by DOT’s engineer that the potential for development of the subject property was limited because it was a jurisdictional wetland; and (3) whether the jury verdict was against the manifest weight of the evidence.

THE PROPERTY

On March 8, 1989, DOT filed an action to condemn an approximately 3.7-acre portion of an approximately 7.5-acre vacant parcel of land located on Thorndale Avenue in Wood Dale, Illinois. DOT sought to acquire the 3.7-acre portion as a part of the proposed Elgin-O’Hare expressway. Defendant John Stoetzel is the sole beneficial owner of the subject site under the terms of a land trust agreement.

In 1981, Forest Creek Industrial Park was annexed into Wood Dale, and approximately one year later development of the property began. The property was initially comprised of a single lot known as unit 1. Over the next couple of years additional plats of subdivision were recorded, resulting in three additional units. In 1986 or 1987, unit 3, now referred to as unit 3N, was resubdivided, creating four lots for development plus an out-lot. The out-lot is the subject site. As a result of improvements constructed on the lots available for development, Stoetzel constructed a 2.1-acre retention basin on the subject site to accommodate water runoff from the development lots.

The subject site can be described as a flag-shaped parcel with the pole running southward, along the Salt Creek, from the northwest comer of the property. It is located entirely within a larger development known as the Forest Creek Industrial Park. The northern boundary of the subject site is Thorndale Avenue, which is oriented along an east-west line; the subject site is bounded to the east and the south by the remaining portions of the Forest Creek Industrial Park (Forest Creek). The portion taken in the condemnation action comprises what could be characterized as the top three-fourths to seven-eights of the pennant.

Nearly the entire site is located within the Salt Creek floodplain, which consists of those lands that would be submerged in the event of a 100-year flood. A portion of the subject site is also located within the Salt Creek floodway, which is that portion of the floodplain that would serve as the channel for the water in the event of a 100-year flood. The central issue at trial focused on the highest and best use of the subject site and the effect such use would have on the ultimate valuation of the property.

JURISDICTIONAL WETLAND

The Army Corps of Engineers (Corps) exercises jurisdiction over the waters of the United States, and, to the extent that a property is determined to be a wetland, no filling or dredging may be accomplished on that property without first obtaining a permit from the Corps. (33 C.F.R. §§323, 330 (1991).) If no permit is obtained and the property is determined to be a jurisdictional wetland, the Corps is vested with the power to issue cease and desist orders.

Defining the term “jurisdictional wetland” begins with section 404 of the Clean Water Act, which extends Federal jurisdiction over the navigable waters of the United States. (33 U.S.C. §1344(a) (1989).) Navigable waters are defined in the Clean Water Act to encompass all “waters of the United States” (33 U.S.C. §1362(7) (1989); United States v. Akers (E.D. Cal. 1987), 651 F. Supp. 320, 321), and it has been noted that the term is not limited by traditional tests of navigability (Akers, 651 F. Supp. at 322). The term “waters of the United States” includes wetlands (33 C.F.R. §328.3(a) (1991)), which are defined as:

“those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.” 33 C.F.R. §328.3(b) (1991).

DEFENDANTS’ MOTION IN LIMINE NO. 3

Prior to trial, defendants moved in limine to exclude the testimony of DOT’s witnesses regarding whether the subject site should be considered a jurisdictional wetland and the effect such a classification would have on value. Defendants further moved to bar any opinions of value or highest and best use premised on the conclusion that the subject site was a jurisdictional wetland. Defendants contended that on the date DOT filed the condemnation action, March 8, 1989, it admitted that the part of the property proposed for development was not a wetland and that the Corps had not classified it as such.

In support of its motion, defendants attached excerpted copies of a draft environmental impact statement (EIS), published in 1987, a final environmental impact statement, published in 1990, and the FAP 426 Elgin-O’Hare Expressway Design Report, which were submitted by, among others, DOT and the Corps. The relevant portions of all three documents did not identify the subject site as wetlands. Defendants further contended that because the Corps had not designated the subject site as wetlands on March 8, 1989, the date the condemnation action was filed, no permit was required for development, thus supporting the conclusion that the subject site was not a jurisdictional wetland.

Defendants also attached to their motion the affidavit of Thomas Slowinski, former chief of the regulatory functions branch of the Army Corps of Engineers, which stated that the Corps did not consider the nonfloodway portion of the property to be jurisdictional wetlands requiring a permit on the date of condemnation. This affidavit was not offered into evidence at trial.

DOT responded to defendants’ motion on the grounds that the consultant’s study, upon which the draft EIS was founded, was conducted in 1985 or 1986 based upon 1979 criteria for establishing wetlands; that the 1990 final EIS did not purport to return to the area and reassess anything that was done in conjunction with the 1987 draft EIS; and that the construction of the detention basin did not appear in the environmental impact studies because it occurred following the consultant’s study upon which both the draft and final EIS were predicated. The trial court denied defendants’ motion, and the cause proceeded to trial.

DEFENDANTS’ CASE IN CHIEF

Christopher Lannert, a landscape architect and land planner, testified that he first became familiar with the subject site in 1980. Lannert opined that the highest and best use for the property was office use. He defined highest and best use as the use which is physically possible, jurisdictionally achievable, and developmentally feasible. Lannert based his opinion on the historical development of the project, the surrounding uses, and site specifics. Lannert explained the historical development of Forest Creek through the use of exhibits depicting the property at different times. Although the process was subject to constant revision, the concept underlying the development plan was to start in the southeast portion of Forest Creek and to develop the property towards the northwest.

Unit 3N, representing a subsequent phase of development, designated a portion of what was referred to as unit 3 to be resubdivided. As part of unit 3N, Lannert created an out-lot, parcels for development, a greenway easement along the western edge of the parcel, floodway, a utility easement, and an area for tree preservation. He earlier explained that out-lots are originally positioned as holding patterns within a development, and if, at the time a plat is prepared, a particular portion of the property does not have a specific use, that portion is designated as an out-lot.

The most recent plat for Forest Creek was designated as unit 3E The plat reflected the addition of buildings, a remodeling of the storm retention basin to construct a particular building, a reaffirmation of the vegetation, and the creation of an additional retention pond. Lannert further opined that the historic progression of development contemplated an outward orientation for constructing office, manufacturing, and warehouse space.

Lannert further testified that the trend of development in the surrounding area was for expanding office and industrial uses. He utilized aerial photographs taken from 1980 to 1990 to illustrate the increasing number of buildings in the surrounding area. The photographs depict an approximately four-square-mile area surrounding the subject site. Additionally, Lannert pointed out that the specific site had accessibility to a highly traveled corridor, orientation to amenities, and good visibility.

Lannert also prepared an exhibit to demonstrate what he thought possible for development on the subject site. Based upon, among other things, his knowledge of the annexation agreement and local ordinances, Lannert opined that a building and parking area occupying approximately 52,000 square feet of the subject site could be constructed. Allowing for variations in the building and parking configuration, Lannert further opined that it would be possible to construct an office building in the 90,000- to 150,000-square-foot range, while still meeting criteria for parking, floor area ratio, and permissible lot coverage. He further stated that his hypothetical building would require a special use permit from the City of Wood Dale because it would be partially located within the flood fringe area. Lannert opined that a special permit would issue because two other sites near the subject site were granted special use permits.

