author: JUSTICE GORDON

text:
    JOHN E. KEMNITZ, Plaintiff-Appellant, v. EMANUEL SEMRAD, Defendant-Appellee.
    First District (5th Division)
    No. 1—88—1495
    Opinion filed June 29, 1990.
    Rehearing denied January 17, 1991.

      Jeffrey E. Martin, of Karlin & Fleisher, and David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky and Kathleen M. Iirist, of counsel), for appellant.

      Michael Resis and Victor J. Piekarski, both of Querrey & Harrow, Ltd., of Chicago, for appellee.
   JUSTICE GORDON

delivered the opinion of the court:

Plaintiff appeals from an order of the circuit court of Cook County refusing to instruct the jury on one of the issues raised by him in his medical malpractice action for a nerve injury resulting from surgery to repair a fractured humerus. Plaintiff contends that the trial court erred in refusing to instruct on his issue of whether defendant had improperly retracted the radial nerve during surgery to repair a fractured humerus. We affirm.

Plaintiff fractured his right humerus, the long arm bone extending from the shoulder to the elbow, while arm wrestling with his brother. Defendant diagnosed the fracture as a comminuted, or fragmented, fracture of the right distal humerus and, after conservative treatment failed, scheduled plaintiff for surgery to repair the fracture. Prior to the surgery, plaintiff was able to freely move his right fingers and wrist.

Defendant performed an open reduction and internal fixation of the humerus on May 2, 1980. During the surgery, he identified the radial nerve, retracted the nerve away from the humerus, and set the fracture, first using bone clamps to hold the fracture fragments in place and then a metal plate and screw to secure the positioning. During recovery, plaintiff first noticed that he was unable to extend his fingers. When plaintiff was later discharged from the hospital, he still had this problem with his fingers and defendant’s discharge notes indicated that plaintiff had a temporary radial nerve palsy due to traction.

Plaintiff's radial nerve function did not return during the following months, and on December 16, defendant and Dr. John Bilos, a hand surgeon, performed surgery upon plaintiff to explore the radial nerve. They discovered the presence of a neuroma, a proliferative mass of cells and neurites developed at or to the proximal end of a severed nerve, near the fracture site. Dr. Bilos performed a resection in an attempt to repair the radial nerve. Despite the surgery, plaintiff did not regain full function of the radial nerve.

Plaintiff’s medical expert, Dr. Richard Levy, a board-certified orthopedic surgeon, testified on direct examination that the medical standard of care in major medical centers was to protect the radial nerve during surgery to repair a fractured humerus. Based on Levy’s review of the medical records and testimony and his experience and his education, he concluded that defendant had deviated from that standard. He stated that his opinion was based on the presence and location of the traumatic neuroma. He postulated that because of the location of the neuroma, the radial nerve was damaged in one of four possible ways: (1) it could have been crushed between a bone clamp or other instrument and the bone; (2) it could have been retracted too forcefully, causing a traction injury to the nerve; (3) it could have gotten caught under the metal plate; or (4) it could have been caught within the break itself when the fracture was repositioned. Of the four possibilities, he stated that the nerve was most likely crushed between a bone clamp or other instrument and the bone. He further stated that “[t]he other means of causing a neuroma, such as inadvertently cutting the nerve, would have also cut the nerve *** [a]nd that wasn’t present in this case.”

Dr. Levy further testified on direct examination that the medical standard in major medical centers for retracting the radial nerve during surgery to repair the humerus was to identify the nerve and.then to dissect sufficiently so that the nerve could be mobilized away from the bone without any undue force. When Levy was asked what he meant by undue force, he responded:

“If it requires very much force to pull on a nerve, you will permanently damage it.
One develops a feel from this during surgery as to whether the nerve feels loose enough so that you feel it can be moved and you’re not putting any strain on the nerve itself.”

He concluded that because of the presence of the neuroma, excessive retraction was one possible cause of the radial nerve damage. He did state on cross-examination, however, that aside from the neuroma, there was nothing in the records or other materials he reviewed to indicate that defendant had excessively retracted the nerve. Further, he testified that a nerve injury was a recognized risk of an open reduction and internal fixation.

Defendant’s medical expert, Michael Pinzur, also a board-certified orthopedic surgeon, testified that defendant had conformed with the appropriate medical standard of care in protecting the radial nerve during the surgery to repair the humerus. He specifically stated that based on his review of the relevant records, he did not believe that the radial nerve was crushed by either the bone clamp, the bone fragments or the metal plate and did riot believe that the radial nerve was subjected to excessive movement of the retractor.

At the close of proofs, defendant moved for a directed verdict on all issues, but the trial court only refused to instruct the jury on the excessive retraction issue, finding that plaintiff had failed to establish a standard of care for retraction of the nerve. The court noted:

“It seems to me if you’re going to testify — if you’re going to say that there is a certain standard of care in terms of how much traction is used on the nerve, that there has to be some standard out there.
You have to establish that a doctor knows when it’s pulled too much or that a pulling is too much. There has to be something there that’s done that one would know in advance is beyond what is appropriate. * * *
There has to be some measure, and it really does have to be an objective measure that physicians have to meet.
And what you’re saying is no there isn’t, this is a subjective thing that doctors learn. And that’s what your expert said. It’s a subjective thing that doctors learn over a period of time as how to do this.”

The case then went to the jury on the other three possible causes of the nerve injury, and the jury returned a verdict in favor of defendant.

Plaintiff contends that the trial court erred in refusing to instruct the jury on the retraction issue because his medical expert did in fact testify as to the appropriate medical standard of care. Defendant, without conceding the issue of whether plaintiff established a standard of care, primarily argues that the trial court’s refusal to instruct was correct because plaintiff failed to establish any deviation from an appropriate medical standard of care. Defendant further argues that the only way plaintiff could have met his burden would have been if he had been permitted an inference of negligence based on a res ipsa loquitur theory but that he had earlier “withdrawn” that theory. We agree that plaintiff established a medical standard of care for retraction of the radial nerve during surgery but, nonetheless, affirm the trial court on the basis that plaintiff failed to show any deviation from that standard.

In a medical malpractice action, a plaintiff must establish a medical standard of care, a deviation from that standard, and a causal connection between that deviation and the injuries sustained. (Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 432, 328 N.E.2d 301, 305.) The medical standard of care must be that of a reasonably well-qualified practitioner in the locality where the defendant doctor practices (Purtill v. Hess (1986), 111 Ill. 2d 229, 242, 489 N.E.2d 867, 872) and not merely the subjective standard of one who testifies. (Stevens v. Sadiq (1988), 176 Ill. App. 3d 333, 338-39, 530 N.E.2d 1159, 1162.) The standard serves as a guide by which to measure a defendant’s conduct in a particular situation. (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 255, 381 N.E.2d 279, 282.) Because medicine is not an exact science, an acceptable medical standard of care need not be precise but may provide for the exercise of individual judgment as long as it is within the framework of established procedures. (See Piano v. Davison (1987), 157 Ill. App. 3d 649, 667, 510 N.E.2d 1066, 1079.) Where there is an insufficient evidentiary basis to give an instruction on an issue in a medical malpractice case, it would be reversible error to give such an instruction. Gruidl v. Schell (1988), 166 Ill. App. 3d 276, 282, 519 N.E.2d 963, 967.

In the present case, plaintiff did establish a medical standard of care for retraction of the nerve during surgery to repair a fractured humerus. Dr. Levy, plaintiff’s expert, testified that the standard in major medical centers was to first identify the radial nerve and then sufficiently dissect it so that it could be moved away from the bone without too much force. Although Dr. Levy could not quantify the amount of force that would be too much, he did state that “[o]ne develops a feel from this during surgery as to whether the nerve feels loose enough so that you feel it can be moved and you’re not putting any strain on the nerve itself.” This testimony was sufficient to establish a guide for judging defendant’s conduct. It demonstrated that there was a generally accepted procedure for first identifying the nerve and then dissecting it sufficiently so that it is loose enough to not put any strain on the nerve. This standard was sufficiently understandable for a jury to measure defendant’s conduct during the surgery and determine whether he deviated from it. See Walski v. Tiesenga (1978), 72 Ill. 2d 249, 262, 381 N.E.2d 279, 285.

