author: JUSTICE FREEMAN

text:
    DEBRA HUNTER, Successor Adm’r of the Estate of Carl Hunter, Deceased, Plain tiff-Appellant, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Defendant-Appellee.
    First District (3rd Division)
    No. 1—88—2260
    Opinion filed June 20, 1990.
    Rehearing denied July 18, 1990.

      William J. Harte, Ltd., and Richard J. Prendergast, Ltd., both of Chicago (William J. Harte, Richard J. Prendergast, James Pendergast, and Joseph E. Tighe, of counsel), for appellant.
    James P. Daley, George H. Brant, and Daniel J. Mohan, all of Chicago, for appellee.
   JUSTICE FREEMAN

delivered the opinion of the court:

This appeal arises out of a car-train collision which occurred on April 8, 1972, in Glenview, Illinois. Plaintiff, Debra Hunter, as administrator of the estate of Carl Hunter, deceased, brought suit against defendants, Chicago & North Western Transportation Company (C&NW), and its employees, Robert Markham, John Klysen, and Alfred Johnson. Following a jury trial, a verdict was entered in favor of plaintiff and against C&NW as to count I (survival action) and in favor of C&NW as to count II (wrongful death action). Plaintiff appeals, contending that: (1) the jury’s finding on the percentage of fault attributable to the plaintiff was against the manifest weight of the evidence; (2) the percentage of fault attributed to plaintiff was the result of trial error and improper argument of counsel; and (3) the trial court erred in denying plaintiff’s motion for judgment notwithstanding the verdict as to the issue of liability for wrongful death. We affirm.

Lake Avenue is a four-lane highway in Glenview, which runs east and west, and is intersected by a single C&NW railroad track, which runs north and south. Both sides of the railroad crossing are protected by highway warning signs, which are located 600 feet from the crossing, cross-buck “railroad crossing” signs on the shoulders of the road, four flashing lights mounted on masts on the roadside, four overhead cantilevers, and a crossing bell. There are a total of 16 signals, eight facing east and eight facing west.

On April 8, 1972, at about 7:30 a.m., plaintiff’s decedent was driving east on Lake Avenue. C&NW’s freight train, which had originated in Green Bay, Wisconsin, was proceeding to Chicago. The train maintained a speed of 30 miles per hour, five miles under the legal limit, as it entered the Lake Avenue crossing. Hunter’s car and the train collided. Hunter received immediate medical attention for injuries which he sustained as a result of the collision. He died 10 years later, on February 8, 1982, in Centre, Alabama.

John Klysen, a retired engineer for C&NW, testified that at 1,200 feet from the train crossing the signaling devices are supposed to be activated. Since there are usually a few vehicles which continue to cross the tracks after the signals have been activated, the train crew watches the bull’s-eyes, which indicate whether the crossing signals are actually flashing. Klysen stated that he faintly recalled that, near the Lake Avenue crossing, there was a fenced-in area on the right side where truck trailers were parked. The trailers were about 40 feet in length, and, at about 300 feet from the crossing, the trailers obstructed his view of approaching eastbound traffic. However, he was able to see the traffic which was about two car lengths back from the crossing and, prior to the collision, he observed one or two vehicles, on both sides of the tracks, stopped at the crossing.

Alfred Johnson (a retired C&NW brakeman), Robert Markham (previously employed by C&NW as a fireman and engineer), and Thomas Crubaugh each testified on behalf of plaintiff pursuant to section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1102). Markham testified that upon reaching the whistle stop, he activated the train bell and blew the whistle, giving two longs, a short and a long. He observed that the bull’s-eyes were flashing, but he did not recall how many he had seen.

Both Johnson and Markham stated that cars continued to cross the tracks after the activation of the signals. Johnson testified that prior to the collision, he observed two eastbound cars stopped at the crossing. Neither Markham nor Johnson saw decedent’s car approach the track.

After the collision, Johnson checked for interference on the train tracks, uncoupled the train cars to permit the passage of traffic and emergency vehicles, and then checked the signals. He stated that he could still hear the train bell ringing and, while he did not notice whether the signals were dirty or snow covered, he could see them flashing.

Crubaugh, the signals engineer and an officer of C&NW, testified that, generally, the Illinois Commerce Commission orders the type of signaling device to be installed at a given crossing. According to him, the cantilevers at the Lake Avenue crossing, which were ordered by the Commission, were installed in March 1959. All of the signals at the crossing are powered by AC power, and in the event of a loss of electrical power, the circuitry of the crossing automatically changes over to a battery-fed system. The voltage to each signal is 9.5 regardless of whether it is powered by electricity or by battery, and an inoperative bulb in any signal will not affect the operation of the other signals.

Crubaugh also testified that the Commission requires a minimum of 20 seconds advance signal warning before a train reaches the crossing. An approaching vehicle at the Lake Avenue crossing has 30 seconds to view the signals before the train reaches the crossing. In response to whether a crossing gate would have made the Lake Avenue crossing safer, Crubaugh stated, not necessarily, because motorists have been known to drive around the gates.

The evidence deposition of Jack DeChristopher, an occurrence witness, was read into the record. On direct examination DeChristopher stated that on the date of the collision he was traveling east, in the curb lane, and the decedent was driving behind him. DeChristopher was traveling at about 30 to 35 miles per hour when the decedent passed him.

DeChristopher first observed the train when it was at the crossing and, according to him, there was nothing about the signaling devices that indicated that the train was approaching. He stated that he heard neither a bell nor a whistle and, while he did not notice the overhead signals, he did observe that the signaling devices on the curb lane were not operating.

As he approached the crossing, DeChristopher noticed that there was another car stopped to the left of him. He stated that at the time of the collision, decedent’s car was two to three car lengths ahead of him; there was only a split second between the time he stopped his car behind the decedent and the collision. After the collision, DeChristopher stood about three feet away from the signaling device on the curbside. The signals were working, but they were not visible because they had a “bad film and were dirty.”

On cross-examination DeChristopher testified that he did not skid or slide when he stopped his car, and he never felt in danger of hitting the decedent’s car from behind. Defense counsel referred DeChristopher to an earlier statement where, in response to the question of whether the decedent was speeding, DeChristopher responded, “[o]ff the record, yes.” Also, in that earlier statement, in response to whether DeChristopher had noticed decedent’s car a block or two prior to coming to the tracks, DeChristopher responded, “[w]ell, let’s leave it this way for his sake.”

Henry DePaepe, the lead signal maintainer for C&NW, testified that in addition to checking for proper operation of the signals, he was required to inspect the lights and insure that they were clean. Each time an inspection is performed the inspector records the date and time of the inspection and the operating condition of the signals in a record book. The book also contains notations of any crossing accidents. In the event of an accident, the signal maintainer is required to immediately turn in the book to his supervisor.

The record book for the Lake Avenue crossing, in which DePaepe had recorded this collision, dated back to 1957. Other than decedent’s collision, no others were recorded therein. There was a notation in the book which indicated that the signals at the Lake Avenue crossing had been inspected on April 3, 1972, and that they were “operating okay.”

On the date of the collision, DePaepe was called to the scene of the crossing. He observed that the signals facing both the east and west were operating properly. As a result of the collision, the pole, which electrically powered the signals, was down, and the signals were operating on battery power. Nevertheless, according to De-Paepe, the signals continued to flash with adequate brightness.

In her second amended complaint, plaintiff alleged a survival action (count I) and a wrongful death action (count II). The jury returned a verdict in favor of plaintiff and against C&NW as to count I and found that both C&NW and decedent had been negligent. The jury determined the damages to be $1.5 million and attributed 95% of the fault to decedent and 5% to C&NW. The resulting damages award was $75,000. With respect to count II, the jury found in favor of C&NW. The findings as to Markham, Klysen and Johnson are not the subject of this appeal.

Plaintiff’s first contention on appeal is that the jury’s finding, that plaintiff’s decedent was 95% contributorily negligent, was against the manifest weight of the evidence. She seeks a new trial on this issue and urges several factors in support thereof.

Before addressing plaintiff’s arguments, we first set out the applicable legal standard. A verdict is not against the manifest weight of the evidence unless it is palpably erroneous and wholly unwarranted. (Frankenthal v. Grand Trunk Western R.R. Co. (1983), 120 Ill. App. 3d 409, 415, 458 N.E.2d 530.) It is well settled that the jury has the function of resolving conflicts in evidence and the credibility of witnesses. (Bradfield v. Illinois Central Gulf R.R. Co. (1985), 137 Ill. App. 3d 19, 23, 484 N.E.2d 365, affd (1987), 115 Ill. 2d 471, 505 N.E.2d 331.) A reviewing court will examine the record to determine a basis upon which the verdict can be supported. (Slowik v. Schrack (1979), 77 Ill. App. 3d 42, 45, 395 N.E.2d 753.) Absent evidence favoring the opposite conclusion, that is clearly evident, this court will not substitute its judgment for that of the jury. DePaepe v. Walter (1979), 68 Ill. App. 3d 757, 760, 386 N.E.2d 875.

Plaintiff first argues that between 1959 and the date of decedent’s collision, C&NW made no effort to determine the need for a crossing gate even though 18,000 vehicles traversed the crossing daily in 1972. Further, she argues that, at the Lake Avenue crossing, a motorist’s view of an approaching train, and a trainman’s view of approaching traffic, is obstructed.

Defendant has responded that pursuant to an article in the Illinois Commercial Transportation Law, which governs the safety requirements for rail carriers (Ill. Rev. Stat. 1987, ch. 951/2, par. 18c— 7401(3)), once the Commerce Commission has ordered a particular type of warning device at a crossing, that device is “deemed adequate and appropriate.” Defendant correctly maintains, citing to the legislative debates relating to this law, that the legislative intent was that the issue of the adequacy of the warning devices at a crossing, once ordered by the Commission, would no longer be an issue in this type of litigation. Once the Commission has investigated and ordered the installation of a particular kind of warning device, its decision is conclusive, and the railroad is precluded from installing any other signal. 82nd Ill. Gen. Assem., House Proceedings, April 22, 1982, at 114-23.