On cross-examination, Lannert admitted, with respect to the subject property now and the bottom of the detention basin, that the property had the general looks and characteristics of wetlands. Lannert further stated that because of the temporary nature of the storm water pond and because it had no outlets, the property could be classified as man-made wetlands. When specifically asked whether the property had wetlands on it, Lannert responded, “Yes, it has wetlands on it, natural and man made.” Lannert further testified that once wetlands are identified it is necessary to obtain a permit from the Corps.

On redirect examination, Lannert stated that based upon his conversations with other witnesses, and in particular Thomas Slowinski, the subject site had not been classified as wetlands. Lannert also stated that even if the area is man-made, if it is classified as wetlands, a permit is required.

John Stoetzel, the beneficial owner of the subject site, testified that he has developed numerous buildings over the past 20 years and that all of them involved the filling in or construction over or around retention basins. He further testified that some of the water runoff from the Motorola building, which was situated near the subject site, was directed to a temporary retention basin constructed on the subject site. Stoetzel chose that location because it was simple to accomplish and economical. Additionally, because he knew that he intended to develop the subject site, Stoetzel did not want to construct a “big, fancy retention” pond.

Stoetzel opined that the highest and best use of the subject site would be for the construction of a “significant, substantial office building.” The site has outstanding access and visibility. The neighborhood has hotels, and the surrounding office and industrial buildings are attractive. Additionally, the former Hamilton Lakes development (now the Chancellory), which has 200,000- and 300,000-square-foot office buildings, would provide an ideal “feed” for future clients.

In 1987, Stoetzel prepared a plan for the development of an office building on the property. The proposed building was three stories with an attached four-story parking deck. The plan was presented to the plan commission and city council of Wood Dale. Additionally, Stoetzel obtained a special use permit to construct the building within the confines of the floodplain as it was construed at that time. Following approvals from local authorities, Stoetzel applied to DOT for approval of plat. Stoetzel, however, was advised to discontinue developing the property because DOT was in the process of acquiring property along the Thomdale corridor, which would later be utilized for the ElginO’Hare expressway.

Based upon his experience as a developer, looking at the parcel as a possible location for development, and what he thought he could do with the property, Stoetzel opined that the subject site had a value of $1,450,000. Stoetzel also considered comparable sales in the area, which were the Agitron property, at approximately $6.25 per square foot, and the Marriott property, at approximately $9 per square foot. For comparison, Stoetzel valued the subject site at $7 per square foot. He further stated that the portion remaining after the taking would be of no value because of its small size and that the retention area was not a jurisdictional wetland. Stoetzel admitted that he had written the land trustee in 1987 urging it to reduce its service fees because the subject site, as a detention area, had little or no value.

Thomas Slowinski, a former employee and chief of the regulatory functions branch of the Army Corps of Engineers from 1976 until August 1989, testified that his office was responsible for section 404 wetland permitting and regulating wetland activities. Slowinski explained that if an area is determined to be a jurisdictional wetland, any development, placement of fill, or alteration would require a permit.

Slowinski testified that he was directly involved in the review of the Elgin-O’Hare corridor and that the Corps was a cooperating agency in the preparation of a draft environmental impact statement. As part of his duties, he conducted field reviews of all the significant wetland areas. Slowinski further testified that DOT hired a consultant to do a wetland determination for the entire corridor, including the preparation of maps on large scale aerial photographs.

As of March 1989, Slowinski considered the draft EIS as a written wetland determination by the Corps. When asked whether the portion of the subject site located outside of the floodway was a jurisdictional wetland, Slowinski replied that it was not mapped nor would it be considered a jurisdictional wetland.

Karl Karth, an MAI real estate appraiser, testified that he was hired in 1988 to provide Stoetzel with an economic evaluation of the subject site. Prior to reaching his opinion as to value, Karth discussed with Stoetzel the site and its location relative to the floodway. Karth also visited the site on six or seven occasions, drove through the neighborhood, reviewed the zoning, and checked sales data that was representative of the subject property. He also considered population trends, traffic trends, and major transportation routes. The site was adjacent to a major thoroughfare, it had excellent exposure, and would be attractive to a major tenant for multitenant occupancy. Karth opined that the highest and best use of the property, as of March 8,1989, was office use.

In determining value, Karth applied the sales or market approach, which takes into account sales of comparable properties. Karth considered numerous sales in the area before reaching his conclusion that the subject site had a value of $1,240,000. The entire amount was allocated to the portion taken and zero to the remainder because there was nothing that could be done with it. In particular, Karth utilized the Marriott sale, a neighboring hotel property, and the Agitron sale as bases for his comparison. Karth adjusted the value to $7 per square foot, after taking into account that the subject site was located partially in a floodplain. Karth further testified that the 45,000-square-foot building proposed by Stoetzel was consistent with the highest and best use of the property, but other potential uses were possible.

Marshall Skibbe, a licensed civil engineer, testified that he had previously engineered projects located within floodplains. Based upon his previous engineering experience with the property, Skibbe opined that an office and parking garage could have been built on the subject site. Skibbe based his opinion, in part, on his experience with the Motorola building, which was located to the south of the subject site, and the Freightliner project, also located near the subject site, both of which entailed the filling in of portions of the Salt Creek floodplain and the design of a basin for the storage of storm water.

Skibbe further testified that he designed the retention basin on the subject site. He determined that there was excess capacity in the basin, which meant that a building larger than the one proposed by Stoetzel could have been constructed. Skibbe later testified that if all the excess capacity storage were reclaimed a building footprint of approximately 28,000 square feet was possible. Therefore, under the terms of a local ordinance, a four-story building with a square footage in excess of 100,000 feet was possible. On cross-examination, Skibbe stated that he was not a wetlands engineer, but he knew that the property, as of March 8,1989, was not a jurisdictional wetland.

Frederick Barofsky, a real estate developer and building manager, testified that he considers six factors when evaluating a site: marketability, usability, developability, findability, accessibility, and visibility. Applying the six factors to the subject site, Barofsky stated that the site was in an excellent market. Although he had some concerns about the floodplain, floodway, and assuring himself that the property was not a wetland, Barofsky felt that the issues could be resolved, thus making the site usable. He later stated that usability was what made the subject site a “tough” site. Developability, which takes into consideration zoning and community attitude, was very good if not excellent, and the subject site additionally met his criteria of findability, accessibility, and visibility because of its location on Thomdale Road near Interstate 355. Barofsky further stated that he had previously worked on two projects located within floodplains. He further opined that it would be feasible to construct a substantial office site on the subject site.

On cross-examination, Barofsky stated that in his analysis he believed that the property within the detention basin was not a jurisdictional wetland under the Corps’ jurisdiction. Barofsky admitted that his opinion would be impacted if the property had been classified as a jurisdictional wetland.

Theodore Kowalski, a real estate appraiser and consultant, testified that he was hired in 1988 by DOT to appraise the subject site. Kowalski testified that he had previous experience appraising properties located within floodplains. In arriving at his opinion of value of the subject property, Kowalski researched his files to arrive at a value based upon comparable sales in the area. He subsequently inspected the site, compiled additional data, conferred with village officials, and spoke with the property owner and his engineers.