The fact that Dr. Levy could not testify as to the specific amount of force that would be “too much” in retracting the nerve did not make this standard a subjective standard. Levy did not testify as to his own personal preference for retracting the nerve. He expressly testified to the standard of medical care in major medical centers nationwide. Thus, this was not a situation like that in Stevens v. Sadiq (1988), 176 Ill. App. 3d 333, 530 N.E.2d 1159, where a doctor testified as to his own personal standard of care. (See also Walski v. Tiesenga (1978), 72 Ill. 2d 249, 381 N.E.2d 279.) Moreover, to require that there always be a mathematical, quantifiable standard of medical care in surgical procedures would create a near impossible burden for a plaintiff to meet. Medical treatment often requires the exercise of qualitative judgment. That judgment frequently varies from patient to patient, dependent upon such factors as the physical structure and condition of the person being treated. To require a plaintiff to establish a quantitatively identical standard for the treatment of every patient would be inconsistent with this reality of medical treatment. See Piano v. Davison (1987), 157 Ill. App. 3d 649, 510 N.E.2d 1066.

A similar type of standard was testified to in Piano v. Davison (1987), 157 Ill. App. 3d 649, 510 N.E.2d 1066. There, one of defendant’s medical experts testified that the standard of care for placement of a burr hole in the skull was

“ ‘after you accumulate experience, everyone puts their hole somewhere in that area, but not exactly.’ As a neurosurgeon does more and more shunts, ‘he will determine what his own landmarks are. *** It all depends on what works in your own hands.’ ” (Piano, 157 Ill. App. 3d at 660, 510 N.E.2d at 1074-75.)

Plaintiff argued that this testimony failed to establish a medical standard of care because it only represented the doctor’s personal standard. The Piano court, however, rejected the argument, stating: “Illinois courts recognize that medicine is not an exact science, but instead is a profession which involves the exercise of individual judgment within the framework of established procedures ***.” (Piano, 157 Ill. App. 3d at 667, 510 N.E.2d at 1079.) In the present case, the judgment exercised to determine the amount of force appropriate for that retraction was one such exercise of individual judgment within the framework of the established procedure of first identifying and then sufficiently dissecting the nerve so that it is loose enough not to put any strain upon it. As such, it constituted an appropriate standard of care.

We find, however, that plaintiff failed to establish that defendant deviated from this standard of care. Since plaintiff’s amended complaint contained only allegations of ordinary negligence, his burden was to prove by affirmative evidence that, judged by this standard, the defendant doctor was unskillful or negligent. (Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 423, 328 N.E.2d 301, 305.) He failed to do so in this case.

The sole evidence which relates to this element of plaintiff’s malpractice claim again comes from the testimony of Dr. Levy, his medical expert. On direct examination, Levy testified that it was his opinion that defendant deviated from the appropriate standard of care in his treatment of the nerve, but that his opinion was based on the presence of the neuroma at the site of the severed nerve. He stated that he believed that the nerve was damaged in one of four ways, including the possibility that it was retracted too forcefully, solely because of the presence of a traumatic neuroma. On cross-examination, he testified that aside from the neuroma, there was nothing in the records he reviewed to indicate excessive retraction. He added that:

“[B]ecause there is a neuroma *** something had to happen. And the four possibilities I gave were my opinion as to the most likely cause[s] of how this neuroma became present. * * *
There is no other means of developing a traumatic neuroma other than injuring a nerve.”

Dr. Levy’s testimony does not constitute affirmative evidence that defendant was unskillful or negligent in performing the retraction. Although he did conclude that defendant had deviated from the standard of care, his testimony does not support such a conclusion. The only support for this conclusion was the presence of the neuroma, a symptom of the injury, from which Levy reasoned backwards that there must have been a deviation. There was no other evidence in the various materials he reviewed that defendant had deviated from the standard of care. Under ordinary negligence theory, one cannot establish negligence through the mere existence of an injury. (See Spike v. Sellett (1981), 102 Ill. App. 3d 270, 273, 430 N.E.2d 597, 600; Scardina v. Colletti (1965), 63 Ill. App. 2d 481, 488, 211 N.E.2d 762, 765.) There must be affirmative evidence of negligence.

In Scardina v. Colletti (1965), 63 Ill. App. 2d 481, 211 N.E.2d 762, plaintiff charged malpractice based on a failure to ligate a blood vessel and based his claim of a deviation largely on a bad result. In granting defendant’s motion for a directed verdict, the court noted that the proper burden for establishing a deviation was:

“The plaintiff must prove by affirmative evidence that the defendant was unskillful or negligent ***. It is not enough to prove that he made a mistake or that his treatment harmed the plaintiff; proof of a bad result or mishap is no evidence of lack of skill or negligence.” (Scardina, 63 Ill. App. 2d at 488, 211 N.E.2d at 765.)

Similarly, in the present case, plaintiff’s claim of a deviation is based on Levy’s testimony concerning the neuroma and its likely cause and, as such, was insufficient to establish a deviation.

Nonetheless, plaintiff argues that Dr. Levy’s direct examination testimony established that defendant deviated from the standard of care and was sufficient to permit the issue to go to the jury. He further argues that any contradictions or inconsistencies present in his cross-examination ought not be considered for purposes of determining whether he has met his burden but as matters going to the weight and credibility of his testimony. His argument, however, is based on the false premise that Levy’s direct examination testimony did establish affirmative evidence of a deviation. Although Levy did state in a conclusory fashion that there was a deviation, he clearly indicated on direct examination that he based his opinion solely on the presence of the neuroma, which as previously indicated is insufficient to establish a deviation. Scardina v. Colletti (1965), 63 Ill. App. 2d 481, 488, 211 N.E.2d 762, 765.

Where there is no evidence to support an issue, a trial court’s refusal to instruct on that issue is proper. (Probus v. Brown (1975), 33 Ill. App. 3d 639, 641, 338 N.E.2d 231, 232.) Since plaintiff failed to prove defendant’s deviation from the relevant medical standard, the trial court’s refusal to instruct on that issue was proper.

We need not consider whether plaintiff could have developed his case under a res ipsa loquitur theory since he dropped the res ipsa loquitur count contained in his initial complaint when he amended it.

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

Affirmed.

COCCIA, P.J., and MURRAY, J., concur.


source: Caselaw Access Project

author: JUSTICE MANNING

license: Public Domain

text:
    DAVID RALLO, as Special Adm’r of the Estate of Denise Colangelo, Deceased, Plaintiff-Appellant, v. THE CROSSROADS CLINIC, INC., et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—88—2507
    Opinion filed September 28, 1990.
    Rehearing denied January 4, 1991.

      Patrick J. Kenneally, Ltd., of Chicago (Peter R. Coladarci, of counsel), for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Gerald L. Maatman, Jr., and Corinne Seither, of counsel), for appellees Jean & Eve Alexandre, M.D., S.C., and Jean Alexandre.
    French, Rogers, Kezelis & Kominiarek, P.C., of Chicago (Algimantas Kezelis, Russell P. Veldenz, and Mary M. Cunningham, of counsel), for appellee The Crossroads Clinic, Inc.
   JUSTICE MANNING

delivered the opinion of the court:

This appeal arises from an order of the trial court granting the defendants’ motion to dismiss the decedent’s mother and siblings as beneficiaries in a wrongful death action. The following issues are raised on appeal: (1) whether the trial court properly dismissed the decedent’s mother and siblings as beneficiaries in a wrongful death action when the decedent was survived by two minor children; (2) whether dismissal of the mother’s and siblings’ claims violated the equal protection clause of the fourteenth amendment; and (3) whether the claims of the mother and siblings are barred by the statute of limitations. We affirm the order of the trial court.

On September 12, 1984, Denise Colangelo filed a lawsuit against The Crossroads Clinic, Inc., Daniel Nwankwo, M.D., C. Sims, M.D., and Jean Alexandre, M.D., alleging that they negligently failed to diagnose her as suffering from cervical cancer even though she was receiving medical treatment between 1982 and 1983. Ms. Colangelo (hereafter decedent) died on October 6, 1984, and her death was spread of record on April 2, 1985. David Rallo was appointed by the circuit court to serve as the special administrator of her estate. At the time of her death the decedent was survived by two minor children, her mother, three brothers and four sisters.

On March 31, 1987, a second-amended complaint was filed, wherein the decedent’s children, mother and siblings were added as beneficiaries in her wrongful death action, contending that they “suffered pecuniary losses compensable under the Wrongful Death Act” (Ill. Rev. Stat. 1983, ch. 70, pars. 1, 2). The Crossroads Clinic and Dr. C. Sims filed a motion to dismiss the mother and siblings as beneficiaries, alleging that since the decedent was survived by two minor children, the mother and siblings were improper beneficiaries under the Illinois Wrongful Death Act. During a hearing held on July 6, 1988, Drs. Nwankwo and Alexandre joined in the motion. On July 7, 1988, the trial court granted the defendants’ motion to dismiss pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-615).