We have reviewed the legislative debates, and we note that it was also the intent of the legislature that this law would not “adjudicate any pending litigation.” (82d Ill. Gen. Assem., House Proceedings, April 22, 1982, at 116.) Review of the record in this case reveals that this lawsuit, which was commenced with a complaint at law on March 13, 1978, was pending at the time this law was passed. Thus, while the provisions under the safety requirements article represent the current state of the law in Illinois, this was not the applicable law at the time this lawsuit was filed and pending. We are therefore bound to resolve the issues raised by this litigation under the law as it existed prior to the passage of the safety requirements article and as it was stated in Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1970), 121 Ill. App. 2d 445, 257 N.E.2d 216, aff’d (1971), 49 Ill. 2d 118, 273 N.E.2d 809.

We have noted in the past that railroad crossings are inherently dangerous and not every circumstance which might be said to increase the degree of danger will impose a duty upon the railroad to provide extraordinary means to protect it. (Merchants, 121 Ill. App. 2d at 445.) Notwithstanding that, the fact that the Illinois Commerce Commission has not ordered a certain warning or signaling device at a crossing does not thereby relieve a railroad of negligence in not providing such a device. (Merchants, 121 Ill. App. 2d at 456.) The amount of protection required is dependent upon the circumstances existing at the particular crossing, at the particular time of the approach of the vehicle. (Merchants, 121 Ill. App. 2d at 456.) Factors to be considered in determining the amount of protection include population and traffic in the area, physical obstructions to view, and the effect which confusion, incident to railroad or other business in the area, would have on the sight or hearing of ordinary signals. Merchants, 121 Ill. App. 2d at 456.

Here, the collision occurred on a Saturday at about 7:30 a.m., and the weather was clear. Even though plaintiff presented testimony of the high volume of daily traffic on Lake Avenue, there was no evidence presented which would indicate that, at the time of this collision, the traffic was heavy. It is undisputed that the view of the train was obstructed until a motorist was within 350 feet of the train crossing. However, in light of the testimony that the warning signals were present and operational, whether the obstructed view would require the railroad to upgrade the crossing signals was properly a question for the jury. (Bassett v. Burlington Northern R.R. Co. (1985), 131 Ill. App. 3d 807, 812, 476 N.E.2d 31.) Finally, there was no evidence to indicate that the ordinary operation of businesses in the area impaired the sight or hearing of the crossing signals.

Plaintiff next argues that the overhead signaling devices for the eastbound traffic were either not operating or were not visible within the mandated 800 feet range, nor were the roadside signals visible from as close a distance as three feet. As support for her argument that the signals were not operating properly, plaintiff points to testimony that after the devices were “allegedly” activated traffic continued to cross the tracks.

First, the record reveals that Crubaugh testified that the Commerce Commission requires that the signals be visible from as far away as 800 feet from the crossing, and as close as 25 feet from it. Thus, according to him, very close proximity to a signal renders it not visible. Second, we reject plaintiff’s assertion that continuing traffic was evidence that the signals were nonoperational. The testimony at trial was that after the signals were activated, cars appeared to slow, look and then cross. We do not believe it to be an uncommon practice for a motorist, after observing the warning signals of an approaching train, to attempt to cross the railroad tracks regardless of the warnings.

Plaintiff then argues that the only evidence to support defendant’s claim that the signals were operating properly was the testimony of Philip Noll, who stated that he observed the signal over the westbound lane. As further support for her argument, she maintains that neither Noll nor DeChristopher was able to testify that he had observed the signals operating prior to the collision and that Klysen neither observed the bull’s-eyes nor did he know whether they were working.

Plaintiff has mischaracterized the testimony of Noll and Klysen. Philip Noll testified that on the date of the incident he was driving east, on the inside lane, on Lake Avenue. He noticed that the signal on the left-hand side and the cantilevers over the roadway were flashing. He also heard the train whistle blow and noticed that a car approaching from the west had slowed down to stop. Noll slowed down as well. He stated that he was about 35 feet from the tracks when he first noticed “this activity,” but that he had noticed the signals when he was farther back. After the collision, when Noll looked at the signals, it appears to him that, as a result of the collision, snow had been splashed up on the lower right signal around the collar area. He could not remember whether he saw any snow or a film on the lens itself. On cross-examination, Noll stated that prior to seeing the train he did not recall hearing the whistle and he admitted that, in a prior statement, he had stated that the lenses on the signals were covered with a dirt film and were not bright.

In response to plaintiff's questions whether he had seen the flashing signal over the westbound traffic, Noll stated that he was not certain whether he first observed the overhead flasher or the one in the lower corner. In response to whether he had seen the flashing light on the north shoulder for the westbound traffic, Noll stated that it was not the first thing that he saw; the first thing he saw was the overhead signal.

After review of Noll’s testimony, it is apparent to us that his answers focused on which signal he had first observed; not on the fact that plaintiff’s attorney was asking about westbound, as opposed to eastbound, traffic. Although inconsistent about which signal he observed first, Noll’s testimony was that, upon approaching the crossing, his attention was drawn by the flashing signals.

Klysen testified that he observed that the bull’s-eyes for the right side of the highway were flashing; however, he could not recall whether the overhead signals were also flashing. The only witness to testify that the flashers were not working prior to the collision was DeChristopher, who also stated that he observed them to be working after the collision.

The testimony of the train crew and Noll, who testified that the flashers were working, produced a conflict with the testimony of DeChristopher. It was for the jury, as trier of fact, to weigh these conflicts in evidence, to judge the credibility of the witnesses and to draw the ultimate conclusions from the facts. (Lee v. Grand Trunk Western R.R. Co. (1986), 143 Ill. App. 3d 500, 512, 492 N.E.2d 1364.) Here, the jury apparently concluded that the signals were flashing properly. Further, it was not defendant’s burden to prove that the flashers were working, but rather, it was for plaintiff to prove that they were not working if she sought to recover on that basis. (Gainer v. Elgin, Joliet & Eastern Ry. Co. (1968), 99 Ill. App. 2d 119, 123, 240 N.E.2d 712.) Moreover, the fact that signals, activated by an approaching train, were found to be working immediately after the collision is strong circumstantial evidence that they started working when the approaching train triggered them in the normal manner. Gainer, 99 Ill. App. 2d at 123.

Finally, plaintiff attempts to draw an analogy between Magnone v. Chicago & North Western Transportation Co. (1984), 126 Ill. App. 3d 170, 466 N.E.2d 1261, wherein the plaintiff was found to be 25% negligent, and the present case. In Magnone the evidence revealed that defendant’s railroad crossing gates could malfunction even though the flashers worked properly. On the morning of the car-train collision, witnesses had observed that the gates were operating abnormally. (126 Ill. App. 3d at 178-79.) The defendant failed to present any evidence to negate this evidence. (Magnone, 126 Ill. App. 3d at 179.) A witness testified that in response to the signals, he had stopped, and that he observed the decedent’s car crossing toward him from the opposite lane. The court there noted that the decision in the case had to be based on circumstantial evidence since no one had observed the gate at the crucial moments prior to the accident. The court found plaintiff to have been only 25% comparatively negligent. Magnone, 126 Ill. App. 3d at 180.

Plaintiff analogizes that, in the instant case, there were no gates and that no one could testify that the overhead flashing lights were operating immediately prior to the accident. In addition, the view was obstructed, and there was no competent evidence concerning decedent’s conduct prior to the accident sufficient to establish the degree of his fault. Thus, she concludes that the jury’s 95% finding of negligence is against the manifest weight of the evidence.

We fail to see the value of Magnone to plaintiff’s case. Here, unlike in Magnone, even though DeChristopher testified that the signals were not working, there was sufficient other testimony presented to rebut his version of the facts. We believe that the verdict is amply supported by the evidence, and further recitation of the facts concerning the operation of the signals, and the obstruction to the view, is unnecessary.

In summary, the jury heard testimony that the signals were flashing before and after the collision, that the train whistle was blowing and the crossing bell was ringing, that the signals at the stop had been inspected four days prior to the collision, that as the train approached there were cars stopped on both sides of the crossing, that the view of the train was unobstructed at a point 350 feet from the crossing, and that the train was traveling within the legal speed limit. Based on these facts we believe that the jury could reasonably find that the decedent was 95% responsible for the collision. Thus, we conclude that the result reached below was not against the manifest weight of the evidence.

Plaintiff’s second contention on appeal is that the jury’s finding of the degree of fault attributable to decedent was the result of improper argument of defense counsel and trial errors. Specifically, she asserts that in closing argument defendant should not have been permitted to comment on plaintiff’s failure to present testimony of the decedent. She argues that, since much of the evidence at trial had been presented by way of evidence depositions and the decedent’s discovery deposition, which had been taken by defendant, had been excluded from evidence on defendant’s motion, it was improper for defendant to comment on the missing testimony.

Defendant counters that the comments were not improper. He points out that decedent lived for 10 years after the collision and that plaintiff’s attorney had ample opportunity to depose him. Further, in his opening statement, plaintiff’s counsel told the jury how evidence could be preserved through the use of evidence depositions.

Generally, a party’s failure to call a witness who is within its control is a proper subject of comment in closing argument. (Foerster v. Illinois Bell Telephone Co. (1974), 20 Ill. App. 3d 656, 662, 315 N.E.2d 63.) However, it is reversible error for counsel to comment on inadmissible or excluded evidence. Gillson v. Gulf, Mobile & Ohio R.R. Co. (1969), 42 Ill. 2d 193, 246 N.E.2d 269.

Even if the comments here were improper, any error was corrected by the trial court. The trial judge sustained plaintiff’s objection to the comments and also admonished the jury as to the effect of remarks made by counsel which were not in evidence. Finally, no instruction was tendered or given concerning the inference to be drawn from the failure of a party to present evidence. See Illinois Pattern Jury Instructions, Civil, No. 5.01 (2d ed. 1971).

Plaintiff directs this court’s attention to Fraher v. Inocencio (1984), 121 Ill. App. 3d 12, 459 N.E.2d 11, and urges us to follow its reasoning. In Fraher, a car accident case, plaintiff was granted a motion in limine to exclude certain remarks concerning her intoxication. (121 Ill. App. 3d at 14.) Plaintiff had been drinking, but she was not intoxicated at the time of the accident. At trial, the defense attorney stated that there had been no evidence that plaintiff had not been drinking. (Fraher, 121 Ill. App. 3d 12, 459 N.E.2d 11.) The trial court sustained plaintiff’s objection to the comment. On appeal, the court held that the remark had unfairly prejudiced the plaintiff’s case and found that an additur was an appropriate cure. Fraher, 121 Ill. App. 3d at 17.