The trend and development in the area were towards modern developed offices, corporate headquarters, and industrial properties. Kowalski opined that the highest and best use of the subject site was for office development. In reaching his opinion, Kowalski considered such factors as the site’s frontage location, the presence of a stoplight intersection, the market trend in the area, zoning, and density. Based upon his research, Kowalski stated that a building in the range of 100,000 to 150,000 square feet could be built on the subject site. Kowalski further opined that the entire 7.5-acre parcel had a fair cash market value of $1,287,500. To arrive at that figure, Kowalski based his analysis on 206,000 square feet and applied a unit value of $6.25 per square foot. Kowalski assigned a value of $1,008,700 to the part taken, thus attributing $278,800 to the remainder before the taking. Adjusting for damages to the remainder, the final value (i.e., the amount to be paid to the property owner) was $1,159,700.

On cross-examination, Kowalski admitted that he believed the property to be a man-made wetland and that the owner of the property did it temporarily to store water. Kowalski was also impeached by a statement he gave during his deposition, wherein he admitted that he was referring to a jurisdictional wetland when he referred to the retention basin. Kowalski subsequently stated that to his knowledge the subject site was not a jurisdictional wetland and that the property was not on the wetlands map. If the property were wetlands, however, Kowalski would have to rethink his entire evaluation.

PLAINTIFF’S CASE IN CHIEF

Christopher Burke, a civil and water resources environmental engineer, testified that he and his company have been involved in approximately 300 wetlands-related projects over the past five years and that his firm is the floodplain and wetland review engineer for the City of Wood Dale. Burke stated that his firm was the prime consultant for the preliminary engineering, permitting, final engineering, and construction observation for the Wood Dale-Itasca flood control project. Burke further testified about his extensive experience working with private and public entities regarding water management issues.

Burke stated that in order to qualify as a wetland, the property in question has to have the necessary water, which can occur from water draining into it or onto it, and wetland-type plants, e.g., bulrushes and cattails. Burke further testified that he investigated the subject site in the fall of 1989 in connection with his work on the Wood Dale-Itasca flood control project. Based upon information obtained from his client, Burke’s engineers determined in fall of 1989 that the retention pond on the subject site was a mitigated wetland. Burke explained that a mitigated wetland arises in the circumstance where a developer fills in a jurisdictional wetland area, thus necessitating it to take an area that was not already wetland and make it into one.

In formulating his opinions about the subject site, Burke personally visited the site and collected soil and hydrologic data and information about groundwater. Additionally, he reviewed aerial photographs for historical perspective. Burke opined that as of March 8, 1989, there was nothing temporary about the detention basin on the subject site. When asked whether any part of the subject was a jurisdictional wetland as of March 8, 1989, Burke responded affirmatively. He further stated that jurisdictional wetlands were not solely distinguished based upon whether they were man-made or natural.

Burke also acknowledged his familiarity with the draft EIS and stated that he was aware that it did not depict the detention basin as a jurisdictional wetland. This fact did not change his opinion, however, because: (1) the draft EIS was prepared utilizing methodology that “superseded” the date of valuation; (2) the draft EIS was developed using aerial photographs that did not show the existence of the pond; and (3) other man-made ponds existed in the area which were classified as jurisdictional wetlands. Burke opined that as of March 8, 1989, it would not be possible to obtain all of the required permits necessary for a substantial development requiring less than one acre of filling and no wetland mitigation. Burke further acknowledged that the final EIS, prepared in 1990, and the final design report, entitled “FAP 426 Elgin-O’Hare Expressway,” did not delineate the retention basin as a jurisdictional wetland.

On redirect examination, Burke explained how the draft and final version of the EIS and the design report were prepared. A consultant was hired by DOT to compile the EIS. As part of its study, the consultant performed traffic counts and a tree survey and conducted a field investigation in 1986. Additionally, the consultant reviewed aerial photographs, which did not show the existence of the retention pond. In sum, according to Burke, the site in 1986 did not appear as it did in 1989.

Burke further explained that when the EIS was compiled DOT was uncertain as to the final alignment of the expressway; therefore, it was not concerned with “fine tuning the wetland delineation.” Further, if DOT were going to perform work in the area in 1989, a permit from the Corps would have been required. Burke stressed that prior to developing the subject site a wetland determination would have been required regardless of whether it were delineated as such on a wetland map. Finally, Burke stated that the national wetlands inventory map and the draft and final EIS served only as “large-scale guides.”

Allen Kracower, an urban planner, zoning consultant, and landscape architect, testified that he first became familiar with the subject property early in 1991. In order to acquaint himself with the property, Kracower reviewed various public documents, including the annexation agreement, environmental studies, a special use ordinance, engineering documents, the city’s comprehensive plan, and the plat of subdivision on file. Additionally, he visited the property on several occasions and walked around it at least twice.

In reaching his opinion regarding the highest and best use of the property, Kracower considered a number of factors: documentary research, including the comprehensive plan of Wood Dale and the special use ordinance; personal experience and training; inspection of the site and its physical characteristics; the natural resource constraints; the location of floodways and floodplains; photographs; and environmental data he received from Burke. Kracower further described the physical characteristics of the property as unique and unusually configured because of its flagpole shape. He further found it significant that the eastern side of the property was depressed in the form of a detention pond and that, according to his measurements, approximately 50% of the property was floodway, which meant that it could not be developed.

In addition to another environmental study, Kracower relied on an environmental study prepared by Burke, which found that the detention pond was wetland. Kracower opined, in his capacity as an urban land planner, that the subject property was constrained with significant environmental problems. He ultimately concluded that in consideration of “all the hurdles, especially with the approval of wetlands,” it would be very difficult to accomplish an office or industrial development. On cross-examination, Kracower stated that the remainder of the property could not be developed after the taking by DOT.

Neil King, a real estate broker, appraiser, and counselor, testified that he had previously valued properties with floodplains and wetlands present. He further testified that the presence of floodplains or wetlands affects the value of a given property. King viewed the property, reviewed the zoning ordinance, the highway plat map, sewer and water maps for Wood Dale, floodplain maps, drawings prepared by Burke and Kracower, and aerial photographs. He also reviewed, among other things, parking structure costs that were prepared on behalf of the property owner, the title insurance policy, comparable offerings, and the special use permit.

In determining the highest and best use of the subject site, as of March 8, 1989, King considered the size of the property, the physical characteristics of the property, the fact that most of the property was located in floodplain or wetland, and the rectangular part (i.e., the pennant), which was the most suitable for building, happened to have a detention pond that was a wetland. King also considered the trend of development in the area, zoning, contiguity to Salt Creek, the fact that Forest Creek is primarily an industrial park, and that there had been a particular ordinance enacted by the city permitting a particular building.

In conjunction with the construction of a building, King further considered some extraordinary costs: the necessity of having to run sewer and water lines to the proposed building, landfilling, and the construction of a retaining wall. Additionally, the building would not have the visual identity that office users typically desire. In order to reach the building it would be necessary to come around the corner from the end of a cul-de-sac.

King further considered that there were very few office buildings on Thomdale Avenue and that a large development nearby, which was unburdened by an expensive parking structure, wetlands, or extraordinary sewer and water costs, was only 63% occupied on the valuation date (March 8, 1989). King stated that an office building would have been economically “unfeasible [sic].”

King opined that the highest and best use of the subject site, when he first looked at it, seemed to be for its continuation as a detention basin. King stated, however, that he was somewhat swayed by the fact that the city permitted a 15,000- or 16,000-square-foot pad, which would allow the property owner’s 45,000-square-foot theoretical office building with the tiers of the parking structure in the flood fringe. With the aid of Kracower and Burke, King determined, using the same amount of fill required for Stoetzel’s proposed building, it would be possible to construct an approximately 8,000-square-foot, one-story industrial building with parking on grade or a 5,500-square-foot, one-story office building. King’s determination presumed that the city would permit the same kind of filling as originally permitted relative to Stoetzel’s proposed building.