Plaintiffs initially argue that a mother and siblings of a decedent who is also survived by children are beneficiaries under the Wrongful Death Act. (Ill. Rev. Stat. 1983, ch. 70, par. 2.) The Wrongful Death Act provides in pertinent part:

“Every such action shall be brought by and in the names of the personal representatives of such deceased person, and, except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person ***.” Ill. Rev. Stat. 1983, ch. 70, par. 2.

As noted by the Wrongful Death Act, recovery of damages is limited to those beneficiaries described in the statute, i.e., decedent’s surviving spouse and next of kin. (Maga v. Motorola, Inc., (1987), 163 Ill. App. 3d 524, 527, 516 N.E.2d 774; Rodgers v. Consolidated R.R. Corp. (1985), 136 111. App. 3d 191, 194, 482 N.E.2d 1080; Porter v. Klein Construction Co. (1987), 162 Ill. App. 3d 1, 3, 515 N.E.2d 1208; Dotson v. Sears, Roebuck & Co. (1987), 157 Ill. App. 3d 1036, 1046, 510 N.E.2d 1208.) Therefore, the resolution of this issue turns on the interpretation of “next of kin.” It is well established that the phrase “next of kin” is defined as persons surviving nearest in degree of blood, and its practical use is those persons surviving who take the personal estate of the deceased under our statutory system of intestate distribution. Wilcox v. Bierd (1928), 330 Ill. 571, 581, 162 N.E. 170, overruled on other grounds, McDaniel v. Bullard (1966), 34 Ill. 2d 487, 494, 216 N.E.2d 140; Schmall v. Village of Addison (1988), 171 Ill. App. 3d 344, 351, 525 N.E.2d 258; Rodgers, 136 Ill. App. 3d at 194; Dotson, 157 Ill. App. 3d at 1047; Forthenberry v. Franciscan Sisters Health Care Corp. (1987), 156 Ill. App. 3d 634, 637, 509 N.E.2d 166; Maga, 163 Ill. App. 3d at 527.

Section 2 of the Wrongful Death Act refers to persons who take the personal property of the deceased in case of an intestacy. (Wilcox, 330 III. 571; Carter v. Chicago & Illinois Midland Ry. Co. (1988), 168 Ill. App. 3d 652, 660, 522 N.E .2d 856.) Therefore, in order to determine which members of the decedent’s family are allowed to recover under the Wrongful Death Act, we must refer to the Probate Act of 1975 (Ill. Rev. Stat. 1983, ch. 1101/2, par. 1 — 1 et seq.). (Wilcox, 330 Ill. at 582; Maga, 163 Ill. App. 3d at 527; Dotson, 157 Ill. App. 3d at 1047.) Pursuant to the Probate Act, parents and siblings are entitled to the property of the decedent only if the decedent does not leave a surviving spouse or children. Ill. Rev. Stat. 1983, ch. 1101/2, pars. 2—1(a) through (d); Maga, 163 Ill. App. 3d at 530.

In the case at bar we are called upon to determine who may sue and under what conditions suit may be brought. A cause of action for wrongful death did not exist at common law. Therefore, the Wrongful Death Act is a statutory source for determining who may sue and under what conditions. (In re Estate of Edwards (1982), 106 Ill. App. 3d 635, 638, 435 N.E.2d 1379.) Under the rule of statutory construction, statutes are in derogation of the common law and must be strictly construed. (Summers v. Summers (1968), 40 Illl. 2d 338, 239 N.E.2d 795; Forthenberry, 156 Ill. App. 3d at 636; Edwards, 106 Ill. App. 3d at 638.) The intent of the legislature in construing a particular statute must be determined by reviewing the plain language of the statute. (Light v. Proctor Community Hospital (1989), 182 Ill. App. 3d 563, 565-66, 538 N.E.2d 828.) The only legitimate function of the court is to enforce the law where the language of an act is unambiguous, not read into the statute exceptions and conditions which depart from the statute’s plain meaning. Light, 182 Ill. App. 3d at 565; Belfield v. Coop (1956), 8 Ill. 2d 293, 134 N.E.2d 249.

Plaintiffs contend that the definition of “next of kin” set forth in Wilcox is outdated and must fall since the courts now allow recovery for loss of society as a compensable “pecuniary injury.” In Elliott v. Willis (1982), 92 Ill. 2d 530, 442 N.E.2d 163, a surviving spouse was permitted to recover for the loss of the decedent’s society. In Bullard v. Barnes (1984), 102 Ill. 2d 505, 517, 468 N.E.2d 1228, a 17-year-old minor was fatally injured in a motor vehicle accident. The court held that “parents are entitled to a presumption of pecuniary injury in the loss of a minor child’s society.” The supreme court expanded its holding in Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 120, 499 N.E.2d 1373, reasoning that there is also a presumption of loss of society for an adult child. However, these cases are not dispositive of the issue before us. In both Bullard and Ballweg, the court was called upon to address the scope of the award of damages and there were no children surviving or spouse.

When Wilcox was decided, the Wrongful Death Act allowed an adult married child who was not dependent upon the deceased to share equally with totally dependent minor children. Consequently, in 1955 the statute was amended by the legislature so that the property would be distributed based on the actual dependency of the spouse and next of kin. (Rodgers, 136 Ill. App. 3d at 195; In re Estate of Griffy (1978), 64 Ill. App. 3d 504, 381 N.E.2d 755.) It is especially noteworthy that although the legislature changed the method of distribution of the decedent’s property, it did not expand the class of beneficiaries. (Porter, 162 Illl. App. 3d at 4; Rodgers, 136 Illl. App. 3d at 195.) The term “next of kin” was unaltered in the 1955 legislative amendment. “Where a statute which has been judicially construed has been re-enacted in substantially the same terms, the General Assembly is presumed to have been familiar with such judicial construction and to have adopted it as part of the law.” (Osborn v. Village of River Forest (1961), 21 Ill. 2d 246, 250, 171 N.E.2d 579.) This rule of law has been restated by other courts, holding that unchanged portions of a reenacted statute will receive the same judicial construction as the prior act because it is presumed that the legislature intended to adopt the prior statutory construction based on its reenactment. (Hupp v. Gray (1978), 73 Ill. 2d 78, 382 N.E.2d 1211; Porter, 162 Ill. App. 3d at 4.) Therefore, when the 1955 amendment became effective, the legislature was presumably aware of the Wilcox court’s interpretation of the phrase “next of kin” and it was free to change the court’s interpretation. (Maga, 163 Ill. App. 3d at 529; see also Osborn, 21 Ill. 2d at 250; Rodgers, 136 Ill. App. 3d at 195.) However, the legislature decided to let the supreme court’s construction of that, phrase stand. Maga, 163 Ill. App. 3d at 529.

The precise issue before us has not been addressed by our supreme court, and the appellate court has reached different conclusions. In viewing the developing case law as it relates to wrongful death actions, it is clear that parents, siblings and children do not stand in the same degree of kindred. Parents and siblings are of the second degree of kindred; whereas, children are of the first degree of kindred. (Wilcox, 330 Ill. at 582.) The plaintiffs rely upon Schmall and Singh v. Air Illinois, Inc. (1988), 165 Ill. App. 3d 923, 520 N.E.2d 852, and Sheahan v. Northeast Illinois Regional Commuter R.R. Corp. (1986), 146 Ill. App. 3d 116, 496 N.E.2d 1179, to support their argument that they are proper beneficiaries. In Schmall, the decedent’s parents and siblings were considered as “next of kin”, by the Second District of the Appellate Court since the decedent was not survived by a spouse or children. In Singh, the first division of the Appellate Court, First District, permitted an adult sibling to recover for her brother’s loss, of society where the decedent was not survived by a spouse or children. In Sheahan, the third division of the Appellate Court, First District, held that siblings may recover for proven loss of society. The facts of that case do not reveal the existence of a surviving spouse or children. The Sheahan court reconciled Prendergast v. Cox (1984), 128 Ill. App. 3d 84, 470 N.E.2d 34, holding that its decision was in accord with Prendergast since the Prendergast court’s decision “could well have been deemed appropriate in view of the evidence adduced as indicated by the record on appeal.” Sheahan, 146 Ill. App. 3d at 119.