We believe the comments here differ from those in Fraher. The comments in Fraher specifically referred to plaintiff’s conduct preceding the accident. This was substantive evidence of her contribution to the accident. Here, the comments related to the absence of evidence generally. The comment included no reference to decedent’s conduct or to any other substantive evidence to show his contribution to the collision.

Plaintiff next argues that she was erroneously precluded from introducing evidence of C&NW’s subsequent installation of crossing gates. She argues that, by precluding her use of the evidence that C&NW did not install a crossing gate until nine years after the decedent’s collision, she was denied the opportunity to impeach Crubaugh’s testimony that one of the factors considered by the railroad in determining the need for crossing gates would be the occurrence of an accident.

Generally, evidence of post-occurrence changes is not admissible to prove negligence. (Schaffner v. Chicago & North Western Transportation Co. (1989), 129 Ill. 2d 1, 14, 541 N.E.2d 643; Bargman v. Economics Laboratory, Inc. (1989), 181 Ill. App. 3d 1023, 537 N.E.2d 938.) The underlying policies for the rule are that a post-occurrence change is not sufficiently probative of prior negligence and that correction of unsafe conditions should not be deterred by the possibility that such correction will constitute an admission of negligence. (Dillon v. United States Steel Corp. (1987), 159 Ill. App. 3d 186, 198, 511 N.E.2d 1349; Salvi v. Montgomery Ward & Co. (1986), 140 Ill. App. 3d 896, 489 N.E.2d 394.) However, such evidence may be admissible for impeachment purposes. Lubbers v. Norfolk & Western Ry. Co. (1986), 147 Ill. App. 3d 501, 515, 498 N.E.2d 357; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §407.1 (4th ed. 1984).

We fail to see how the fact of the subsequent gate installation would serve to impeach Crubaugh’s testimony. The fact that a gate was installed nine years after the collision would not serve to show a lack of consideration or that Crubaugh had been untruthful in his testimony. Moreover, the policies which underlie the rule against admission of such evidence far outweigh the minimal benefit, if any, that plaintiff might have gained had she been permitted to present this evidence.

Plaintiff next assigns error to the fact that defendant was permitted to introduce evidence of the absence of accidents between the years of 1959 and 1972 without first laying a proper foundation. She argues, relying on Leischner v. Deere & Co. (1984), 127 Ill. App. 3d 175, 468 N.E.2d 182, that defendant failed to show that there was a similarity in traffic volume, train traffic, obstructions to view and the condition of the signal devices during that period.

Plaintiff’s objection refers to testimony given by DePaepe concerning the record book, and to Markham’s testimony that since he had been employed by C&NW, there had been no collisions at the Lake Avenue crossing. Plaintiff did not object either to the admissibility of the record book or to Markham’s testimony. Instead, at the close of defendant’s case, plaintiff moved that the evidence be stricken.

Defendant counters that the presentation of the testimony was in response to plaintiff’s allegation that the signaling devices were not sufficient to provide adequate safety at the crossing. Therefore, defendant argues, since the issue was the safety devices themselves, it was a sufficient foundation to present testimony that the cantilevers were installed in 1959 and that the same signaling devices were present at the time of the 1972 collision.

We agree with plaintiff that there was no proper foundation for the admission of this evidence. While the ultimate issue was the adequacy of the signaling devices, resolution of that issue would necessarily be dependent upon factors such as traffic volume and obstructions to view. However, we need not reach the merits of plaintiff’s argument since we deem her objection to have been waived.

An objection to evidence must be timely made and must specify the reasons therefor. (People v. Trefonas (1956), 9 Ill. 2d 92, 136 N.E.2d 817; Hargrove v. Neuner (1985), 138 Ill. App. 3d 811, 816, 485 N.E.2d 1355.) Generally, timeliness requires that the objection to evidence be made at the time of its admission. (Johnson v. Hoover Water Well Service, Inc. (1982), 108 Ill. App. 3d 994, 1006-07, 439 N.E.2d 1284; Foster v. Englewood Hospital Association (1974), 19 Ill. App. 3d 1055, 313 N.E.2d 255.) A motion to strike after the plaintiff has rested, and before the close of the case, has been held to be untimely. (See Johnson, 108 Ill. App. 3d at 1006.) Here, by delaying her motion to strike until the evidence was admitted and defendant had rested, plaintiff’s objection was not within apt time. Foster, 19 Ill. App. 3d at 1072-73.

Plaintiff’s third and final contention on appeal is that the trial court erred in denying her motion for judgment notwithstanding the verdict on the issue of C&NW’s liability for decedent’s wrongful death. Plaintiff argues that the only evidence as to the cause of decedent’s death was the testimony of Dr. Bradley and decedent’s wife, Helen Hunter. Since this testimony was not contradicted the jury could not properly disregard it. Therefore, plaintiff argues that a verdict on liability should be entered in her favor and a new trial ordered solely on the question of damages or, in the alternative, a new trial should be ordered on the issues of liability and damages.

Defendant responds that the testimony of Dr. Bradley was contradictory and speculative and that it must therefore be rejected. His argument is supported by citation to Pumala v. Sipos (1987), 163 Ill. App. 3d 1093, 517 N.E.2d 295, Manion v. Brant Oil Co. (1967), 85 Ill. App. 2d 129, 229 N.E.2d 171, and similar cases.

In considering whether a judgment should be granted notwithstanding the verdict, we follow the supreme court’s holding in Pedrick v. Peoria & Eastern Ry. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504. Judgments should be entered only where “all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” 37 Ill. 2d at 510.

Plaintiff presented the testimony of Dr. Bradley by an evidence deposition. Dr. Bradley treated the decedent from 1973 until the decedent’s death in February 1982. Based upon decedent’s medical history and his condition in October 1973, Dr. Bradley stated that, to a reasonable degree of medical certainty, decedent was then permanently disabled and that his disability was proximately caused by the injuries sustained in the collision. In his opinion, decedent’s death was causally related to the car-train collision.

On cross-examination, Dr. Bradley stated that he had not begun to treat decedent until more than one year after the collision had occurred. Dr. Bradley also testified that decedent’s maladies could have been the result of causes other than the injuries sustained in the collision, such as his 10-year, two-pack-per-day smoking habit, prior illnesses, and a family history of poor health. However, on redirect examination, Dr. Bradley maintained that, based on reasonable medical certainty, decedent’s death was causally related to the collision.

There is no requirement that the testimony of a medical expert be based on absolute certainty; only a reasonable degree of medical and scientific certainty is necessary. (Frankenthal v. Grand Trunk Western R.R. Co. (1983), 120 Ill. App. 3d 409, 419, 458 N.E.2d 530.) However, an expert is not permitted to guess or to speculate. Frankenthal, 120 Ill. App. 3d at 419.

We do not agree with defendant that because another explanation for decedent’s death was possible, Dr. Bradley’s testimony was thereby rendered contradictory and speculative. Dr. Bradley steadfastly testified that, to a medical certainty, the auto-train collision was the cause of decedent’s death. However, a jury is not bound to accept the opinion of an expert on an ultimate issue. (Harris v. Bethlehem Steel Corp. (1984), 124 Ill. App. 3d 449, 464 N.E.2d 634; Batteast v. Wyeth Laboratories, Inc. (1988), 172 Ill. App. 3d 114, 134, 526 N.E.2d 428, appeal allowed (1988), 123 Ill. 2d 556, 535 N.E.2d 398.) Here, in addition to the testimony that decedent’s death was ultimately caused by the collision, the jury also heard that other factors could have caused his death. We believe that the jury heard enough evidence upon which it could securely base its decision of non-liability, and no opposite conclusion is clearly evident.

For the foregoing reasons we affirm the judgment of the circuit court.

Affirmed.

CERDA, P.J., and WHITE, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    WILLIAMSBURG VILLAGE OWNERS’ ASSOCIATION, INC., Plaintiff-Appellant, v. LAUDER ASSOCIATES et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—89—1733
    Opinion filed June 20, 1990.

      Vincent A. Lavieri and Mary E. Haglund, both of Kovitz, Shifrin & Waitzman, of Arlington Heights, for appellant.
    Christopher Jacobs and James A. Blazina, both of James A. Blazina, Chartered, of Chicago, for appellees.
   JUSTICE FREEMAN

delivered the opinion of the court:

On December 2, 1989, plaintiff, Williamsburg Village Owners’ Association, Inc., brought a forcible entry and detainer action against defendants, Lauder Associates, seeking possession of certain commercial condominium property and recovery of $8,385.72 of unpaid assessments for common element expenses from January 1, 1986, through October 31, 1987.

Following a trial in the circuit court of Cook County, the court entered an ex parte default judgment against defendants. The court awarded damages of $7,869, attorney fees of $585, and possession of the office condominium to plaintiff. Pursuant to the trial court’s order of possession, plaintiff collected $55,909.02 under an assignment of rents.

Defendants appealed from that judgment, and this court reversed and remanded the case for further proceedings. (Williamsburg Village Owners’ Association, Inc. v. Lauder Associates (1989), 181 Ill. App. 3d 931, 537 N.E.2d 857.) On remand, defendants filed a motion to vacate judgment, declare an assignment of rents void ab initio and return of collected funds. The trial court granted defendants’ motion and, on June 14, 1989, ordered plaintiff to return the funds it had collected by June 21.

On June 21, the date which had been set for trial, plaintiff advised the court that it would be filing a substitution of attorneys. Also, on that date, defendants made an oral motion to hold plaintiff in contempt of court for failing to comply with the turnover order of June 14. The court stated:

“He’s making a request to substitute attorneys, you are making a request for sanctions and its all oral. I’m going to hold my order and continue this case for hearing on all of the motions. And that they be reduced to writing for July 3rd 1989 at 10:30 a.m. That’s it.”

At the July 3 hearing defendants presented their motion to hold plaintiff in contempt. Counsel for plaintiff first contended that he had not seen a copy of the motion, next argued that the June 14 turnover order had been continued from the June 21 hearing to July 3, then stated that he did not know why there had been no compliance. Plaintiff requested an opportunity to obtain a copy of the June 21 transcript of the proceedings in order to show the court that the order had been continued; however, the request was denied. The court stated that it had not continued the turnover order, entered an order finding plaintiff in contempt, and assessed a $500 fine for every day of continued noncompliance.