King opined that the value of the entire property, as of March 8, 1989, was $80,000. He valued the part taken at $39,536, which he arrived at by dividing 7.5 acres into $80,000 and then multiplying the resulting per-square-foot value ($0,245) times the acreage taken (3.7 acres). King assigned no damages to the remainder because the amount of usable land remained the same. On cross-examination, King stated that he determined the amount of buildable square footage from calculations he had received from Burke and Kracower.

Following King’s testimony, defendants moved to strike Burke’s testimony on the grounds that it was improper for him to offer an opinion that the subject site was a jurisdictional wetland, when, in fact, the Corps did not consider it as such on the date of valuation. The trial court denied defendants’ motion, reasoning that whether the site was a jurisdictional wetland was a question for the jury to resolve.

Richard Roddewig, a real estate consultant and appraiser, testified that, in reaching his opinion about the highest and best use of the subject site, he first considered the physical constraints. According to the maps, the most prevalent physical constraint was that approximately 90% of the site was located in either a floodway or flood fringe. Additionally, there was an area at the northeast comer of the entire property that had a cattail marsh.

Roddewig further considered the “legal permissibility” which took into account the existing zoning, the annexation agreement, and the declaration of covenants. He considered the subject site to have very limited financial feasibility. Vacancy rates for office space were up, thus limiting financing available for development, especially for speculative office development. Roddewig concluded that the highest and best use of the property would be development of either a 5,000-square-foot office building or a one-story 8,000-square-foot warehouse or industrial building.

Roddewig further opined that Stoetzel’s proposed building, as of March 8, 1989, was infeasible for two reasons. First, parking decks are only constructed as a necessity because “you can’t get enough rent to offset the cost.” Additionally, there are extra costs, and not all people consider it an amenity.

Roddewig further testified that buyers and sellers are very concerned about the usable area of properties that are affected by floodplains or by wetland considerations. He also stated that a reasonably prudent and knowledgeable buyer would be “crazy” not to investigate for the presence of jurisdictional wetlands. Roddewig opined that the value of the entire property was $165,000 and that the value of the subject site was $81,000.

On redirect examination, Roddewig was specifically asked whether his opinion of value would differ if it were concluded that there were no jurisdictional wetlands on the property. Roddewig responded in the negative and explained that the problems with the fill applied to the detention pond and not whether it was classified a jurisdictional wetland.

Plaintiff’s final witness was James Dunn, a real estate agent and broker. Dunn opined that the highest and best use for the property was for a water retention basin. In support of his opinion, Dunn considered the zoning, the location of the property along the Salt Creek, the covenants and restrictions, the topography, and that sewer and water were possibly 600 feet away. He valued the entire property, as of March 8, 1989, at $332,570, taking into consideration the factors enumerated and eight sales of other properties in the area. Dunn further opined that the value of the part taken was $161,390, with no damages to the remainder. Dunn stated that although no broad market for wetlands exists, various State agencies can and do purchase wetlands. Therefore, it was his opinion, in light of the location and the State’s willingness to purchase, that the wetlands had a value of $1 per square foot.

The jury returned a verdict in the amount of $161,390, and the trial court subsequently entered judgment thereon. Defendants’ post-trial motion was denied, and this appeal followed.

Opinion

Defendants’ first contention is that the trial court erred in denying its motion in limine and motion to strike, which sought to exclude the opinion testimony of plaintiff’s witnesses regarding the status of the subject site as a jurisdictional wetland. Defendants initially argue that Burke’s opinion regarding the character of the subject site and certain infirmities underlying the environmental impact statements and final design report was irrelevant because it was contrary to the Corps’ earlier determination that the subject site was not a jurisdictional wetland. Plaintiff responds, in part, that the jury could not rely on the environmental impact statements (and the final design report) as sole determinants regarding whether there were jurisdictional wetlands located on the subject site because the jury was required to determine the fair cash market value as of the valuation date, March 8, 1989. Accordingly, Burke’s testimony was necessary to bring the facts up to date, thus providing the jury with an accurate basis upon which to value the subject site.

The law of eminent domain provides that the owner of property condemned for public use is entitled to just compensation measured by the fair market value of the property at its highest and best use. (Department of Public Works & Buildings v. Association of Franciscan Fathers (1977), 69 Ill. 2d 308, 314.) In an eminent domain proceeding, the only issue for jury resolution is to determine the just compensation to be paid to the owner of the property sought to be condemned. (City of Chicago v. Anthony (1990), 136 Ill. 2d 169, 174; Sanitary District v. Johnson (1931), 343 Ill. 11, 16.) Just compensation is the fair cash market value of the subject property at its highest and best use to be determined as of the date of the filing of the complaint to condemn. (Anthony, 136 Ill. 2d at 174.) “[T]he fair cash market value *** shall be the amount of money which a purchaser, willing but not obligated to buy the property, would pay to an owner willing but not obliged to sell in a voluntary sale ***.” 735 ILCS 5/7— 121 (West 1992).

“The highest and best use may be the present use to which the property is actually put or:

‘any capacity for fixture use which may be anticipated with reasonable certainty, though dependent upon circumstances which may possibly never occur, *** if it in fact enhanced the market value of the land in its present condition and state of improvement. The future prospective use affecting value must be a present capacity for a use which may be anticipated with reasonable certainty and made the basis of an intelligent estimate of value.’ Crystal Lake Park District v. Consumers Co. (1924), 313 Ill. 395, 406.” Anthony, 136 Ill. 2d at 174-75.

Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence. (People v. Boclair (1989), 129 Ill. 2d 458, 477; People v. Monroe (1977), 66 Ill. 2d 317, 322.) The fact to be proved may be ultimate, intermediary or evidentiary, so long as it is of consequence in the determination of the action. (Fed. R. Evid. 401, Advisory Committee’s Note.) A fact of consequence describes a proposition that exists within the case (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §401.1, at 128 (5th ed. 1990)), and whether a fact is of consequence is determined by the substantive law governing the case (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §401.1, at 128 (5th ed. 1990); accord Anthony, 136 Ill. 2d at 187 (in an eminent domain proceeding “it is eminent domain law which controls the admissibility of evidence for its truth”)).

Based upon the foregoing, we determine that the trial court did not err in allowing Burke’s testimony because it was relevant to the determinative issue of the fair cash market value of the subject site on the date the petition to condemn was filed. Precise determination of the amount a willing buyer would pay to a willing seller on the petition filing date required the trier of fact to be equipped with those facts necessary to reach a fully informed decision. Contrary to defendants’ assertion, we find no basis, and defendant cites no authority, upon which to exclude plaintiff's evidence regarding the wetland status of the subject site solely because the Corps had earlier participated as a cooperating agency in compiling the draft and final environmental impact statements. Additionally, Slowinski’s testimony that the Corps could order a landowner to cease and desist until obtaining a permit, which necessarily contemplates a wetland determination, undermines defendants’ contention that the Corps’ determination in conjunction with the promulgation of an environmental impact statement dispositively and solely determined the wetland status of the property until a subsequent determination was made.