In Prendergast, where the decedent was survived by a mother and siblings, the first division of the Appellate Court for the First District allowed recovery to the mother for loss of society but refused to permit the siblings to recover for loss of society. In Prendergast there was not a surviving spouse or children. The United States Court of Appeals for the Seventh Circuit followed the Prendergast decision in the case of In re Air Crash Disaster Near Chicago Illinois, on May 15, 1979 (7th Cir. 1985), 771 F.2d 338. In Carter v. Chicago & Illinois Midland Ry. Co. (1988), 168 Ill. App. 3d 652, 660, 522 N.E.2d 856, the decedent was a minor survived by her father and siblings, the Fourth District of the Appellate Court held that siblings may not recover for loss of society. In Forthenberry, the Appellate Court, Fourth District, held that the parents of an unmarried minor-decedent who was survived by a newborn infant could not recover in a wrongful death action since the newborn infant was the only proper party under the Wrongful Death Act. In Rodgers, the Appellate Court, Fourth District, determined that the parents of the decedent were not beneficiaries under the Wrongful Death Act where the decedent was survived by a spouse and children. In Porter, the fifth division of the Appellate Court, First District, held that the mother of the decedent was not a proper beneficiary under the Wrongful Death Act where the decedent was survived by a spouse and child. In Maga, the second division of the Appellate Court, First District, held that parents and siblings were not allowed to recover because the decedent was survived by a wife.

In all of the aforementioned cases, neither the parents nor siblings were allowed to recover in a wrongful death action where the decedent was survived by a spouse or children. Property of the decedent will only descend to parents and siblings in the absence of a child or spouse. (Wilcox, 330 Ill. at 582.) We, therefore, conclude that under Illinois law neither parents nor siblings are “next of kin” when a decedent leaves surviving children. (Wilcox, 330 Ill. at 582; Forthenberry, 156 Ill. App. 3d at 637; Rodgers, 136 Ill. App. 3d 191, 482 N.E.2d 1080; Porter, 162 Ill. App. 3d at 3.) Our decision does not bar a decedent’s parents or sibling from recovering damages due to the loss of companionship or society. However, recovery is barred where there are surviving children.

Plaintiff next argues that the exclusion of the decedent’s mother and siblings from recovering for loss of society would deprive them of the equal protection of the law in violation of the equal protection clause of the fourteenth amendment. (U.S. Const., amend. XIV.) Defendants contend that excluding certain survivors from the class of proper beneficiaries does not violate the equal protection clause.

In determining whether a legislative classification denies individuals the equal protection of the law, the courts will determine the proper level of scrutiny to be applied to a challenged classification. (People v. Esposito (1988), 121 Ill. 2d 491, 521 N.E.2d 873.) When the classification affects a fundamental right or discriminates against a suspect class, i.e., sex, race, or national origin, the legislation will be subjected to strict scrutiny and it will only be upheld if it serves a compelling State interest. (Frontiero v. Richardson (1973), 411 U.S. 677, 685, 36 L. Ed. 2d 583, 591, 93 S. Ct. 1764, 1769; People v. Tosch (1986), 114 Ill. 2d 474, 501 N.E.2d 1253; Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 489 N.E.2d 1374.) Fundamental rights are only such rights involving the expression of ideas, participation in the political process, travel among the States, and privacy. (People ex rel. Tucker v. Kotsos (1977), 68 Ill. 2d 88, 97, 368 N.E.2d 903.) The classification of beneficiaries in the present case does not affect a fundamental right nor does it discriminate against a suspect class of individuals; therefore, we will apply the rational basis test. In applying this test, we must determine whether there exists a rational basis to a legitimate governmental purpose to justify the classification. (Triple A Services, Inc. v. Rice (1989), 131 Ill. 2d 217, 226, 545 N.E.2d 706; People v. M.A. (1988), 124 Ill. 2d 135, 142, 529 N.E.2d 492; People ex rel. Skinner v. Hellmuth, Obator & Kassabaum, Inc. (1986), 114 Ill. 2d 252, 259, 500 N.E.2d 34.) A classification created by statute will not be set aside as violating the equal protection clause unless it is completely unrelated to a legitimate State goal. Esposito, 121 Ill. 2d 491, 521 N.E.2d 873; Harris, 111 Ill. 2d at 368.

In determining whether the court’s interpretation of “next of kin” violates the equal protection clause, it must be noted that the General Assembly is presumed to have acted conscientiously and that the classification is presumed to be valid. (People v. M.A., 124 Ill. 2d at 141; Hellmuth, 114 Ill. 2d at 262.) Moreover, a statute enacted by the legislature carries a strong presumption of constitutionality. (Esposito, 121 Ill. 2d at 497; Bernier v. Burris (1986), 113 Ill. 2d 219, 227.) It is the responsibility of the party challenging the validity of the statute to show its invalidity, and all reasonable doubts will be resolved in favor of upholding the statute’s validity. People v. M.A. (1988), 124 Ill. 2d 135, 141-42; Hellmuth, 114 Ill. 2d at 262; Harris, 111 Ill. 2d at 363.

The equal protection clause is not violated where the General Assembly enacts legislative classifications which have some reasonable basis, but result in some inequality. (People v. M.A., 124 Ill. 2d at 143; Esposito, 121 Ill. 2d at 500.) Furthermore, where a fundamental right is not involved, the legislature may differentiate between individuals similarly situated if there exists a rational basis for such action. Esposito, 121 Ill. 2d at 500; Tosch, 114 Ill. 2d at 481.

In the present case, the legislature created the class of persons protected by the wrongful death statute. That legislative classification is presumed to be valid, and it will not be set aside if there are facts that may be reasonably conceived to justify the classification. (Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 381, 483 N.E.2d 1271, 1275; Bruce v. Halterman-Flynn (1987), 162 Ill. App. 3d 248, 252, 515 N.E.2d 410.) All parents and siblings who assert a claim to recover damages in a wrongful death action are similarly subject to the limitation that recovery is not permitted if there is a surviving spouse or children. We cannot say that the legislature, being aware of Wilcox’s interpretation of “next of kin,” did not act rationally when it did not alter the phrase “next of kin” in the 1955 legislative amendment to the Wrongful Death Act. Accordingly, we hold that the trial court correctly applied the Probate Act in determining the proper beneficiaries under the Wrongful Death Act and its ruling did not violate the equal protection clause.

One of the defendants argued that the mother’s and siblings’ claims are barred by the statute of limitations since claims brought pursuant to the Wrongful Death Act must be brought within two years from the date of death. (Ill. Rev. Stat. 1985, ch. 70, par. 2.) Our supreme court has frequently held that an issue not raised in the trial court is considered waived and it cannot be raised for the first time on appeal. (In re Marriage of Rodriguez (1989), 131 Ill. 2d 273, 279, 545 N.E.2d 731; Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500, 475 N.E.2d 872; Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, 324 N.E.2d 417.) The record reveals that, in the present case, this issue was not raised before the trial court; therefore, it is not properly before this court.

For the foregoing reasons, we affirm the order of the trial court dismissing appellants’ complaint.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


author: JUSTICE EGAN

text:
    JOHN SALMEN, Plaintiff-Appellee, v. CONSTANCE KAMBEROS, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—0634
    Opinion filed September 28, 1990.
    Rehearing denied November 13, 1990.

      Nisen & Elliott, of Chicago (Michael H. Moirano and Christopher P. Koback, of counsel), for appellant.
    Komessar & Wintroub, of Chicago (Cary J. Wintroub, of counsel), for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, John Salmen (Salmen), filed an amended two-count complaint for malicious prosecution against the defendant, Constance Kamberos (Kamberos), alleging that she had caused a criminal complaint to be filed against the plaintiff on March 24, 1981, and another criminal complaint to be filed against the plaintiff on June 30, 1981, that he was acquitted on both charges and that the defendant had brought the charges knowing that they were unjustified and lacked probable cause.

The defendant filed a counterclaim alleging in one count that the plaintiff had assaulted her on March 23, 1981, in another count that he had committed a battery against her on June 15, 1981, and in another for malicious prosecution of the defendant by the plaintiff’s filing a disorderly conduct charge against her on June 16, 1981, a charge which was dismissed for want of prosecution.

The jury returned a verdict for the plaintiff on both counts of his complaint; it fixed $3,000 compensatory damages and $5,000 punitive damages on count I; on count II it fixed $2,816 for compensatory damages and $5,000 for punitive damages. It also entered a verdict for the plaintiff and against the defendant on all counts of her counterclaim.

The defendant seeks reversal of the money judgments in favor of the plaintiff, contending that the verdicts are against the manifest weight of the evidence; alternatively, she seeks a new trial on the grounds that the judge erred in restricting the testimony of her attorney and that the plaintiff's attorney’s conduct was prejudicial and denied her a fair trial.