On July 6, the parties again appeared in court. Upon being advised that plaintiff had not turned over the funds, the court increased the contempt fine to $1,000 per day. The fine was increased, a third time, to $1,500 on July 13, 1989.

On July 20, defendants filed a garnishment on plaintiff’s bank account. On or about August 10, answers to interrogatories were filed and defendants levied on plaintiff’s bank account. Plaintiff urges four points on appeal: (1) the trial court abused its discretion in holding it in contempt; (2) the trial court lacked jurisdiction to increase the contempt fine; (3) the trial court’s turnover order was an abuse of discretion; and (4) the garnishment should have been quashed. We affirm.

Plaintiff first contends that the trial court abused its discretion in holding it in contempt because it was not given prior notice of defendants’ contempt motion and the opportunity to be heard. At oral argument, plaintiff complained that the notice had not been timely given because it had not been received within two court days prior to the hearing as required by Circuit Court Rule 2.1(d) (Cook County Circuit Court Rule 2.1(d)). Plaintiff asserts that when it raised the issue of lack of notice, the trial judge had an obligation to inquire into whether adequate notice had been given.

Defendants claim that the notice of motion and proof of service was filed on July 3, 1989. Additionally, defendants assert that plaintiff’s counsel was personally served with a copy of the motion on June 30,1989.

Included in defendants’ brief, as exhibit 1, is a photocopy of a notice of motion and proof of service by delivery. In the section provided for proof of service, the typewritten date of service is Monday, July 3, 1989. That date is crossed out, and Friday, June 30, 1989, is handwritten above it. The defense attorney’s initials appear beside the handwritten date, and his signature appears in the appropriate space provided on the form. The proof is stamped, filed July 3, 1989. In addition, included in the record is an original of a letter, dated June 30, 1989, sent by messenger, and addressed to Judge Bryant. The letter states that a copy of the motion is enclosed and indicates that a carbon copy was sent to plaintiff’s counsel.

The evidence in the record supports defendants’ claim that notice of the motion, albeit untimely, was given. Nevertheless, even if notice was not proper, we believe that plaintiff has waived the issue.

Even though an order of court may be void ab initio for lack of due process, such as notice, a defect in notice can be waived. (Walter v. City of West Chicago (1976), 39 Ill. App. 3d 297, 300, 349 N.E.2d 437.) Preservation of a question for review requires an appropriate objection in the court below (Hargrove v. Gerill Corp. (1984), 124 Ill. App. 3d 924, 929, 464 N.E.2d 1226), and failure to object constitutes a waiver. Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 229, 499 N.E.2d 1381; People ex rel. Wilcox v. Equity Funding Life Insurance Co. (1975), 61 Ill. 2d 303, 313, 335 N.E.2d 448.

We have reviewed the July 3 proceedings wherein defendants’ motion for contempt was presented. The following colloquy occurred:

“MR. JACOBS [defense counsel]: Your Honor, we have two motions. One motion to hold — hold the Plaintiff in contempt of court. Here is the original.
MR. LAVIERI [plaintiff’s counsel]: I've never seen a copy of this motion.
THE COURT: You did get a copy of the order?
MR. LAVIERI: Yes, I did and-.
THE COURT: Will you give me a reason why you have not turned it over?
MR. LAVIERI: You continued everything until — .
THE COURT: No, I didn’t continue the order that was on June 21st.
MR. LAVIERI: Yes, you did.
* * *
THE COURT: I didn’t continue that one. Why have you not turned the money over? That is the question.
MR. LAVIERI: I understand that. I will have to check with my clients why they haven’t turned the money over.
THE COURT: Prepare an order finding the Association plaintiff in contempt as of this moment ***.”

If, by stating that it had not seen the motion, plaintiff meant that it had not received notice, such an objection was nebulous and insufficient. In order to put the court on notice of any defect it was incumbent upon plaintiff to state the objection with sufficient clarity, renewing it until such time as the court acknowledged and responded to it.

In Hargrove, the plaintiffs’ counsel observed that there had been improper notice, but indicated a willingness to proceed with the hearing that day. The trial court’s order contained the specific finding that plaintiffs’ attorney agreed to a hearing instanter despite the 24-hour notice. On review, the court held that the plaintiffs had waived the issue of untimely notice by their failure to raise sufficient objection before the trial court to the defective notice. Hargrove, 124 Ill. App. 3d at 929.

Similarly, in Carlsen v. Village of Oakwood Hills (1987), 164 Ill. App. 3d 396, 517 N.E.2d 1107, the plaintiff assigned error to the trial court’s hearing of defendants’ motion since the plaintiff had not been served with the motion until the morning of trial. Initially, the plaintiff’s counsel objected to the timeliness of the filing of the motion on the basis that he had just received it that morning. The trial court granted a recess so that the court and plaintiff could review the motion and so that plaintiff could prepare a response. Plaintiff did not renew his objection for lack of notice when court resumed. On the contrary, plaintiff took part in a spirited argument which included citation of authority. The court held, since the plaintiff demonstrated a willingness to proceed on the motion, he should not be heard to complain.

Here, there was never any objection to the sufficiency of the notice. Plaintiff, after its initial argument of having not seen the motion, relied solely on its mistaken belief that the order had been continued and a lack of knowledge concerning the reasons for the noncompliance. Further, absent some assertion from plaintiff that notice was defective, it was not the duty of the trial court to inquire.

Plaintiff here also contends that the court entered the contempt finding without first conducting an evidentiary hearing. The record reveals that plaintiff neither requested a continuance in order to prepare a response to the motion nor did it offer any evidence in opposition to the motion. At oral argument plaintiff stated that it did not request a hearing.

Having proceeded to defend against the contempt citation by relying on its mistaken belief concerning the continuance, plaintiff cannot now be heard to complain about the insufficiency of the hearing. Lemke v. Kenilworth Insurance Co. (1985), 109 Ill. 2d 350, 354-55, 487 N.E.2d 943.

Plaintiff next contends that the trial court’s orders, entered on July 6 and July 13, which increased the amount of the contempt sanctions, were erroneous. It maintains that after the notice of appeal was filed, the trial court lacked authority to enter any additional orders. Defendants have not responded to this argument.

On July 3, plaintiff filed its notice of appeal of the court’s July 3 contempt order. At the July 6 hearing, plaintiff advised the court that it had filed a notice of appeal and that it would be bringing a motion before the court, “within a week or so to ask that [the court] set bond and also to stay enforcement of the judgment. We have not done that as of yet.” The trial court stated that until the motion to stay was filed, the judgment would not be stayed, and accordingly, it increased the contempt fine from $500 per day to $1,000 per day. The contempt fine was again increased on July 13 to $1,500 per day.

On July 6, 1989, plaintiff filed a motion to stay enforcement of the court’s orders pending appeal and to set bond. (107 Ill. 2d R. 305.) On July 27, this court granted plaintiff’s motion to stay all proceedings in the trial court pending the appeal and set bond. On August 15, 1989, this court clarified its July 27 order, stating that the order, which stayed all lower court proceedings, related only to the lower court’s orders of July 3, July 6, and July 13.

Plaintiff correctly states that upon filing a notice of appeal, the circuit court is divested of jurisdiction to enter any order involving a matter of substance, and the jurisdiction of the appellate court attaches instanter. (City of Chicago v. Myers (1967), 37 Ill. 2d 470, 472, 227 N.E.2d 760; Rickard v. Pozdal (1975), 31 Ill. App. 3d 542, 545, 334 N.E.2d 288.) While the trial court retains jurisdiction to determine matters arising independent of, and collateral to, the judgment, it is restrained from entering any order which would modify the judgment or its scope. (Horzely v. Horzely (1979), 71 Ill. App. 3d 542, 545, 390 N.E.2d 28.) Accordingly, any actions taken by a court when it has no jurisdiction are null and void. Bank of Viola v. Nestrick (1981), 94 Ill. App. 3d 511, 514, 418 N.E.2d 515.

However, notice of an appeal does not in itself operate as a stay of enforcement of the court’s orders. Enforcement of a judgment may be stayed pursuant to either Supreme Court Rule 305(a) or (b). (107 Ill. 2d Rules 305(a), (b).) Under Rule 305(a), an appeal operates as a supersedeas, interrupting execution of a judgment, only if the appeal is filed within 30 days after the judgment becomes final and only if a bond is presented, filed and approved. (Nemanich v. Long Grove Country Club Estates, Inc. (1970), 119 Ill. App. 2d 169, 255 N.E.2d 466.) Rule 305(b) permits either the trial court or the appellate court, upon notice and motion, and an opportunity for opposing parties to be heard, to stay enforcement of judgments for money only not stayed by compliance with paragraph (a) of the rule. (107 Ill. 2d R. 305(b).) It is the supersedeas which operates against the enforcement of a judgment, and its object and purpose are to stay future proceedings pending a determination on appeal. Gregory v. First National Bank & Trust Co. (1980), 84 Ill. App. 3d 957, 960, 406 N.E.2d 583.

The 1971 amendments to Rule 305 abandoned the use of the term “supersedeas,” and continued to distinguish between judgments for money only, the enforcement of which is stayed upon the filing of an approved bond, and other judgments and orders, the force and effect of which may be stayed by order of the court. (Ill. Ann. Stat., ch. 110A, par. 305, Committee Comments, at 206 (Smith-Hurd (1985).) Here, plaintiff, pursuant to Rule 305(b), motioned this court for a stay of enforcement. The stay was granted on July 27. While the trial court was divested of authority to enter any new orders or to modify the existing ones, until this court granted plaintiff’s stay, the trial court was not precluded from exercising its authority to execute its contempt order by the imposition of the July 6 and 13 fines. See Graff v. Graff (1979), 71 Ill. App. 3d 496, 389 N.E.2d 1206; Long v. Duggan-Karasik Construction Co. (1974), 25 Ill. App. 3d 236, 323 N.E.2d 56; Shapiro v. Shapiro (1969), 113 Ill. App. 2d 374, 252 N.E.2d 93; but cf. Horzely, 71 Ill. App. 3d 542, 390 N.E.2d 28 (trial court had no authority to enforce child support decree after notice of appeal and supersedeas bond was filed).