Rather than considering it to be a dispositive determination, we view the wetland delineations depicted in the environmental impact statements as evidence that the jury could accept or reject in reaching its determination of just compensation. Moreover, to exclude Burke’s testimony regarding the wetland character of the subject site (i.e., construction of the retention basin), which revealed changed factual circumstances when compared with the data relied upon for the compilation of the draft and final environmental statements, would have deprived the jury of an accurate representation of the true physical state of the subject site on the valuation date. Accordingly, Burke’s testimony regarding the wetland character of the subject site and plaintiff’s valuation experts’ reliance thereon was legally relevant, notwithstanding the Corps’ earlier wetland determinations in the environmental impact statements.

Defendants next argue that plaintiff’s witnesses’ testimony that the subject site was unusable because of the presence of jurisdictional wetlands should have been barred under City of Chicago v. Anthony (1990), 136 Ill. 2d 169. In Anthony the supreme court, in an eminent domain proceeding, affirmed the trial court’s exclusion of expert valuation testimony which referred to the dollar amount of income contained in a sign lease proposal and testimony about rental income received from sign lease agreements on other properties. The court expressed its agreement with the principle that Federal Rules of Evidence 703 and 705, as adopted in Wilson v. Clark (1981), 84 Ill. 2d 186, applied to qualified expert witness testimony in eminent domain proceedings. The court noted, however, that the application of Federal Rules 703 and 705 was not intended to “ ‘guarantee the admissibility of all expert testimony that meets its criteria if such testimony runs afoul of other evidentiary requirements.’ ” (Anthony, 136 Ill. 2d at 186, quoting Barrel of Fun, Inc. v. State Farm Fire & Casualty Co. (5th Cir. 1984), 739 F.2d 1028, 1033.) Accordingly, “in order for facts or data to be reasonably relied upon by an expert in reaching an opinion of the fair cash market value of the property sought to be condemned, the facts or data must be legally relevant.” Anthony, 136 Ill. 2d at 190.

In the present case, defendants argue that because DOT’s valuation experts’ opinions were premised upon Burke’s legally irrelevant conclusions, the trial court erred in failing to exclude their testimony. Defendants’ argument is without merit because it assumes the validity of their earlier contention that Burke’s testimony about the presence of jurisdictional wetlands was legally irrelevant, which we have determined to be otherwise. Accordingly, the general principle espoused in Anthony, with which we agree, is inapposite. Defendants do not otherwise contest that the facts and data contained within Burke’s opinion would not be of a type reasonably relied upon by experts in the particular fields of plaintiff’s experts. Accordingly, the trial court did not err in allowing plaintiff’s valuation witnesses to testify that they considered Burke’s conclusions about the wetland status of the subject property in reaching their conclusions as to the fair cash market value of the subject site.

Moreover, there is some evidence in the record to suggest that at least one of plaintiff’s experts would have reached the same conclusion independently of Burke’s determination that the subject site was burdened with wetlands. Richard Roddewig testified unequivocally that his opinion of value would not have differed if it were concluded that there were no jurisdictional wetlands on the property.

Defendants finally argue that plaintiff is barred under the doctrine of equitable estoppel from asserting that the subject site was a jurisdictional wetland. Defendants maintain that because plaintiff participated as a cooperating agency in the preparation of the draft and final environmental impact statements, wherein the subject site is not depicted as a jurisdictional wetland, plaintiff should be estopped from now asserting that the property meets the criteria of a jurisdictional wetland for the purpose of establishing the fair cash market value of the subject site.

Equitable estoppel applies against the State only when there are some positive acts by State officials which may have induced the action of the adverse party under circumstances where it would be inequitable to render that party’s actions futile or ineffectual by allowing the State to rescind what it had previously performed. (Jack Bradley, Inc. v. Department of Employment Security (1991), 146 Ill. 2d 61, 81; Board of Trustees of the Addison Fire Protection District No. 1 Pension Fund v. Stamp (1993), 241 Ill. App. 3d 873, 879.) Its purpose is to prevent a party from asserting rights where the assertion of those rights would work a fraud or injustice. Stamp, 241 Ill. App. 3d at 879.

The positive act asserted by defendants is the publication of the draft and final environmental, impact statements. Defendants, however, failed to present any evidence at trial which would support the conclusion that the publication of those documents induced them to act under circumstances where it would be inequitable to allow defendants’ actions to be rendered futile or ineffectual.

Defendants further maintain that plaintiff’s actions were tantamount to misrepresentation. Contrary to defendants’ contention, we do not view plaintiff’s actions as an attempt to misrepresent the nature of the subject site for the sole purpose of reducing the valuation. Rather, plaintiff’s difference in position was the result of events subsequent to the consultant’s study upon which the environmental statements were premised. Defendants did not dispute or otherwise contradict Burke’s testimony that the environmental reports were predicated upon information and data gathered prior to the construction of the retention basin. Additionally, Lannert’s admission that the property was burdened with man-made wetlands on the valuation date further diminished the efficacy of defendants’ theory of misrepresentation. Furthermore, defendants submitted no evidence that they took any action in reliance on either environmental statement, and they do not dispute plaintiff’s contention that the building permit for the retention basin was obtained prior to the publication of the draft environmental statement. Accordingly, under the circumstances of this case, we perceive no inequity tantamount to a fraud or injustice necessitating the application of the doctrine of equitable estoppel.

Defendants’ final contention on appeal is that the jury verdict awarding them $161,390 was against the manifest weight of the evidence. Defendants argue that plaintiff’s valuation experts’ opinions were improperly predicated upon Burke’s testimony regarding jurisdictional wetlands, thus rendering the jury’s verdict against the manifest weight of the evidence. Defendants’ argument assumes the validity of their contention that Burke’s testimony was inadmissible, which we have determined to be otherwise. Accordingly, based upon our review of the entire record, our analysis above, and because the jury verdict fell within the range of values testified to by the parties’ valuation experts, we conclude that the jury verdict was not against the manifest weight of the evidence. See Illinois State Toll Highway Authority v. American National Bank & Trust Co. (1992), 236 Ill. App. 3d 696, 704.

For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

INGLIS, P.J., and COLWELL, J., concur.


author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SCOTT BONNEY, Defendant-Appellant.
    Second District
    Nos. 2—91—1449, 2—91—1450 cons.
    Opinion filed November 10, 1993.
    — Modified opinion filed December 15, 1993.
    G. Joseph Weller, of State Appellate Defender’s Office, and Anne S. Quincy, both of Elgin, for appellant.

      Michael J. Waller, State’s Attorney, of Waukegan, and Brian L. Buzard, of Mt. Morris (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Scott Bonney, appeals from a circuit court order revoking his probation and from an order finding the defendant guilty of indirect criminal contempt. On appeal, the defendant contends that: (1) the trial court erred in determining that he violated the terms of his probation and (2) the trial court incorrectly applied the standard of proof, “by a preponderance of the evidence,” in determining that the defendant was guilty of indirect criminal contempt.