In 1974 the plaintiff became employed as the head janitor in the apartment building where the defendant had lived since 1959. When the building was converted to condominiums in 1979, the defendant, who is a lawyer, purchased a unit in the building; the plaintiff remained as head janitor after the conversion.

At 2:15 p.m. on March 23, 1981, an altercation occurred between the parties. Kamberos testified as an adverse witness that, as she stood near the freight elevators on the ground floor in the rear lobby of the building, two doors leading from the alley opened and the defendant saw Salmen “almost running” toward her with his fist over his head, yelling and calling her names. He came within two feet of her and said, “I am going to kill you”; he called her a “swinehundt [sic]” and a “goddamn bitch.” Kamberos screamed for help and heard another door open. Phil Pecoraro, an assistant janitor in the building, entered the lobby, grabbed Salmen by the shoulders and pulled him toward the boiler room; after Pecoraro and Salmen left, Kamberos went up to her apartment. That night she talked with her attorney and then went to the police station. Later, she and two police officers met with Salmen, and she asked Salmen for his key to her apartment; he refused to give her the key. The officers told her- she would have to file suit to recover the key.

Salmen and Pecoraro both testified that they entered the rear lobby together and saw Kamberos standing inside with a piece of paper and a pen or pencil; she looked at her watch and wrote something. Kamberos asked where Salmen had been, and he indicated that it was none of her business and that she was not his boss. Then, as Salmen and Pecoraro walked into the boiler room, Kamberos screamed at them, calling Salmen a “goddamn Hitler Nazi.” Salmen and Pecoraro went into the boiler room and closed the door. Salmen was never closer than 10 feet to Kamberos, and he denied ever yelling or waving his fist at Kamberos.

The next day Kamberos went to the police station and swore out a complaint for assault against the defendant. On April 15, 1981, Salmen appeared in criminal court on the assault complaint. Kamberos testified against him, and Salmen and Pecoraro testified in Salmon’s defense. The judge found Salmen not guilty.

In the afternoon of June 15, 1981, another incident between the parties occurred. Kamberos testified that, at approximately 4 p.m., she and a man named Fontanini entered the rear lobby through the double doors; she asked Fontanini to wait, and she headed to the front lobby to get her mail from her mailbox. As she passed the boiler room door in the rear lobby, Salmen opened the door, struck her right shoulder with his fist and told her to get out of the way. Salmen then returned to the boiler room and closed the door immediately. Kamberos proceeded to the mail room where she saw, but did not talk to, the plaintiff’s wife, Anna Salmen. Sometime in the week following these events, Kamberos again talked with her attorney, who advised her to sign a criminal complaint for battery against the defendant. Kamberos signed the complaint, and in September 1981, Salmen was again found not guilty of battery after a bench trial.

Salmen testified that on June 15 at approximately 3:30 p.m. he was working in the boiler room when Pecoraro told him that Kamberos was in the front lobby arguing with another janitor, Willie Wagner. Salmen went to the lobby and told her to leave his janitors alone, and she headed toward the mailboxes. The three janitors then heard yelling coming from the mailbox location and went to investigate. They found Kamberos screaming at Anna Salmen, calling her “fat slob” and “pig.” Salmen told Kamberos to leave his wife alone and told Pecoraro to call the police. Kamberos left, and when the police came, they told Salmen to sign a complaint against Kamberos, which he did the following day. A hearing on Salmon’s complaint was scheduled on June 21, 1981, but Salmen did not appear in court, and the complaint was dismissed. On July 10, 1981, Salmen was arrested on the second complaint signed by Kamberos on June 30. Salmen was handcuffed, taken to the police station, fingerprinted and charged with battery. As previously noted, he was found not guilty after a bench trial.

Pecoraro testified that on June 15, 1981, he and Wagner were shampooing the carpet in front of the building when Kamberos approached Wagner and said, “Your father working [sic] here and we got to support your drunken father, all your family.” At that point Pecoraro went to get Salmen. He and Salmen returned to the front lobby 30 seconds later. After Salmen told Kamberos to leave his men alone, Kamberos began screaming at Salmen. Kamberos then went to the mailboxes and began screaming at Salmen’s wife. Salmen told Pecoraro to call the police, and Pecoraro did so. Pecoraro testified that Salmen never struck Kamberos.

Willie Wagner testified that on June 15, 1981, while he was shampooing the carpet in the front lobby, Kamberos yelled at him. When Salmen arrived in the front lobby, Kamberos began screaming at Salmen and his wife. Wagner was the son of plaintiff’s cousin and was subsequently discharged “for drunkenness.”

Darlene Duncan, the site property manager of the building, testified that during early 1981 Kamberos made explicit critical comments about the quality of Salmen’s work. Linda Nowak, another unit owner, testified that she attended board of directors’ meetings and that Kamberos was the only person that brought complaints about Salmen to the board. Anna Salmen, the plaintiff’s wife, testified in substance the same as Peco raro and Wagner.

Sid Woods was a member of the board of directors for the building. In June and July of 1981 he received a series of letters from the defendant, parts of which contained complaints about the plaintiff. The board of directors voted at the July 16, 1981, meeting to pay the plaintiff’s legal fees for defense of the criminal battery charge brought by the defendant. The money for the plaintiff’s legal fees came from the condominium association, which is made up of the unit owners. The defendant was a unit owner, the plaintiff was not. Woods also testified in rebuttal that he was acquainted with the defendant’s reputation in the community and among her neighbors and other people for truthfulness; her reputation was that she was untruthful.

Kamberos testified that after the plaintiff struck her on June 15, 1981, she was angered, afraid, frustrated and offended that the plaintiff had struck her. On June 18, 1981, she wrote a three-page letter to Ernest Katz, president of the property management company; the letter was copied to the board of directors of the building and complained about the plaintiff not doing his job in other matters. In that letter she never mentioned that Salmen had struck her three days earlier. She wrote two other letters to the board of directors in July of 1981, both of which contained complaints about the plaintiff, but neither mentioned that he had struck her.

Erica Salmen is the plaintiff’s daughter and was 10 years old in 1981. She testified that on or about March 25, 1981, and for two to three weeks thereafter, Kamberos told her several times on Erica’s way home from school that the defendant would put her father in jail. She said that if somebody else was present Kamberos said nothing and would just walk by her. Kamberos testified that she did not know Erica.

The defendant testified in her own behalf and said that Pecoraro lied in the entire testimony he gave at the plaintiff’s criminal trial for assault and that he was a perjurer. She also told the jury that as of the time of trial in this case she was still afraid that the plaintiff would murder her. Before the trial, which took place in 1988, she had not seen the plaintiff since 1982. She testified that she was so afraid that the plaintiff was going to kill her that she told Kromelow right

after the March 23, 1981, incident that the plaintiff had threatened to kill her.

Theodore Kromelow managed and partially owned the building at the time of the occurrences in issue but did not own or manage it at the time of trial. He knew both the plaintiff and the defendant. Salmen had worked for Kromelow as the head janitor. Kromelow testified that at no time after March 23, 1981, did the defendant tell him that she was afraid of the plaintiff or that the plaintiff had assaulted and threatened her.

We do not agree with the defendant’s first claim that the findings in favor of the plaintiff are against the manifest weight of the evidence. This case presents a simple question of credibility. The defendant’s entire argument is based on the assumption that she was telling the truth. That is an assumption that we cannot accept. Whether the defendant had probable cause to bring criminal charges against the plaintiff was a question of fact for the jury. (Mack v. First Security Bank (1987), 158 Ill. App. 3d 497, 511 N.E.2d 714.) It is inescapable that the jury chose not to believe the defendant. We judge that the jury’s determination is not against the manifest weight of the evidence.

The defendant’s next claim is that the evidence failed to establish malice as a matter of law. Malice is defined as the initiation of a prosecution for any reason other than to bring a party to justice. (Mack, 158 Ill. App. 3d at 501, 511 N.E.2d at 714.) Lack of probable cause does not itself establish malice, but the trier of fact may infer malice from lack of probable cause if there is no other credible evidence which refutes that inference. (Frye v. O’Neill (1988), 166 Ill. App. 3d 963, 977, 520 N.E.2d 1233, 1241-42, quoting Harpham v. Whitney (1875), 77 Ill. 32.) We judge that the jury’s determination that Kamberos acted without probable cause justified its inference that she acted with malice under the circumstances present here. In sum, we conclude that the jury’s findings of lack of probable cause and malice are not against the manifest weight of the evidence.