Plaintiff’s third contention is that the trial court’s June 14 order, requiring turnover of the funds to defendants, was an abuse of discretion. It argues that the turnover order was the result of the court’s mistaken belief that it was required to order restitution, when in fact the decision was discretionary. Defendants naturally argue to the contrary and further assert that the June 14 order, not having been included in plaintiff’s notice of appeal, is waived.

We first address defendants’ waiver argument. In Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952, cert. denied (1987), 483 U.S. 1007, 97 L. Ed. 2d 738, 107 S. Ct. 3232, the defense attorney was found in contempt and fined. On appeal, the plaintiff argued that the court’s review should be limited to whether the trial court was correct in finding the attorney to be in violation of the court’s order and not the propriety of the trial court’s order itself. The appellate court, relying on People ex rel. Scott v. Silver stein (1981), 87 Ill. 2d 167, 429 N.E.2d 483, stated that the correctness of the trial court’s original order, which the attorney had been found to have violated, was properly an issue before the court. A contempt judgment including a fine or imprisonment “ ‘is a final and appealable judgment and presents to the court for review the propriety of the order claimed to have been violated.’ ” Petrillo, 148 Ill. App. 3d at 586, quoting Scott, 87 Ill. 2d at 174.

We conclude that the correctness of the trial court’s turnover order, which plaintiff was found to have violated, is properly an issue before this court.

Plaintiff supports its argument that the turnover was discretionary by citation to Calumet & Chicago Canal & Dock Co. v. Davis (1920), 218 Ill. App. 176. We note that Calumet & Chicago Canal was reversed in Thompson v. Davis (1921), 297 Ill. 1, 130 N.E. 455. In Calumet a mortgagee had purchased property at a foreclosure sale and later sold it. On appeal, the reviewing court reversed the foreclosure; however, it denied restitution to the mortgagor. In denying restitution, the court reasoned, relying largely on decisional law from foreign jurisdictions, that restitution upon reversal was not a mere right, but was discretionary. In reversing the appellate court, our supreme court, in Thompson, stated that once the decree of foreclosure was reversed and set aside, the parties became entitled to be restored to their former rights as nearly as possible. “[I]t was the duty of the court to restore the parties to their rights by requiring the dock company to make restitution of the advantage gained by the reversed decree.” 297 Ill. at 15.

In Illinois, the effect of a reversal is to abrogate the decree and leave the cause as it stood prior to the entry of the decree (First National Bank v. Road District No. 8 (1945), 389 Ill. 156, 161-62, 58 N.E.2d 884), restoring the parties to their original positions. (Loy v. Booth (1974), 16 Ill. App. 3d 1077, 307 N.E.2d 414.) Some courts in other jurisdictions hold that restitution is not a matter of right, but is ex gratia, resting in the exercise of the court’s sound discretion, and that the court will not order it where the justice of the case does not call for it or where retention is not shown to be contrary to equity and good conscience. (See 5 Am. Jur. 2d Appeal & Error §998 (1962) (and cases cited therein).) However, in Illinois it is well settled that upon the reversal of a judgment, under which one of the parties has received benefits, he is under an obligation to make restitution. Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 382, 483 N.E.2d 1271; Willett Co. v. Carpentier (1954), 4 Ill. 2d 407, 123 N.E.2d 308; Barnard v. Michael (1945), 392 Ill. 130, 63 N.E.2d 858; Ure v. Ure (1906), 223 Ill. 454, 79 N.E. 153; Jackson v. Polar-Mohr (1983), 115 Ill. App. 3d 571, 450 N.E.2d 1263.

Further, the trial court’s right and duty to enforce restitution are not dependent on any direct order for restitution by the appellate court. (Rhodes v. Sigler (1976), 44 Ill. App. 3d 375, 378, 357 N.E.2d 846.) Restitution should be permitted even if it requires some latitude because of changed conditions pending review. Liberty Mutual Insurance Co. v. Zambole (1986), 141 Ill. App. 3d 803, 491 N.E.2d 132.

Plaintiff listed a number of factors which it advised the trial court to consider in deciding whether to order restitution. Specifically, plaintiff advised the court that: (1) this case was one of three forcible entry and detainer cases which involved property owned by defendants’ partners and that defendants had defaulted on the payment of assessments on all three; (2) in another case, which was pending in the circuit court, the partners owed plaintiff in excess of $75,000; (3) in one instance where defendants’ partners had settled a case for assessments, they immediately defaulted; and (4) defendants owed in excess of $100,000 to plaintiff for unpaid assessments, late charges, interest and attorney fees. Plaintiff argues that, taking into account all of these circumstances, it was an abuse of discretion for the trial court to grant restitution.

Plaintiff then directs this court to consider Getzoff v. Paris (1979), 77 Ill. App. 3d 401, 396 N.E.2d 260. In Getzoff, the defendants contended that, upon reversal, the plaintiffs should have made restitution to the defendants. The appellate court, in its supplemental opinion, stated that it did not agree with the defendants that it was necessary for the court to order restitution by plaintiffs; the matter was left open to the trial court to assume jurisdiction over any further action in the matter. Further, the court stated that it was the purport of the court’s opinion to restore the parties to the positions which they held prior to the judgment by the trial court. The court then, citing to Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217, stated that the trial court was free to modify or alter any interlocutory order, if erroneous, and enter any order or judgment consistent with the evidence as might have been warranted in its final determination of the cause, including a restitution order.

Plaintiff seems to rely on Getzoff to support the proposition that the order of restitution was discretionary, and that the court could have exercised another option. Plaintiff misunderstands Getzoff. First, the court in Getzoff, consistent with the majority of case law in Illinois, expressly stated that upon reversal it intended that the parties be restored to their predisposition status. Next, the court, in referring to the trial court’s final determination, stated that the court could order restitution if warranted. The court was not, at that point, referring to the restitution which is required upon reversal, but rather to restitution which might be warranted as the ultimate result of the court’s final disposition of the case. Acceptance of plaintiff’s interpretation of Getzoff would create a contradiction in the court’s opinion.

Even were we to conclude, and we do not, that the proper standard in Illinois, in deciding whether to grant restitution upon reversal, is abuse of discretion, we would find none here. The mere existence of different options does not render the chosen option erroneous. Here, plaintiff was required to make restitution and it was the duty of the trial court to order it. Guided by the decisional law of the cases cited herein, as well as principles of fairness, we are unable to conclude that the court’s order of restitution was improper.

Plaintiff’s final contention is that the garnishment of its bank account was without authority and that this court should have granted its motion to quash. Defendants respond that an appeal is not the proper course for review of this court’s denial of the motion. Rather, they maintain that the plaintiff should have motioned this court for reconsideration of the motion instead. Defendants ask that the issue be stricken. We decline.

We agree with plaintiff that we are not precluded from reviewing our earlier denial of plaintiff’s motion. In People v. Nichols (1986), 143 Ill. App. 3d 673, 493 N.E.2d 677, a case upon which plaintiff relies, the State moved the appellate court to dismiss the defendant’s appeal. The court denied the motion but, on appeal, reconsidered its decision. The State urged that the court’s denial of the motion to dismiss must be considered res judicata on the matter. The court stated that rulings on such motions made in the reviewing court were not unassailable and were open to reconsideration upon full consideration of the motions, briefs and record.

Plaintiff first argues that, since this court had stayed enforcement of the trial court’s orders pending appeal, this court should have granted the motion to quash garnishment. According to plaintiff’s brief, on July 17, it filed a motion to stay enforcement of the trial court’s orders and set bond. On July 20, during the pendency of that motion, defendants commenced garnishment proceedings. On August 7 plaintiff filed an emergency motion to quash garnishment on the grounds that the garnishment proceedings were in violation of this court’s July 27 order. On August 10 defendants levied on plaintiff’s account and received in excess of $56,000. On August 15 this court denied plaintiff’s motion to quash garnishment.

Defendants’ response, which is wholly supported by the record, is that in this court’s August 15 order, we clarified that the July 27 stay order related only to the orders of July 3, 6, and 13. Furthermore, the record discloses neither the presentment and posting of a bond, nor any order staying the enforcement of the June 14 restitution order. (107 Ill. 2d R. 305.) In the absence of either, defendants were free to enforce the June 14 order at any time.

We also note the garnishment was a proper enforcement remedy. Similar to the present case is In re Marriage of Hilkovitch (1984), 124 Ill. App. 3d 401, 464 N.E.2d 795 (superseded by statute, as stated in In re Marriage of Pick (1988), 167 Ill. App. 3d 294, 521 N.E.2d 121). In Hilkovitch, the respondent was held in contempt for his failure to comply with that portion of the court’s dissolution judgment regarding maintenance and child support. The respondent filed a notice of appeal of the dissolution judgment, and the appellate court granted a stay of enforcement of the contempt citation and jail sentence. Meanwhile, the petitioner filed a motion for the appointment of a receiver and/or sequestrator to take possession of the respondent’s business assets on the ground that he had not complied with the court’s order concerning support and maintenance. (Hilkovitch, 124 Ill. App. 3d at 410.) The trial court entered the order appointing the sequestrator and the respondent appealed. 124 Ill. App. 3d 401, 464 N.E.2d 795.

On appeal, the respondent argued that the court’s order of sequestration was erroneous because the court lacked jurisdiction. The respondent’s argument was premised on the fact that he had filed an appeal of the dissolution judgment and had been granted a stay of enforcement of the contempt citation. The reviewing court noted that the respondent had not posted a bond or requested a stay of that portion of the judgment concerning support and maintenance. The stay which had been granted pertained only to the penalty for contempt, which did not affect the independent remedy of sequestration. (124 Ill. App. 3d at 425.) Thus, the court had jurisdiction to enforce the order pertaining to the payment of maintenance and support. 124 Ill. App. 3d at 425.

Plaintiff next argues that the turnover order was interlocutory in nature. It maintains, relying on Peter Fischer Import Motors, Inc. v. Buckley (1984), 121 Ill. App. 3d 906, 460 N.E.2d 346, that since the judgment left the action “pending and undecided,” it was not final. Therefore, there was no statutory authority to support the garnishment.