The defendant entered a negotiated plea of guilty to perjury (Ill. Rev. Stat. 1991, ch. 95V2, par. 6-302(a)(l) (now 625 ILCS 5/6-302(a)(1) (West 1992))), driving while license revoked (Ill. Rev. Stat. 1991, ch. 95V2, par. 6-303(a) (now 625 ILCS 5/6-303(a) (West 1992))), and driving under the influence of alcohol (Ill. Rev. Stat. 1991, ch. 95V2, par. ll-501(a)(2) (now 625 ILCS 5/ll-501(a)(2) (West 1992))). In exchange, the State nol-prossed several charges and agreed to request a term of imprisonment of no more than three years. The trial court accepted the plea and sentenced the defendant to 9 months’ periodic imprisonment and concurrent terms of 24 months’ of probation for each felony offense and 12 months’ probation for the driving under the influence of alcohol conviction. As conditions of probation, the defendant was to undergo counseling and alcohol treatment as recommended by the probation department, follow all rules of the treatment and testing, and satisfactorily complete the program.

On November 14, 1991, the State filed a petition to revoke the defendant’s probation. The petition alleged that the defendant had violated the conditions of his probation by: (1) driving while his license was revoked, (2) appearing in court while intoxicated, and (3) failing to contact the Lake County Mental Health facility to begin a dual diagnosis group program. At the revocation proceeding, the State elected not to pursue the allegation that the defendant drove while his license was revoked.

Terry Evans, a Lake County probation officer, testified that she was assigned to the defendant in July 1991 and she visited the defendant in jail to advise him of the conditions of his probation. Evans gave the defendant the telephone number for Michael Falk, director of MEESA, a program for people with mental health and substance abuse problems. Evans told the defendant to contact Falk. Evans saw the defendant on July 31, 1991, when the defendant came to her office for a regular visit. At that time, the defendant admitted that he had not contacted the Lake County Mental Health facility or Falk. Evans told the defendant that he must contact Falk by August 15, 1991, or she would send a notice informing the State that the defendant had violated his probation.

On August 16, 1991, the defendant appeared in Judge Homer’s courtroom for a status date. According to Evans, who accompanied the defendant, the defendant was under the influence of alcohol. Evans based her conclusion on the fact that the defendant smelled of alcohol, spoke very quickly and was very agitated. The judge told the defendant to stop speaking, but the defendant did not. The judge told the defendant never to return to his courtroom in “this condition.” The defendant refused to take a breathalyzer test or a blood test. Either that day or the next, Evans sent a note to the State asking that it petition to revoke the defendant’s probation. On August 19, 1991, Evans called Falk to ask if the defendant had contacted him. Falk told her that the defendant had not contacted him.

The defendant telephoned Evans on September 10, 1991, and October 10, 1991, and told her that he was unable to reach anyone at the mental health facility, but even if he did reach someone, he had no transportation to get to the facility.

Falk, MEESA program coordinator for Lake County Mental Health, testified that MEESA is a community case management program for people who suffer from chronic mental illness and substance abuse. Through MEESA, a manager helps clients to get in touch with social service programs appropriate to their needs.

The defendant first contacted Falk on October 17, 1991. The defendant telephoned Falk and stated that he had to get into the MEESA program, but that he was unable to participate. Falk found the conversation rambling and confusing. Falk telephoned the defendant’s probation officer, Evans, and asked for clarification. Falk explained that there was a waiting list to begin the program, but Evans told him not to put the defendant’s name on the list because a warrant had issued for his arrest.

The defendant testified that he contacted the Lake County Mental Health facility on numerous occasions, but was unable to get in touch with Falk because Falk was often out or in a meeting. He estimated that he tried to contact Falk one dozen times in July 1991. The defendant admitted that he had a couple of beers before one of his court appearances, but he did not know if he was under the influence of alcohol.

The trial court noted that the order of probation did not indicate that the defendant was not to consume any alcoholic beverages. The court then found the defendant to be in indirect contempt of the court for his appearance in court before Judge Homer while under the influence of alcohol. The court further found the defendant to have violated a condition of his probation by not contacting Falk at the Lake County Mental Health facility. The court sentenced the defendant to a term of 30 months’ imprisonment for the offenses for which his probation had been revoked and to a concurrent term of six months’ imprisonment for contempt.

The defendant first contends that the trial court erred in finding that he violated the condition of his probation which required him to contact the Lake County Mental Health facility. He argues that the evidence shows that he made a good-faith effort to comply, but his affect disorder made compliance difficult without aid. The defendant argues that he eventually did contact Falk, but that his probation officer thwarted his efforts by denying him the chance to be evaluated for acceptance into the MEESA program.

In a revocation hearing, the State need only establish a violation of the conditions of probation by a preponderance of the evidence. Absent a clear showing that the decision to terminate was against the manifest weight of the evidence, that determination should not be overturned. (People v. Salamon (1984), 126 Ill. App. 3d 1066, 1070.) In this case, the defendant was to undergo counseling and treatment for alcohol abuse as directed by his probation officer. His probation officer gave the defendant the telephone number of Falk at the Lake County Mental Health facility, and she told him to make contact by August 15, 1991, or she would send a note to the State to start revocation proceedings.

The defendant offered excuses for his failure to contact Falk, and he stated that he had called Falk on numerous occasions in July 1991. On the other hand, his probation officer testified that the defendant did not tell her that he was having difficulty reaching Falk until September 10, 1991. The trial court was in a superior position to weigh the evidence and to judge the credibility of the witness and was entitled to draw reasonable inferences and reach conclusions therefrom. A reviewing court may not disturb the trial court’s finding merely because it might have reached a different conclusion had it been the trier of fact. People v. Cooper (1977), 66 Ill. 2d 509, 514.

We reject the defendant’s attempt to excuse this noncompliance by implying that because of his alcohol problems and major affect disorder it was essential that he receive assistance to comply with the probation conditions. The facts in the instant case are similar to those in People v. Moaton (1989), 182 Ill. App. 3d 161, where the defendant failed to meet with his probation officer as required under the terms of his probation. In Moaton, the defendant argued on appeal that his probation officer failed to assist him in resolving his problem of lack of ability to pay for transportation to the meetings. The appellate court rejected this argument because the defendant did not show that he diligently attempted to comply, did not show that his probation officer actually thwarted his efforts to comply, and only reported difficulty when his probation officer telephoned him. (Moaton, 182 Ill. App. 3d at 165.) Similarly, in the instant case, the defendant did not show that he diligently tried to comply by telephoning Falk, did not show that the probation officer actually thwarted his efforts, and only reported difficulty after the time for compliance was past. Evans’ instruction to Falk not to put the defendant’s name on the waiting list did not thwart the defendant’s attempt to comply as the time for compliance had already passed and a warrant had issued for the defendant’s arrest. We hold that the trial court’s finding that the defendant violated a condition of his probation is not against the manifest weight of the evidence.

Next, the defendant contends that the trial court erred in finding him in indirect contempt of court for appearing in Judge Homer’s courtroom while under the influence of alcohol. In our initial decision in this cause, we found that we lacked jurisdiction on this issue, and we declined to address its merits. Thereafter, the defendant filed a motion to supplement the record on appeal, together with a petition for rehearing of our finding of no jurisdiction. We hereby grant the defendant’s motion to supplement, deny his motion for rehearing, but modify the opinion pursuant to the defendant’s demonstration that the jurisdictional notice of appeal was properly filed in the trial court. See 134 Ill. 2d R. 606; Waste Management, Inc. v. International Surplus Lines Insurance Co. (1991), 144 Ill. 2d 178, 188.