The defendant next maintains that the judge committed reversible error by preventing her from introducing evidence of the conversation she had with her lawyer before she signed the criminal complaints against the plaintiff.

After the defendant had testified for the second time, the plaintiff’s attorney made an oral motion in limine seeking to prevent the defendant’s attorney from testifying. The judge ruled that the attorney could testify but limited the testimony to the fact that the attorney was consulted by the defendant and that afterward she went to the police station. The judge stated that ’’[the attorney’s] opinion as to whether or not there was probable cause *** is really irrelevant because his advice would be predicated on what she told him.” After the judge’s ruling the defendant’s attorney asked, “So you will not allow him to testify as to what his recommendations were?” The judge answered that he would not allow him to so testify.

The defendant’s attorney was asked whether he had conversations with the defendant after the March 23 and July 15 incidents and what he advised her. In regard to both dates, he testified that he did have a conversation with her and that he subsequently advised her to file a complaint with the police. Therefore, it is clear that the defendant was able to establish what her attorney’s recommendation was, and it is also clear that the proof elicited violated the judge’s order on the motion in limine. The plaintiff’s attorney made no objection to the testimony that the plaintiff’s attorney recommended that she sign criminal complaints. When the defendant’s attorney sought to bring out what the defendant told the attorney and what he told her, the judge sustained the plaintiff’s attorney’s objection. The issue becomes whether the testimony that the attorney spoke to the defendant and after speaking to her recommended that she sign a complaint is sufficient. We conclude that it was not.

Reliance on the advice of an attorney is a defense to a claim of malicious prosecution. (Pratt v. Kilborn Motors, Inc. (1977), 48 Ill. App. 3d 932, 363 N.E.2d 452.) However, the fact that a party has acted in reliance on an attorney’s advice is not a complete bar to an action for malicious prosecution. (Hulcher v. Archer Daniels Midland Co. (1980), 88 Ill. App. 3d 1, 409 N.E.2d 412.) In Pratt, the court quoted from Brown v. Tucker (1918), 214 Ill. App. 162, 164:

“ ‘When a prosecuting witness before beginning a case goes to a competent attorney and discloses to him in good faith all the facts and information he has as to a supposed offense as well as the source of his information, and then acts on the advice of such attorney and starts a criminal prosecution, he will be considered as having had probable cause for such prosecution, even if afterwards the party charged is found to be not guilty of the offense charged.’ ” (Pratt, 48 Ill. App. 3d at 934-35.)

The supreme court has spoken thus in Freides v. Sani-Mode Manufacturing Co. (1965), 33 Ill. 2d 291, 296, 211 N.E.2d 286, 289:

“While advice of counsel is a defense to a suit for malicious prosecution, its validity depends upon the facts and circumstances communicated by the defendant to his attorney, whose advice must be sought, given and acted upon in good faith. Whether these elements are present is a jury question. [Citations.]” (Emphasis added.)

If disclosure of all the facts and circumstances is necessary to establish the defense of advice of counsel, it necessarily follows that the fact finder must be aware of what facts and circumstances were disclosed to the attorney.

Although we have found no Illinois case dealing directly with the issue of admissibility of the contents of the conversation between a defendant in a malicious prosecution case and an attorney whose advice he sought, our research discloses authority from other jurisdictions. In Tate v. Connel (1966), 3 Ariz. App. 534, 416 P.2d 213, the court held that the communications between the defendant in a malicious prosecution action and the attorney who advised the criminal prosecution are admitted, not as exceptions to the hearsay rule, but because the words communicated are not offered for the truth thereof but rather to establish the good faith of the person bringing the prior criminal action. In Morin v. Moreau (1914), 112 Me. 471, 92 A. 527, the supreme court of Maine held that the details of a statement made by the defendant to his counsel before instituting the prosecution are not only admissible but “indispensable” to establish an advice-of-counsel defense. 112 Me. at 473, 92 A. at 528.

Both Tate and Morin were relied on, in part, for the following expression of the law:

“One who, in order to show the existence of probable cause for the prosecution complained of, relies on the advice of a licensed attorney, given after full and truthful disclosure of the facts, may prove the details of the statement he made to his counsel before instituting the prosecution. In fact, the communications with the attorney must be proved, and then it is for the jury to say whether the statement was true and full. The defendant cannot be permitted to draw that inference for the jury by testifying in general language that he did make a full statement or that he told all the circumstances; such testimony is insufficient.” (Emphasis added.) 52 Am. Jur. 2d Malicious Prosecution §174, at 294 (1970).)

In Cohen v. Cook (1969), 62 Tenn. App. 292, 462 S.W.2d 592, aff’d (1970), 224 Tenn. 729, 462 S.W.2d 499, the court held that the testimony of a witness was not sufficient to establish probable cause because the witness, who was a judge, did not testify to exactly what the defendant had told him before he issued the warrant. It thus appears, ironically, that if the defendant had herself restricted her proof to the general terms that she had consulted with an attorney and he advised her to sign the complaint, that testimony would not have been sufficient to establish the defense of advice-of-counsel. We conclude, therefore, that the judge erred in preventing the defendant’s attorney from testifying to what the defendant had told him before he advised her to sign a criminal complaint.

We do not find persuasive the plaintiff’s argument that no error occurred because the defendant herself did not seek to testify as to the conversation. It is understandable why she sought to prove the conversation through the testimony of her attorney. She was repeatedly characterized by the plaintiff’s attorney as a “liar” in his opening statement and in his closing argument. If she had established the conversation through her testimony alone (assuming she would have been permitted to do so), we feel certain that the plaintiff’s attorney would have called the jury’s attention to the absence of the testimony of her potentially corroborating attorney.

The defendant next assigns as error the conduct of the plaintiff’s attorney; she maintains that the cumulative effect of specific instances of improper conduct amounted to prejudicial error requiring reversal. During the examination of the defendant as an adverse witness by the plaintiff’s attorney, the following exchange took place:

“Q. After all of the evidence, Ms. Kamberos, the judge [in the criminal trial] didn’t believe you beyond a reasonable doubt, did he?
[DEFENDANT’S ATTORNEY]: Objection.
THE COURT: Sustained as to the form of the question. Counsel’s [sic] admonished.
[PLAINTIFF’S ATTORNEY]: Ms. Kamberos, after the trial John Salmen was found innocent, wasn’t he?
THE COURT: Counsel, that’s an improper form of question.
[PLAINTIFF’S ATTORNEY]: I’ll rephrase it.
THE COURT: Don’t do it again. * * *
A. Yes, the judge entered a decision, not guilty.
[PLAINTIFF’S ATTORNEY]: Not guilty the judge said? Is that your answer, Ms. Kamberos?
A. I can’t remember exactly what he said, but ***
Q. He found John not guilty? Well, you’re a lawyer, aren’t you?
THE COURT: Just one moment. No colloquy with the witness, please. Just ask questions. If you have an answer, ask another question.
[PLAINTIFF’S ATTORNEY]: I didn’t hear her response, judge.
THE COURT: You heard it. Ask another question.”

The judge later denied the defendant’s motion for a mistrial but indicated that if counsel persisted in improper questioning the judge would consider imposing sanctions.

During the direct examination of Linda Nowak, who also owned a unit in the building, the following exchange took place:

“[PLAINTIFF’S ATTORNEY]: Do you recall at that time learning about certain conflicts between Ms. Kamberos and Mr. Salmen?
A. Yes.
Q. What specifically do you recall learning?
A. At the time there was — -I know charges had been brought against John Salmen, and at the time also I know that the Board members felt that John was being unduly harassed.
[DEFENDANT’S ATTORNEY]: Objection as to what somebody else felt, judge. That’s not relevant material, and I have a motion.
THE COURT: Sustained. * * *
[PLAINTIFF’S ATTORNEY]: Do you recall attending a meeting [of the board of directors of the building] in March of 1981?
A. Yes.
Q. Do you recall some of the events that you heard Ms. Kamberos discuss at that meeting?
A. Yes.
Q. What were some of those things you heard Ms. Kamberos do or say at those meetings?
A. There was direction towards complaints towards John Salmen.
Q. And were those complaints reviewed by the Board?
A. Yes.
Q. And what was the Board’s action after hearing those complaints?
[DEFENDANT’S ATTORNEY]: I object to what’s [sic] the Board’s actions. The only issue here is what was said at the meeting.
THE COURT: Sustained.
[PLAINTIFF’S ATTORNEY]: Judge, I believe-
THE COURT: Ask another question.
Q. After hearing the Board discuss the issues, did you note that the Board ever substantiated any of the complaints that were brought by Ms. Kamberos?
[DEFENDANT’S ATTORNEY]: Objection.
THE COURT: Sustained.”