The effect of this court’s reversal and remand was to extinguish the prior erroneous judgment and revest the trial court with jurisdiction to determine the rights of the parties. The order of restitution was the concluding event in the restoration of the parties to their status before the rendering of the original judgment. Upon reversal, defendants were entitled, as a matter of right, to restitution.

Even though the reversal here was not conclusive of the rights of the parties, since we have determined that restitution upon reversal is an absolute right, we hold that it was required to be made without consideration of what the further result of the litigation might be. “[Otherwise the court might be required to determine, on motion or by an independent action, the final judgment to be made in the litigation.” (See 5 Am. Jur. 2d Appeal & Error §998 (1962).) We conclude that it was proper for the court to order and compel such restitution and for defendants to employ any independent remedies to enforce the order.

A final issue before this court is defendants’ section 2 — 611 motion for attorneys fees and costs which was taken with the case. Defendants assert that because of plaintiff’s improper inclusion of issues and arguments in its brief, they were required to expend substantial amounts of time and effort in responding. Therefore, defendants urge that, pursuant to section 2—611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611), this court assess attorney fees and costs against plaintiff.

We do not agree that plaintiff has included improper arguments in its brief. Further, while we have determined that plaintiff cannot prevail on the total of its arguments, we do not find the arguments presented to have been so superficial or made without reasonable cause, as to warrant sanctions. Moreover, we have recently held that section 2 — 611 confers no authority upon this court to impose the sanctions which defendants request. See Harris v. Harris (1990), 196 Ill. App. 3d 815.

For the foregoing reasons we affirm the judgment of the circuit court.

Affirmed.

RIZZI and WHITE, JJ., concur.

       With the repeal of section 392 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 392), and the enactment of section 2—1402 (Ill. Rev. Stat. 1985, ch. 110, par. 2—1402), the use of sequestration as an enforcement remedy in dissolution cases has been diminished. In re Marriage of Pick (1988), 167 Ill. App. 3d 294.


author: JUSTICE LINN

text:
    OSCAR MEDLEY et al., Plaintiffs, v. LARRY L. STRONG et al., Defendants-Appellees (Carolyn Medley, Plaintiff-Appellant).
    First District (4th Division)
    No. 1—88—1772
    Opinion filed June 21, 1990.

      James H. Canel, Ltd., of Chicago (James H. Canel, of counsel), for appellant.
    Cassiday, Schade & Gloor, of Chicago (John N. Seibel, Paul W. Carroll, and Judith A. Schieber, of counsel), for appellees Paul Carryon and Williams Clinic, Ltd.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Thomas F. Gridgman, Michael J. Wagner, and Corinne Seither, of counsel), for appellee Hyde Park Hospital.
    Peterson, Ross, Schloerb & Seidel, of Chicago (William K. McVisk and Kathleen A. Brosnan, of counsel), for appellee Mercy Hospital and Medical Center.
    Wildman, Harrold, Allen & Dixon, of Chicago (Edward Butt and Mary Periolat, of counsel), for appellees Larry Strong and Urology Associates.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Carolyn Medley, seeks damages against defendant doctors and hospitals for their alleged negligence in treating her lover and companion of 10 years, Oscar Medley. In the course of his medical treatment for a condition of the penis, complications set in that resulted in its amputation. She seeks to recover damages for loss of consortium.

The trial court granted defendants’ motion to dismiss her claim on the grounds that she lacked legal capacity, under section 2—219(a)(2) of the Code of Civil Procedure, to maintain the action. (Ill. Rev. Stat. 1987, ch. 110, par. 2—619(a)(2).) On appeal, she argues that under general, common law principles of tort liability, and in light of the increasing numbers of persons who cohabit without marriage, she should be allowed to maintain her action despite her lack of marital status.

We affirm the trial court.

Background

Oscar and Carolyn Medley had been living together and representing themselves as married for 10 years before Oscar’s injuries. In August 1986 Oscar sought treatment for priapism, which is defined as an abnormal, painful, and continued erection of the penis due to disease. He was referred to defendant Larry Strong, M.D., an employee of defendant Urology Associates. He was admitted to defendant Hyde Park Community Hospital, where he stayed until September 5, 1986. According to the complaint, Dr. Strong failed to perform surgery to reduce the priapism and instead attempted manual compression of the penis and then attempted further compression by using a blood pressure cuff.

During his stay in the hospital, Oscar Medley developed nonviable tissue and ulceration of the penis. According to the complaint, Dr. Strong did not intervene and treat the condition.

Defendant Evelyn Currie, M.D., a hematologist, consulted on the case. She allegedly failed to appreciate the significance of laboratory data and failed to give necessary information to nursing and medical personnel who were treating Medley. Plaintiff alleges that she recommended or ordered medical approaches that were based on a “misassessment” of Medley’s medical, clinical, and laboratory history.

Plaintiff further alleges that the nurses responsible for Medley’s treatment were negligent in using a blood pressure cuff on his penis, which contributed to and aggravated the injury. In addition, the nurses allegedly failed to notify the treating physicians of the developing infection in Medley’s penis. Although Medley’s white blood cell count had become elevated, he was discharged from the hospital without further laboratory testing and without proper medication and instruction for follow-up care.

Plaintiff further alleges that on September 20, 1986, Medley was admitted to defendant Mercy Hospital and Medical Center, under the care of Dr. Paul Carryon, who was employed by defendant Williams Clinic. Medley suffered from respiratory distress and “necrotic penis.” He was discharged on September 30, 1986. According to the complaint, during his stay at this hospital he was not given appropriate treatment and testing, and his doctor failed to offer any treatment when Medley developed a second opening on the underside of the penis, on September 26.

Dr. Carryon called upon Dr. Currie, the same hematologist who previously had examined Medley. According to plaintiff, she again failed to appreciate the significance of the data and recommended inappropriate treatment.

The complaint alleges negligence on the part of all named defendants, as a result of which Medley underwent a penectomy, or surgical amputation, and additional surgeries and treatments. His claimed damages and losses are not in issue in this appeal, however; it is Carolyn Medley’s claim for loss of consortium that must be considered.

Opinion

Carolyn Medley's claim is for an injury that is recognized in Illinois and other States as arising out of the marriage relation. In fact, the case on which she relies, Dini v. Naiditch (1960), 20 Ill. 2d 406, 170 N.E.2d 881, recognized that “the husband and wife have equal rights in the marriage relation which should receive equal protection of the law.” (Emphasis added.) (20 Ill. 2d at 424, 170 N.E.2d at 889-90.) The court stated that “[cjonsortium *** includes, in addition to material services, elements of companionship, felicity and sexual intercourse, all welded into a conceptualistic unity.” 20 Ill. 2d at 427, 170 N.E.2d at 891.

We agree with Carolyn that but for the lack of a marriage license, she would state a viable cause of action and could recover whatever amount of damages she could prove were proximately caused by defendants’ negligence.

We do not agree, however, that we can expand common law tort principles to allow her a cause of action that is defined in marital terms. Since 1905, Illinois has not recognized common law marriage (see Ill. Rev. Stat. 1987, ch. 40, par. 214), and the Illinois Supreme Court has expressly reaffirmed the State’s strong, continuing interest in the institution of marriage. (Hewitt v. Hewitt (1979), 77 Ill. 2d 49, 394 N.E.2d 1204.) The statutory rights of married people include interests in marital property, support obligations, inheritance rights, and the entitlement to sue for wrongful death of the spouse. Unmarried cohabitants do not have these protections, either by statute or by common law, since de facto marriages are not legally recognized.

In Hewitt v. Hewitt, the Illinois Supreme Court held, in the clearest possible terms, that unmarried cohabitants (even those in long-term, stable relationships) are entitled to no legal protection for claims that depend on the cohabitation itself. The court held that the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 101 et seq.) embodied the legislative preference for marriage by refusing to accord legal status to claims for marriage-like relationships that would, in effect, reactivate common law marriages.

The result in Hewitt was particularly harsh in light of its facts. Mrs. Hewitt had devoted 15 years of her life to establishing a home and raising the parties’ three children. She had borrowed money from her parents and otherwise facilitated her “husband’s” ability to develop a lucrative practice of pedodontia. Even the parents of the parties believed that the two were married. Since they had not complied with the marriage laws of the State, however, the court held that Mrs. Hewitt could not claim any property rights based on the cohabitational relationship itself. Nor could she enforce an express oral contract. In a discussion of contract principles, moreover, the court noted that agreements based on sexual services are void for want of legal consideration and that Illinois courts would not enforce what in effect are private contracts for marriage-like relationships.

Carolyn attempts to distinguish Hewitt as involving claims between the cohabiting parties only, as distinguished from tort claims against third parties. She states that traditional principles of tort liability are satisfied because she is a foreseeable plaintiff to whom the defendants owed a duty of care.

We believe that this approach ignores the legislature’s preemptive regulation of rights and obligations integral to marriage and marriage-like relationships. We also find unpersuasive Carolyn’s attempt to narrow the consortium claim — and thus the issue under review — to the point where we look only at the sexual injury as a distinct injury to Carolyn’s relationship with Oscar and pretend that the public policy concerns regarding the integrity of marriage do not apply. Her argument that the times have changed and the laws have not kept up with the changes may be well taken, but they are not ultimately relevant in this case. The object here is not to reexamine Illinois public policy on marriage as opposed to other relationships or to slay the draconic notion of women as chattel. That already has been done, in Hewitt and in Dini v. Naiditch, respectively.

Certainly, statistical data may reveal that many people in the United States do, have, or will cohabit without marriage. In Illinois, tort law gives them whatever protections and rights that are commonly enjoyed by all other people, except for torts that are specifically designed to compensate for injuries to the relationship between spouses.

Moreover, loss of consortium damages belong to the restricted group of claims that arise from injuries to other persons, rather than from direct, physical injury to the claimants themselves. We do not mean to denigrate Carolyn’s own, separate suffering or to imply that her injury is insignificant. Claims involving loss of consortium or loss of society should not be indiscriminately expanded, however; otherwise, all who claim a sexual relationship, friendship, or some other close relationship with the injured or deceased party could recover damages for their losses. See, e.g., Childers v. Shannon (1982), 183 N.J. Super. 591, 595, 444 A.2d 1141, 1142-43 (“[I]t is not the function of [the] court to sift through the myriad relationships of a party in a negligence action to determine which of those near and dear have suffered an injury”); see Dralle v. Ruder (1988), 124 Ill. 2d 61, 529 N.E.2d 209 (giving policy reasons for limiting consortium claims in parent/child context).