On the merits, the defendant argues that the court’s contempt finding and its sentence thereupon must be reversed because the court did not use the appropriate “beyond a reasonable doubt” standard of proof (see People v. Gorisek (1988), 176 Ill. App. 3d 266, 268), but improperly relied upon the lesser standard of “preponderance of the evidence.” He relies upon the court’s comments in open court:

“I’ll find him in contempt as to paragraph two [of the petition to revoke, wherein the State alleged that the defendant had appeared in court while intoxicated] and find that the State has met their burden by a preponderance of the evidence.
As to paragraph three [of the petition to revoke, wherein the State alleged that the defendant failed to contact Lake County Mental health to begin the dual diagnosis group], I don’t feel his efforts were in good faith. *** I’ll find that the State has met their burden as to Count III. I’ll find him in contempt as to Count II.”

The State agrees that the law requires that contempt in this case be proved beyond a reasonable doubt. It argues alternatively, however, (1) that the record includes ample evidence to support the contempt finding beyond a reasonable doubt; or (2) that the record does not indicate that the court based its contempt finding upon a “preponderance” standard.

We initially find no basis for the State’s latter claim. The court’s comments precisely at the time of its finding contempt clearly refer to the “preponderance of the evidence” standard. They make no reference to the applicable “reasonable doubt” standard, and we find no basis for concluding that the court used that proper standard. As to the State’s former alternative argument, we note that the State has presented no authority for its claim that the contempt judgment should be affirmed despite the court’s reliance on an improper standard of proof. We do not find that the record supports affirmance.

For the reasons stated above, the judgment of the circuit court of Lake County revoking the defendant’s probation is affirmed; the court’s judgment of contempt is reversed.

Affirmed in part; reversed in part.

DOYLE and QUETSCH, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HARVEY LEE BROOKS, a/k/a Harvey Lee Gray, Defendant-Appellant.
    Fourth District
    No. 4—93—0096
    Opinion filed October 22, 1993.
    — Modified on denial of rehearing December 8, 1993.

      James C. Economy, of Decatur, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant was convicted of home invasion (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 11(a)) and aggravated battery (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 4(b)(10)) following a jury trial in Macon County. He was subsequently sentenced to a term of 10 years’ imprisonment for the home invasion conviction and a concurrent term of 4 years’ imprisonment for the aggravated battery conviction. Defendant appeals, contending the trial court abused its discretion by (1) denying his motion for bail bond pending appeal; (2) quashing his subpoena duces tecum for certain township records; (3) allowing into evidence his medical records and testimony regarding treatment by his health-care giver; (4) denying his post-trial motion; and (5) permitting the State to introduce previously undisclosed evidence of his prior convictions, as well as those of one of his witnesses. Defendant also contends he was denied the effective assistance of counsel. We reject all of defendant’s arguments and affirm. The evidence will be reviewed only as it is important to the issues raised.

Defendant first contends the trial court abused its discretion by denying his motion for bail bond and stay pending appeal without giving any reasons for such denial. Defendant orally moved for an appeal bond at his sentencing hearing on December 30, 1992. The motion was denied, although the trial court gave no reasons for the denial. According to the docket sheet, on January 4, 1993, at the hearing on the motion to reimburse counsel, defendant filed in open court a motion for stay pending appeal. That motion was also denied. No transcript of this hearing appears in the record on appeal.

Defendant originally had bail set at $20,000 and he deposited $2,000 cash as bail security. After the jury verdict, the trial court increased the amount of bail by $10,000 and defendant deposited the additional cash. Following sentencing, the trial court released the last $1,000 cash posted by the defendant’s grandmother. After the hearing on the motion to reimburse counsel, the trial court ordered defendant to pay $300 in court costs, to be deducted from the cash bond, with the remaining to be transmitted to the bond assignee.

Supreme Court Rule 609(b) provides:

“If an appeal is taken from a judgment following which the defendant is sentenced to imprisonment, *** the defendant may be admitted to bail and the sentence or condition of imprisonment *** stayed, with or without bond, by a judge of the trial or reviewing court. Upon motion showing good cause the reviewing court or a judge thereof may revoke the order of the trial court or order that the amount of bail be increased or decreased.” (134 Ill. 2d R. 609(b).)

Supreme Court Rule 609(b) provides that persons may be admitted to bail at the discretion of a judge of the trial or reviewing court. People v. Williams (1991), 143 Ill. 2d 477, 485, 577 N.E.2d 762, 765.

Defendant acknowledges that the granting of a motion for bail pending appeal is within the trial court’s discretion. Defendant boldly asserts “Because the trial court clearly failed to afford this defendant even a cursory inspection to determine whether he should be admitted bail pending appeal, the court erred and arbitrarily denied the defendant’s motion for bail bond pending appeal.”

It was not necessary for the trial court to explain why bail was denied. The conviction and trial record in the absence of stated reasons may stand as the trial court’s basis for denying bail. United States ex rel. Kane v. Bensinger (N.D. Ill. 1972), 359 F. Supp. 181, aff’d (7th Cir. 1973), 484 F.2d 874.

On June 8, 1993, defendant filed a motion in this court seeking bond pending appeal. This court denied his motion on June 14,1993.

The conviction and trial record are a clear basis for denial of bail by this court. Defendant was convicted of aggravated battery and home invasion. The victim was a 68-year-old man who was physically disabled because of a recent stroke and suffered severe injuries during this altercation. Defendant had five previous felony convictions, including convictions for theft over $300, resisting a peace officer, harassment of witnesses, and aggravated battery and assault. See Ill. Rev. Stat. 1991, ch. 38, par. 110 — 5 (factors for allowing bail).

Next, defendant contends the trial court abused its discretion by quashing his subpoena duces tecum. Defendant sought certain Decatur township records which would provide last known and current addresses for certain people, namely Jamie Sutton, Jamie Lee Jones, Arthur Wright, Opal Reed, Frederick Reed, and William Marsland, which people defendant believed to be witnesses to his version of this incident. These witnesses were “street people” and defendant believed they were receiving Macon County township assistance which would require them to register their last known address with the township office.

Section 11 — 9 of the Illinois Public Aid Code (Code) provides:

“For the protection of applicants and recipients, the Illinois Department, the county departments and local governmental units and their respective officers and employees are prohibited, except as hereinafter provided, from disclosing the contents of any records, files, papers and communications, except for purposes directly connected with the administration of public aid under this Code.
In any judicial proceeding, except a proceeding directly concerned with the administration of programs provided for in this Code, such records, files, papers and communications, and their contents shall be deemed privileged communications and shall be disclosed only upon the order of the court, where the court finds such to be necessary in the interest of justice.” Ill. Rev. Stat. 1991, ch. 23, par. 11 — 9.

The docket entry for December 8, 1992, indicates the cause was called for hearing on the motion of the supervisor of general assistance for the town of Decatur, regarding whether the contents of the records of those previously named persons should be disclosed. The docket sheet indicates “Witnesses sworn; evidence heard. Arguments heard,” and the court quashed the subpoena. The court specifically found that based upon the evidence produced it was not necessary for the interest of justice that these records be disclosed.

The appellant has the burden to present a sufficiently complete record of proceedings at trial to support a claim of error, and in the absence of such a record on appeal, it will be presumed that the order entered by the trial court was in conformity with the law and had a sufficient factual basis. Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 391-92, 459 N.E.2d 958, 959.

Defendant contends the trial court erred in quashing his subpoena duces tecum. However, he failed to include in the record on appeal a transcript or report of proceedings of the hearing on the issue of whether to disclose the contents of these privileged records. Accordingly, we conclude the trial court properly quashed the subpoena and reject defendant’s contention.