At that point the defendant’s attorney made another motion for a mistrial, which was denied. In denying the motion the judge made this observation to the plaintiff’s attorney:

“All you’re introducing is the result of the deliberations of a group called the Board? I don’t think that is relevant here. Let’s go on.”

In spite of that clear ruling by the judge, the plaintiff’s attorney persisted in asking Nowak the following question:

“Q. Ms. Nowak, were you ever able personally to substantiate any of the claims that Ms. Kamberos made about John Salmen?”

The judge again sustained the defendant’s attorney’s objection and instructed the jury to disregard the question.

After Nowak testified, the plaintiff called Sid Woods, a former member of the board of directors, and the following occurred:

“Q. And at that time [April 6, 1981] did the Board of Directors take a vote whether to support John Salmen or Constance Kamberos?
[DEFENDANT’S ATTORNEY]: Objection.
THE COURT: Sustained. See you in side bar.”

After a discussion out of the presence of the jury, the judge again said that the objection was sustained and told the plaintiff’s attorney that the determination of the board as to the merits of the claim between Kamberos and Salmen was irrelevant. Despite the judge’s ruling the plaintiff’s attorney persisted in the following exchange:

“Q. Mr. Woods, between June 15, 1981, and July 13, 1981, did you receive a series of letters from Constance Kamberos?
A. Yes, I did.
Q. And did those letters consist of complaints about the janitors?”

An objection to that question was sustained. Finally the plaintiff’s attorney asked the following question:

“Q. As a Board member, Mr. Woods, were you able to substantiate a complaint of that letter?”

Again an objection was sustained.

In the face of all that, the plaintiff’s attorney still brought out from Woods that Woods was aware that Kamberos had Salmen charged with the crime of battery on or about June 30, 1981, that the board of directors held a meeting on or about July 16, 1981, that the board voted to pay the plaintiff’s legal fees and that the legal fees came from the association which consisted of the unit owners and included the plaintiff. The judge permitted the plaintiff’s attorney to establish that part of Kamberos’ money went to pay for the plaintiff’s legal fees.

Even in this court, the plaintiff argues that we should conclude that the board did not believe Kamberos and that we should consider the board’s disbelief in our resolution of the question of the sufficiency of the evidence. We did not consider the board’s disbelief in a resolution of the question, and we believe that the objections were properly sustained. Moreover, we do not believe that the jury should have been permitted to hear the board voted to pay the plaintiff’s legal fees and, especially, it should not have been permitted to hear that the fees were paid, in part, by the defendant.

It is the plaintiff’s principal position that the court’s sustaining of the objections and instructing the jury to disregard cured any prejudice to the defendant. In support of his position he cites three cases: Maciukevicius v. Zagorski (1988), 172 Ill. App. 3d 303, 526 N.E.2d 569; Webb v. Angell (1987), 155 Ill. App. 3d 848, 508 N.E.2d 508; and Bresland v. Ideal Roller & Graphics Co. (1986), 150 Ill. App. 3d 445, 501 N.E.2d 830.

We are unable to determine from the Bresland opinion what questions were asked to which objections were sustained nor does it appear that the plaintiff in Bresland repeatedly persisted in asking improper questions as was done here. Similarly, in Maciukevicius, we are unable to determine what questions were improperly asked and how often. We note that the court made the following observation:

“We have reviewed the challenged questions and objections. Without expressing an opinion as to the correctness of the court’s rulings on specific objections, we find that the line of questioning (primarily concerning the medical testimony) was not so far out of line as to constitute improper conduct on the part of plaintiff’s counsel.” (172 Ill. App. 3d at 310.)

In Webb, the court found that some of the assignments of error had been waived for failure to object and reduced its consideration of error to three instances. The court noted that there were two objections to the defense attorney’s conduct during the examination of the plaintiff’s expert but held that it would not consider those objections since the plaintiff had not properly preserved the question for review. The court did find that one question was improper but, since an objection to the question was immediately sustained and the jury instructed to disregard the comment, any prejudice from that specific remark was cured.

All of the cases cited by the plaintiff are factually wide of the mark in this case. None of them displays the persistent and insistent improper course of conduct in the face of adverse rulings by the trial judge that this case does. This practice has been criticized and held to be reversible error. See Geisberger v. Quincy (1972), 3 Ill. App. 3d 437, 278 N.E.2d 404.

We are reluctant to set aside a jury verdict. It is our duty, however, to insure that parties receive a fair trial, and, if we conclude that errors might have affected the jury verdict, it is our obligation to set the verdict aside. As we have previously noted, this case depended on the jury’s evaluation of the credibility of the parties. Also as previously noted, the plaintiff's attorney repeatedly characterized the plaintiff as a “liar.” His improper questions were designed to show the jury that the judges who heard the criminal complaints against Salmen and the members of the board of directors had also determined that the defendant was a “liar.” We conclude that the cumulative errors consisting of the improper restriction of the defendant’s proof and the plaintiff’s attorney’s improper conduct deprived the defendant of a fair trial and might have affected the verdict. For these reasons, the judgment of the circuit court is reversed and the cause is remanded for a new trial. Since no appeal was taken from the judgment in favor of the plaintiff on the defendant’s counterclaim, this cause is remanded for a new trial on plaintiff’s complaint only.

Reversed and remanded.

McNAMARA and RAKOWSKI, JJ., concur.


author: PRESIDING JUSTICE LaPORTA JUSTICE RAKOWSKI,

text:
    SCOTT MUNROE, Plaintiff-Appellee, v. BROWER REALTY AND MANAGEMENT COMPANY, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—3450
    Opinion filed November 26, 1990.

      RAKOWSKI, J., dissenting.
    James A. Blazina, Chartered, of Chicago (James A. Blazina and Christopher Jacobs, of counsel), for appellant.
    No brief filed for appellee.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff, Scott Munroe, brought an action against defendant, Brower Realty & Management Company, to recover his security deposit pursuant to the terms of a lease entered into between the two parties. On appeal, defendant contends that the trial court erred in awarding plaintiff his security deposit, plus earned interest, and by imposing a penalty for defendant’s willful retention of the security deposit and interest.

Although no appellee’s brief has been filed, we will address the merits of this case. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

On March 1, 1987, plaintiff and defendant executed a lease whereby plaintiff agreed to rent an apartment from defendant at 2306 West Nichols Road in Arlington Heights, Illinois, for a term beginning March 1, 1987, and ending on August 31, 1987. Pursuant to the lease agreement, plaintiff paid a security deposit to defendant in the amount of $610 (a $585 damage deposit plus a $25 key deposit). On August 31, 1987, plaintiff and defendant executed a second lease agreement whereby plaintiff agreed to rent an apartment unit located at 2208 West Nichols in Arlington Heights for a period beginning September 1, 1987, and ending August 31,1988.

At trial, plaintiff testified that in September 1987 he received a check from defendant in the amount of $517.60 representing the return of his security deposit paid under the first lease, less $92.40, the cost incurred by defendant for cleaning the carpeting in the unit. However, when plaintiff attempted to negotiate the check, he learned that payment on the check had been stopped.

Plaintiff also testified that he and defendant had a verbal agreement that the security deposit he had paid under the first lease would be automatically transferred and applied as the security deposit due under the second lease. Plaintiff then testified that in January 1988 defendant successfully brought a forcible entry and detainer proceeding against him after which plaintiff vacated the premises and paid no rent for the remaining months covered by the lease.

Thomas Frawley, vice-president of defendant, testified that the corporation was retained by various owners to manage their respective properties. Frawley stated further that the corporation acted as agent on behalf of the owners. In that capacity, defendant earned commissions for leasing units for the owners, was paid for handling daily collections, made mortgage payments, remitted assessment payments, paid utility bills, prepared monthly reports to the owners reflecting cash flow and profits from the properties, and remitted to the owners the profits earned.

According to Frawley, the complex in which plaintiff rented the two units consisted of 72 Six-flat buildings. Defendant managed 13 of those buildings, totaling 78 separate units. The investment group which owned the building in which plaintiff rented his first apartment was a partnership of 8 to 10 individuals. An entirely different limited partnership owned the building in which plaintiff rented the second apartment. Each of these partnerships owned two six-flat buildings, or 12 separate rental units, within the complex. Frawley did not believe that any of the individual investors belonged to both partnerships.