The only apparent limit on Carolyn’s theory is that the claimant has regular sexual relations with the person whose sexual abilities are impaired through the negligence of a third party. If we recognize such claims, outside the context of marriage, we would be creating a situation in which multiple partners of an injured person may sue. We hesitate to create new classes of claimants, under the rubric of “foreseeable plaintiffs,” as Carolyn suggests. Whether all potential plaintiffs in such cases would be “foreseeable” or not is open to question; legally married spouses, in contrast, are foreseeable plaintiffs by definition.

Even if we were to hold that Carolyn is a foreseeable plaintiff under the facts of this case, we question the soundness of permitting an action to be based on a tort duty that has been found only in the context of interspousal relationships. The more a relationship resembles a long-term, stable marriage, the more it looks like common law marriage, which is legally invalid in Illinois. The more a relationship is viewed as purely sexual, the more plaintiffs may emerge from the bedrooms into the courts. We doubt, in fact, that common law principles support any relief based on loss of sexual services, given historical prohibitions against these relations outside of marriage. Current codifications of such laws even criminalize some types of sexual activities. Therefore, whether we focus narrowly on sexual injury or more broadly on loss of companionship and material services, we find no support for creating a tort claim based on lost sexual services.

Other courts have uniformly barred nonmarried partners from bringing loss of consortium claims. The reasoning of one California court, that such claims are proper if the cohabital relationships are “stable and significant” (Butcher v. Superior Court (1983), 139 Cal. App. 3d 58, 188 Cal. Rptr. 503), has been rejected by more recent California decisions. (E.g., Elden v. Sheldon (1988), 46 Cal. 3d 267, 250 Cal. Rptr. 254, 758 P.2d 582; Gonzales v. Hudson (1988), 200 Cal. App. 3d 45, 245 Cal. Rptr. 753, transferred with directions (1988), 252 Cal. Rptr. 816, 763 P.2d 479.) We are aware of no other jurisdictions that allow such claims, and many that reject them. E.g., Briggs v. Butterfield (1984), 104 A.D.2d 626, 479 N.Y.S.2d 758; Haas v. Lewis (1982), 8 Ohio App. 3d 136, 456 N.E.2d 512; see Annot., Action For Loss of Consortium Based on Nonmarital Cohabitation, 40 A.L.R.4th 553 (1985).

Carolyn’s argument that many people live together or have relations outside of marriage does not, therefore, persuade us that this fact alone justifies the recognition of such a tort. If we were to adopt the “evolving social reality” theory advanced here, we would be usurping the legislative function to an unprecedented degree. Judicial modification of judge-made law is appropriate where the purpose of the modification is to correct mistakes or entomb anachronisms. For example, in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 13, 374 N.E.2d 437, the Illinois Supreme Court recognized that America’s historic, blanket ban on contribution among tortfeasors was based on an erroneous expansion of the original English rule that no intentional tortfeasor should be allowed to recover against others for the consequences of his deliberate acts. (See also Gerill Corp. v. Jack L. Hargrove Builders, Inc. (1989), 128 Ill. 2d 179, 203, 538 N.E.2d 530.) Another example is Dini v. Naiditch (1960), 20 Ill. 2d 406, 170 N.E.2d 881. There the supreme court condemned the historical view of women as chattel, which let their male “owners” recover compensation for injuries to their wives, as for damaged goods. The court simply raised women’s rights for loss of consortium to the level of preexisting rights of men.

More to the point, the Illinois Appellate Court has already barred a claim for loss of consortium when the cohabitants were unmarried at the time of the alleged injuries, but intended to marry and did in fact marry at a later time. (Sostock v. Reiss (1980), 92 Ill. App. 3d 200, 415 N.E.2d 1094.) In Sostock, the husband sought damages for loss of consortium dating from the time of the marriage. The court rejected this claim because he was not the lawful spouse at the time the accident occurred.

We find no basis to depart from the reasoning of Sostock and the other pertinent authorities and conclude that the trial court properly dismissed those counts of the complaint that consisted of Carolyn Medley’s loss of consortium claims. Accordingly, we affirm.

Affirmed.

McMORROW, P.J., and JOHNSON, J., concur.


text:
    JOHN P. MOLDEN, Plaintiff-Appellee, v. ZADDOCK J.B. REID et al., Defendants-Appellants.
    First District (4th Division)
    No. 1—88—3123
    Opinion filed June 21, 1990.

      Peter M. Barron, of Northbrook, for appellant Fitz J. Ogilvie.
    Stanley L. Hill & Associates, P.C., of Chicago (Lawrence E. Sommers, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Defendant Fitz J. Ogilvie appeals from the trial court’s denial of his section 2 — 1401 petition (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401) to vacate an ex parte judgment. He contends that the trial court abused its discretion in denying the petition because he met the requirements for post-judgment relief, equitable considerations also warranted post-judgment relief, the trial court should have treated the allegations of the section 2 — 1401 petition as uncontroverted, the trial court should have held an evidentiary hearing on the section 2 — 1401 petition, and the trial court improperly awarded attorney fees and punitive damages to plaintiff.

On September 27, 1985, plaintiff, John P. Molden, filed a two-count complaint against Fitz J. Ogilvie and three other defendants, Zaddock J.B. Reid, Michael D. Campbell and Baldwin S. Barnes, jointly and severally. Only Ogilvie was served with summons, and the other defendants therefore are not involved in this appeal.

The gist of the complaint was that defendants fraudulently induced plaintiff to invest in a bankrupt business, gave him an $11,500 promissory note and failed to pay on the note. Plaintiff alleged that defendants misrepresented the financial condition and purpose of the business, the amount of the return on plaintiff’s investment, the use to which his investment would be put and the risk involved. Count I was based upon common law fraud, and count II was based upon the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121V2, par. 261 et seq.). In both counts, plaintiff requested compensatory damages in the amount of $11,500, court costs and attorney fees. In count I, he also requested punitive damages in the amount of $100,000.

The sheriff of Cook County secured substitute service on Ogilvie on October 5, 1985, and an appearance and an answer were filed on his behalf on November 1, 1985, by attorney Brian Pedersen of 326 North Michigan Avenue in Chicago. The answer, but not the appearance, discloses that Pedersen worked for Hyatt Legal Services. The answer consisted of general denials of some of the allegations, and demands for strict proof of the remaining allegations.

Brian Pedersen apparently left Hyatt Legal Services in 1986. Another Hyatt attorney, David N. Schaffer, then assumed responsibility for the case at bar. When the case was presented on the April 7, 1986, progress call, an order was entered placing it on the trial call. The order was signed “Hyatt/Schaffer” with the same office address that Pedersen previously had provided.

Schaffer, however, failed to appear for the September 28, 1987, trial call, and Judge Lester D. Foreman accordingly assigned the case to Judge Louis J. Giliberto for prove up in December. (The September 28 order is not in the record on appeal.) At the prove up, the trial court found defendant liable for common law fraud, violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 121V2, par. 261 et seq.) and failure to pay on the promissory note. On December 22, 1987, the trial court entered an ex parte judgment in favor of plaintiff and against Ogilvie, and ordered Ogilvie to pay to plaintiff $50,000 in punitive damages, $11,500 in compensatory damages plus post-judgment interest at a rate of 9%, court costs, and $2,500 in attorney fees. The judgment reflects that an “Order of Default” was entered. Ogilvie, however, had filed an answer. Therefore, the judgment was not a default judgment; rather, it resulted from ex parte proceedings. See Fabian v. Norman (1985), 138 Ill. App. 3d 507, 512, 486 N.E.2d 335; Ryan v. Bening (1978), 66 Ill. App. 3d 127, 131, 383 N.E.2d 681; Dils v. City of Chicago (1978), 62 Ill. App. 3d 474, 479-80, 378 N.E.2d 1130.

On January 21, 1988, plaintiff filed a citation to discover assets and scheduled a hearing for February 11, 1988. On February 11, Schaffer filed an appearance for Ogilvie in the supplementary proceedings.

On April 11, 1988, Schaffer filed a petition pursuant to section 2— 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401) to vacate the orders entered on September 28 and December 22, 1987. He also filed Ogilvie’s supporting affidavit. The section 2— 1401 petition reflected that Schaffer’s address still was 326 North Michigan Avenue in Chicago. An order entered on September 1, 1988, reflects that Schaffer had a new address at 6835 North Lincoln Avenue in Lincolnwood, Illinois.

The section 2 — 1401 petition and Ogilvie’s affidavit asserted that Ogilvie had a valid defense because he was not an agent of Reid and did not engage in any scheme to defraud plaintiff. Ogilvie asserted further that he had diligently presented his defense in the original action because he had filed an appearance and an answer and had attended a deposition. He alleged further that he had diligently filed his petition to vacate because he contacted his attorney as soon as he received the citation summons, and his attorney then investigated the judgment, procured a computer printout of the docket history of the case and called plaintiff’s lawyer. Finally, he claimed that the circumstances surrounding the ex parte judgment were unfair, unjust and unconscionable. He alleged that at the prove up plaintiff’s attorney concealed the fact that defendant had filed an appearance in the case. He alleged further that plaintiff’s attorney had violated section 2— 1302 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1302) by concealing the orders of September 28 and December 22, which cast a cloud over the.proceedings.

Several exhibits were attached to the section 2 — 1401 petition, including a copy of a computer printout of the docket history of the case. The printout disclosed in part as follows:

“09/22/87 Sorrentino, P.A.
Case Set On Assignment Call
09/28/87 Foreman, Lester D.
Advance Or Reset On Call
* * *
12/22/87 Giliberto, Louis J.
Judgment For Plaintiff.”

A handwritten word which looks like the word “default” appears next to the entry for September 28, 1987.

Plaintiff filed a response to the section 2 — 1401 petition. The response did not include a counteraffidavit. Judge Giliberto, who previously had presided over the ex parte prove up, held a hearing on the petition on September 16, 1988. At the hearing, the trial court observed that the petition to vacate and supporting affidavit consisted of conclusions and lies. The court stressed that no facts were alleged to support the existence of a meritorious defense or the exercise of diligence. Furthermore, the trial court specifically characterized as a “lie” Schaffer’s assertion that plaintiff’s attorney had concealed defendant’s appearance from the court at the prove up. The court affirmatively stated that it had seen defendant’s appearance in the court file at the time of the prove up. The trial court also indicated that plaintiff’s attorney could not be accused of having concealed the existence of the judgment because it was a matter of public record.