Defendant next asserts the trial court erred by allowing into evidence his medical records and testimony regarding the nature of the injuries and treatment he received on July 2, 1992. He contends he did not waive the physician-patient privilege against disclosure of these records. (See Ill. Rev. Stat. 1991, ch. 110, par. 8—802.) Besides failing to object at trial, or include this contention in his post-trial motion (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130), defendant failed to cite in his brief any authority or argument to support his position. Defendant has therefore waived this issue. (134 Ill. 2d R. 341(e)(7).) Our review, therefore, is limited to a determination of whether the admission of this evidence was plain error.

The evidence presented here was neither closely balanced nor was any error so fundamental and of such magnitude that the accused was denied a fair trial. The testimony presented was that of the nurse who treated defendant for the cut on his left thumb. She saw him on July 2, 1992, at approximately 12:15 p.m. She testified the cut was fairly deep, approximately one inch long, although she could not tell if there had been much bleeding and she believed the cut had been present on his hand for some period of time. Defendant admitted he was cut on his left thumb by the knife the victim was yielding when they had the altercation in the apartment. The medical records of the hospital visit were not admitted into evidence. Thus, defendant suffered no prejudice by this testimony. There is no dispute that defendant in fact cut his hand, but only the circumstances of his receiving that cut were in question. The nurse’s testimony did not impact on this issue. Thus, no plain error occurred.

For his fourth argument, defendant contends the trial court erred by denying his post-trial motion for a new trial based on newly discovered evidence. The newly discovered evidence consisted of three witnesses who stated in their affidavits that the victim sustained injuries to his face by falling down the stairs outside his apartment due to his extreme intoxication several hours before defendant was in the victim’s apartment. These witnesses also stated the victim invited defendant into the apartment to drink beer and defendant did not force his way into the apartment that evening.

Generally, newly discovered evidence requiring a new trial must be material and not merely cumulative, so conclusive if proved it would probably have changed the outcome and incapable of discovery prior to trial by exercise of due diligence. (People v. Lawson (1992), 232 Ill. App. 3d 284, 298, 596 N.E.2d 1235, 1245.) Close scrutiny is applied to motions for a new trial based on newly discovered evidence in order to prevent fraud which parties may be tempted to use as a last resort to avoid an adverse verdict. A trial court’s ruling will not be disturbed absent a showing of manifest abuse of discretion. People v. Washington (1992), 230 Ill. App. 3d 1002, 1007, 596 N.E.2d 114, 118.

The trial court did not abuse its discretion by denying defendant’s motion for a new trial. These statements by the witnesses were not newly discovered evidence and were cumulative of testimony given by Grayned and defendant, namely that the victim hurt himself by falling down the stairs outside his apartment and that the victim invited the defendant into the apartment to drink beer. This evidence only added to defendant’s version of the events of the incident and the jury could still disregard defendant’s contention and believe the State’s witnesses. Thus, this “new evidence,” discoverable before trial, was cumulative and not likely to change the outcome.

Defendant next alleges the trial court erred by allowing the State to introduce undisclosed evidence of prior convictions of Grayned and himself. As to Grayned, on cross-examination, he admitted to having two misdemeanor theft convictions and one felony theft conviction. Defendant, on direct examination, indicated he had previously been convicted of more than one felony. On cross-examination, he could not remember if he had two or three prior felony convictions.

Prior to closing arguments, the State indicated it had, as rebuttal evidence, five prior felony convictions of defendant. Defense counsel objected to admission of any more than two prior convictions because only two have been disclosed in discovery. The trial court admitted evidence of all five prior convictions for the limited purpose of impeachment. The trial court agreed with the State that defendant had “opened the door” on direct examination by bringing up his prior convictions. The court believed the State properly cross-examined defendant regarding the correct number of prior convictions, and thus all five prior convictions could be admitted for impeachment purposes.

This court has held that Supreme Court Rule 412(a)(vi) (134 Ill. 2d R. 412(a)(vi)) requires the State to furnish to a defendant in advance of trial any records of defendant’s prior convictions which are in the State’s possession. (People v. Kunze (1990), 193 Ill. App. 3d 708, 724, 550 N.E.2d 284, 295.) The State’s failure to disclose constitutes error. Kunze, 193 Ill. App. 3d at 724, 550 N.E.2d at 295.

A reviewing court will not reverse a judgment of conviction merely because error has been committed, unless it is evident that real justice has been denied or that a finding of guilt may have resulted from such error. (People v. Thomas (1991), 220 Ill. App. 3d 110, 122, 580 N.E.2d 1353, 1362.) Defendant may not be heard to complain of error he invited. (People v. Rodriguez (1991), 227 Ill. App. 3d 397, 408, 592 N.E.2d 18, 26.) Where a defendant had already testified to four convictions, the disclosure of another conviction would not have the prejudicial effect which would exist if there were no earlier proof of other criminal conduct. People v. Bey (1969), 42 Ill. 2d 139, 147, 246 N.E.2d 287, 292; People v. Smalley (1973), 10 Ill. App. 3d 416, 426, 294 N.E.2d 305, 311.

We find no reversible error occurred. First, defendant opened the door to his possible impeachment by admitting on direct examination to more than one prior conviction. This opened the door for the State to cross-examine him as to the accurate number of his convictions. We do not condone the State’s failure to disclose all of defendant’s prior convictions which the State intended to use for impeachment purposes. However, under the facts of this case, no prejudice occurred by the jury being told defendant had five rather than three prior convictions.

Finally, defendant contends he was denied the effective assistance of counsel. He contends trial counsel erred by (1) allowing him to testify; (2) permitting the waiver of the physician-patient privilege; (3) failing to object to the disclosure of his criminal history, as well as that of his witness; and (4) failing to obtain the testimony of the additional witnesses.

Ordinarily, to prevail on a claim of ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness and (2) counsel’s substandard representation so prejudiced the defense as to deny the defendant a fair trial. (People v. Horton (1991), 143 Ill. 2d 11, 23, 570 N.E.2d 320, 325.) To show actual prejudice, defendant must establish that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington (1984), 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.) A reviewing court does not have to determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. (People v. McCarthy (1991), 213 Ill. App. 3d 873, 886, 572 N.E.2d 1219, 1227.) Allegations arising from matters of judgment or trial strategy will not support a claim of ineffective assistance of counsel. People v. Clark (1991), 207 Ill. App. 3d 439, 450, 565 N.E.2d 1373, 1380.

As to defendant’s contention that trial counsel was ineffective because it allowed defendant to testify, this was a matter of trial strategy to which defendant agreed and thus is no basis to substantiate defendant’s contention. Moreover, as to the remaining allegations, defendant cannot show he was prejudiced by any of these alleged errors. First, as noted above, defendant was not prejudiced by the admission of the medical records or the testimony regarding his wound. Likewise, defendant was not prejudiced by failing to secure the testimony of the additional witnesses since their testimony was merely cumulative of his own as well as that of Grayned. Finally, as to defendant’s contention that trial counsel was ineffective because of his failure to object to the disclosure of his past criminal history, defense counsel did object to the disclosure of any more than two prior convictions, although the trial court overruled the objection. Moreover, defendant suffered no prejudice by this disclosure since the jury already knew he had multiple prior convictions but was only made aware of the exact number of such convictions.

Accordingly, we reject all of defendant’s contentions and affirm the judgment of the circuit court of Macon County.

Affirmed.

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