The trial court repeatedly asked Schaffer to state facts in support of the allegations in the section 2 — 1401 petition and supporting affidavit, but he was unable to do so. Instead, he told the court that Brian Pedersen had worked in a different branch office of Hyatt Legal Services, and he stated that that office might have received notice. Schaffer admitted that his firm had made a mistake in missing the September 28, 1987, trial call. Schaffer admitted further that he had failed to check the Chicago Daily Law Bulletin to determine when the case would be called for trial, that he had made no notation concerning the trial call and that his calendar contained only a “tickler” to check the case in February 1988.

When the trial court asked Schaffer where Ogilvie was, Schaffer replied that Ogilvie was not present in court for the hearing on the section 2 — 1401 petition because no evidentiary hearing was necessary. At the conclusion of the hearing, the trial court denied Ogilvie’s section 2 — 1401 petition to vacate, and he has appealed.

Section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401) provides the procedure for vacating a judgment after 30 days from the date of entry of the judgment. (See Kaput v. Hoey (1988), 124 Ill. 2d 370, 377-78, 530 N.E.2d 230; Galligan v. Washington (1987), 163 Ill. App. 3d 701, 707, 516 N.E.2d 894.) A section 2 — 1401 petition is addressed to the sound discretion and equitable powers of the trial court. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 221, 499 N.E.2d 1381.) The trial court’s judgment may be set aside on appeal only in the event of an abuse of that discretion. (Smith v. Airoom, Inc., 114 Ill. 2d 209, 499 N.E.2d 1381; Galligan v. Washington, 163 Ill. App. 3d 701, 516 N.E.2d 894.) A litigant must demonstrate four elements in order to qualify for relief under section 2 — 1401: (1) a meritorious claim or defense, (2) due diligence in presenting it in the original action, (3) due diligence in presenting the section 2 — 1401 petition, and (4) the trial court’s misapprehension of the claim, defense or facts, through no fault or negligence of the litigant. Gayton v. Levi (1986), 146 Ill. App. 3d 142, 148, 496 N.E.2d 1045; see also Kaput v. Hoey, 124 Ill. 2d at 378.

Section 2 — 1401 “is not to be utilized in order to protect a litigant from the consequences of his own mistakes or his counsel’s negligence.” (Gayton v. Levi, 146 Ill. App. 3d at 148.) In determining the reasonableness of the litigant’s reason for not having acted sooner, the court must consider the conduct of the litigants and their attorneys. Smith v. Airoom, Inc., 114 Ill. 2d at 222.

A petition to vacate an ex parte judgment should contain factual allegations showing a meritorious defense and due diligence in attempting to present that defense to the trial court. (See Berkson v. Quality Beauty Supply Co. (1976), 36 Ill. App. 3d 877, 880, 344 N.E.2d 629.) The petition must be supported by an affidavit or other appropriate showing with respect to matters not of record. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401(b); see also Okumura v. Nisei Bowlium, Inc. (1976), 43 Ill. App. 3d 753, 756, 357 N.E.2d 187.) The trial court’s decision will not be reversed in the absence of a showing of an abuse of discretion. Berkson v. Quality Beauty Supply Co., 36 Ill. App. 3d at 880.

In the case at bar, Ogilvie alleged that he had a meritorious defense because he did not engage in a scheme to defraud plaintiff and he was not Reid’s agent. These gratuitous allegations are bare conclusions of law. (Cf. Graf's Beverages of Illinois, Inc. v. Tauber (1977), 50 Ill. App. 3d 1047, 1051-52, 366 N.E.2d 150.) Mere conclusions are not treated as true for the purpose of a petition for post-judgment relief (see People v. Jayne (1977), 52 Ill. App. 3d 990, 1015, 368 N.E.2d 422) and are not sufficient to warrant such relief (see State Bank v. Fair Winds, Inc. (1979), 73 Ill. App. 3d 597, 600, 392 N.E.2d 638). Nor do the allegations of Ogilvie’s answer to plaintiff’s complaint demonstrate the existence of a meritorious defense, because the answer was partly evasive and was partly comprised of a general denial. There was no affirmative defense explaining defendant’s claims. See Graf's Beverages of Illinois, Inc. v. Tauber, 50 Ill. App. 3d at 1052; cf. Fabian v. Norman (1985), 138 Ill. App. 3d 507, 510-11, 486 N.E.2d 335.

In a belated effort to demonstrate the requisite meritorious defense, Ogilvie has presented facts which are extrinsic to the record on appeal. Attached to his appellate brief is a portion of a deposition transcript which was not included in the record. We may not consider this information on review because it was not a part of the trial court proceedings and is dehors the record on appeal. See Okumura v. Nisei Bowlium, Inc., 43 Ill. App. 3d at 755.

For all of the above reasons, Ogilvie failed to demonstrate the existence of a meritorious defense as to the underlying liability. This alone would be sufficient to disqualify him from receiving post-judgment relief.

However, Ogilvie also has failed to establish that he exercised due diligence in the original action. We have reached this conclusion without taking into consideration the extrinsic materials improperly appended to plaintiff’s appellate brief. See Okumura v. Nisei Bowlium, Inc., 43 Ill. App. 3d at 755.

Schaffer attempted to excuse his failure to answer the September 28, 1987, trial call by claiming that he and Pedersen were not based in the same branch office of Hyatt Legal Services. However, as late as the April 11, 1988, petition to vacate, Schaffer was still listing his address as 326 North Michigan Avenue, which was the same address that Pedersen had used.

Furthermore, Schaffer’s name appears on the April 7, 1986, progress call order placing the case on the trial call, which suggests that he was aware of the pendency of the case on the trial call. Schaffer admitted, however, that he made no notation regarding the trial call, that he never checked the Law Bulletin for the trial call date (see Cook County Circuit Court Rule 5.1(a)), that he missed the trial call and that his calendar contained only a “tickler” to check the case in February 1988. His negligence is not remediable through section 2— 1401.

Nor is the failure of plaintiff’s attorney to notify Ogilvie of the judgment remediable through section 2 — 1401. The status of the case was a matter of public record. Although the computer printout did not specify the nature of the proceedings on September 28, 1987, activity on that date was apparent from the printout, and the printout clearly disclosed the entry of a judgment for plaintiff on December 22, 1987. We therefore reject Ogilvie’s contention that plaintiff’s failure to provide notice of the September 28 and December 22 orders cast a cloud on the proceedings and warranted the relaxation of the due diligence standard.

Nor are we persuaded by Ogilvie’s reliance upon plaintiff’s alleged delay in enforcing the ex parte judgment. According to Ogilvie, plaintiff waited to enforce the December 22, 1987, judgment long enough to delay defendant’s discovery of the judgment until more than 30 days after its entry. Plaintiff initiated supplementary proceedings on January 21, 1988. On January 27, 1988, Ogilvie received substitute service of the citation to discover assets. There was no showing that plaintiff gained any unfair, unjust or unconscionable advantage from this short delay. (See Smith v. Airoom, Inc., 114 Ill. 2d at 227-28.) We are satisfied that the above equitable considerations did not warrant the imposition of post-judgment relief at least as to liability.

Ogilvie contends next that the trial court should have treated the section 2 — 1401 petition as uncontroverted. The conclusional nature of the allegations discredits this contention. Plaintiff was not required to file a counteraffidavit to deny legal conclusions or to controvert the petition.

Next, Ogilvie contends that the trial court should have held an evidentiary hearing on his section 2 — 1401 petition because the parties disputed the “central factual allegations” of the petition. This contention is inconsistent with his assertion that his section 2 — 1401 petition should have been treated as uncontroverted. Furthermore, the contention is contrary to his previous position. During the hearing on the section 2 — 1401 petition, Schaffer orally argued that he had not advised Ogilvie to appear in court because his section 2 — 1401 petition did not require an evidentiary hearing. We therefore reject Ogilvie’s contention that the trial court should have held an evidentiary hearing on his section 2 — 1401 petition.

Finally, even though Ogilvie failed to establish the existence of a meritorious defense as to the underlying liability, we are concerned about the ex parte award of damages in this case, particularly punitive damages, which are not favored in the law. (See Smith v. Dunaway (1966), 77 Ill. App. 2d 1, 5, 221 N.E.2d 665.) In Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 614, 190 N.E.2d 348, the Illinois Supreme Court criticized the “precipitate manner in which damages were assessed” and stated as follows:

“The mere fact that a defendant is defaulted does not give to the plaintiff a right or claim to the assessment of damages unrelated to liability ***.***
*** Although defaulted, where the action is in tort or for an unliquidated claim or amount, a defendant nonetheless has the right to be heard on the matter of damages.”

(See also Goczeski v. Horizon Development Corp. (1981), 102 Ill. App. 3d 6, 9, 428 N.E.2d 1180; Graf's Beverages of Illinois, Inc. v. Tauber, 50 Ill. App. 3d at 1052-53; 612 North Michigan Avenue Building Corp. v. Factsystem, Inc. (1975), 34 Ill. App. 3d 922, 928, 340 N.E.2d 678; but cf. Joseph A. Thorsen Co. v. Evans (1980), 82 Ill. App. 3d 1119, 1125, 403 N.E.2d 666.) The question of damages is peculiarly within the province of the jury (see Chambers v. Rush-Presbyterian-St. Luke’s Medical Center (1987), 155 Ill. App. 3d 458, 467, 508 N.E.2d 426, appeal denied (1987), 116 Ill. 2d 549, 515 N.E.2d 102) and the defendant is entitled to “cross-examine plaintiff’s witnesses and introduce any material evidence bearing on damages, take all proper measures to preserve questions in those respects for review, and request the giving of pertinent instructions.” Smith v. Dunaway, 77 Ill. App. 2d at 6.

Turning to the case at bar, we believe that Ogilvie should have an opportunity to contest the issue of damages. We therefore remand the cause for the redetermination of punitive and compensatory damages, court costs, and attorney fees.

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

Affirmed in part; reversed in part, and cause remanded.

McMORROW, P.J., and JOHNSON, J., concur.