Frawley stated that after several unsuccessful attempts to obtain the security deposit for the second apartment from plaintiff, he authorized the stop payment order on the check previously issued to plaintiff and then applied that amount toward the security deposit due under the terms of the second lease.

In rendering judgment for plaintiff, the trial court made the following findings: (1) that the five-day notice given in defendant’s forcible entry and detainer action provided that the lease would be terminated if rental payments were not made; (2) that plaintiff did not make payment and was subsequently evicted (although the record shows' that plaintiff voluntarily vacated the premises), resulting in termination of the lease; (3) that although a lessee may remain liable for all future rents due under the terms of the lease, notwithstanding the lessor’s reentry, where a lease expressly so provides, the lease in the instant case did not contain such a provision; (4) that defendant made an election of remedies to terminate the lease and could not justify its refusal to return plaintiff’s security deposit on the ground that rent remained owing under the lease at the time of plaintiff’s eviction; (5) that plaintiff paid the judgment on defendant’s forcible entry and detainer action, and such judgment was not satisfied by applying the security deposit; (6) that the statute requiring a lessor to pay interest on a security deposit applied in the instant case because defendant was the lessor of the property even though it was not the owner of the property (Ill. Rev. Stat. 1987, ch. 80, par. 121); and (7) that the statute requiring the lessor to pay the lessee’s attorney fees as a penalty for refusing to pay such interest applied in the present case because defendant willfully failed to pay such interest and to return plaintiff’s security deposit (Ill. Rev. Stat. 1987, ch. 80, par. 122).

Defendant first argues that plaintiff was not entitled to the return of his security deposit because he failed to pay rent from February through August 1988. Defendant reasons that it can proceed under the terms of the lease despite the forcible entry and detainer proceeding because the lease so provided. We note that the record does not contain a copy of the lease that is the subject of this action. However, in rendering judgment, the trial court made the following findings concerning the lease:

“However, the Court can find no such specific provision in the lease dated August 22, 1987. Paragraph 13 of the lease provides if there is a default, lessor may, and at his election, declare the lease ended, re-enter without prejudice to any remedies which otherwise might be used for arrears of rent. Note the term is arrears of rent, there is no language talking about future rent, only arrears.
The Court interprets that to mean the arrears of the present time up until the time that the defendant vacates — that the tenant vacates.
Paragraph 14 of the same lease says that the covenant to pay rent is independent of all other covenants.
Paragraph 15 of this lease allows the lessor to collect rents after service of any notice. Again the Court reiterates that the Court can find no such language as set forth in the [Lake Shore] Management case and in the Wysocki case.”

The burden rests on defendant, as appellant, to provide a sufficient record to support the claim of error, and in the absence of such a record, the reviewing court will presume that the trial court’s order was in conformity with established legal principles and had a sufficient factual basis. (Frisch Contracting Service Co. v. Personnel Protection, Inc. (1987), 158 Ill. App. 3d 218, 511 N.E.2d 831.) Any doubts arising from the completeness of the record are resolved against the appellant. (Frisch Contracting Service Co., 158 Ill. App. 3d at 221, 511 N.E.2d at 833.) In the instant case, defendant has failed to provide a copy of the lease, and we must presume, therefore, that the trial court’s rendition of the particular provisions are accurate. Moreover, we note that defendant does not dispute the trial court’s version of the provisions as set forth in the above-quoted statement by the court. Rather, defendant argues that the court’s interpretation was incorrect because the court failed to recognize another provision of the lease which provided that the lessor’s rights and remedies under the lease were cumulative.

Defendant, in its brief, sets out the following provision as paragraph 17 of the lease:

“The rights and remedies of lessor under this lease are cumulative. The exercise or use of any one or more thereof shall not bar lessor from exercise or use of any other right or remedy provided herein or otherwise provided by law nor shall exercise nor use of any right or remedy by lessor waive any other right or remedy.”

Assuming, arguendo, that the lease contained this provision, that fact does not make the trial court’s finding erroneous because the provision, as set forth by defendant, does not expressly provide that plaintiff’s duty to pay rent survives his eviction pursuant to a forcible entry and detainer proceeding.

Defendant cites Lake Shore Management Co. v. Blum (1968), 92 Ill. App. 2d 47, 235 N.E.2d 366, and Diplomat Motel, Inc. v. Pla teau, Inc. (1967), 80 Ill. App. 2d 352, 225 N.E.2d 139 (abstract of opinion), as authority for the claim that it was justified in keeping plaintiff’s security deposit to offset rent due following plaintiff’s surrender of possession of the premises. We find, however, that defendant’s reliance on these cases is misplaced. These cases involved lease terms which specifically provided that the tenant was obligated to pay all of the rent due under the lease despite service of a five-day notice. The lease in the Lake Shore Management case also contained a confession of judgment by the tenant for all of the rent due for the entire lease term. The lease at issue here did not contain any similar provisions. Consequently, we find that the cases relied upon by defendant are factually distinguishable from the instant case and are not controlling.

When plaintiff failed to pay rent, defendant successfully brought a forcible entry and detainer proceeding against him and recovered a judgment for the amount of rent owed by plaintiff. Plaintiff then satisfied this judgment. The forcible entry and detainer proceeding terminated the lease and, absent a lease provision to the contrary, simultaneously terminated plaintiff’s obligations under the lease (Broniewicz v. Wysocki (1940), 306 Ill. App. 187, 28 N.E.2d 283). Consequently, defendant had no right to retain plaintiff’s security deposit, and the trial court’s order finding that plaintiff was entitled to recover the security deposit was proper.

Defendant also contends that the trial court erred in finding that plaintiff was entitled to receive interest on his security deposit from defendant. Based upon the facts presented in the record before us, we must agree. The pivotal element here is the fact that the property owner did not own 25 or more units, but the defendant did manage more than 25 units.

In Illinois, a lessor of residential property, containing 25 or more units, who receives a security deposit from a lessee, must pay interest to the lessee computed from the date of the deposit at a rate of 5% per year on any such deposit held by the lessor for more than six months. (Ill. Rev. Stat. 1987, ch. 80, par. 121.) We note that this is a penal statute which must be strictly construed and will not be extended to embrace matters beyond its terms. Acme Fireworks Corp. v. Bibb (1955), 6 Ill. 2d 112, 119, 126 N.E.2d 688, 691-92; Molex, Inc. v. Pollution Control Board (1973), 9 Ill. App. 3d 1032, 1033, 293 N.E.2d 731, 732.

While it has long béen held that a lease encompasses contractual rights and obligations, it is fundamentally a conveyance of an interest in land for a determinate period. A lessor is a person who conveys such a possessory property interest to another. (H. Tiffany, The Law of Real Property §§37, 39, at 96-100 (2d ed. 1920).) A “lessor” is defined by Black’s Law Dictionary 812 (5th ed. 1979) as “[a person] who grants a lease. *** In the case of real estate, the lessor is also known as the landlord.” A “landlord” is defined in Black’s Law Dictionary 790 (5th ed. 1979) as “[a person] who, being the owner of an estate in land, or a rental property, has leased it to another person, called the ‘tenant.’ ”

In the conveyance of property, one can only transfer what he has because a person cannot grant what he does not have or grant to another rights in the property of a stranger which he does not himself possess. (73 C.J.S. Property §32, at 227 (1983).) Because a lease is a conveyance of a possessory interest in land, it can be granted only by one who has such an interest and cannot be made by a party who has no possessory interest or right in the property.

The signatures alone cannot be considered in determining who are parties to a lease. Rules of construction require that where the identity of the parties to the contract is not clear, all of the facts and circumstances surrounding the making of the contract may be considered to determine who are the actual parties. M & J Diesel Locomotive Filter Corp. v. Nettleton (1965), 56 Ill. App. 2d 146, 150, 205 N.E.2d 659, 661; Midwest Grocery Co. v. Danno (1961), 29 Ill. App. 2d 118,123-24, 172 N.E.2d 648, 651.

In the instant case, the defendant was merely a management company employed by the owner to attend to the daily supervision of the property. The defendant had no possessory interest in the property and, therefore, could not convey what it did not have. Although defendant executed the written lease for the property, it could only do so on behalf of the owner and by virtue of the authority extended by the owner. (2A C.J.S. Agency §143, at 763-65 (1983).) Consequently, the defendant could not have been the lessor of the property in this case, and application of the statute requiring the payment of interest on plaintiff’s security deposit was improper.

Moreover, even if we were to determine that defendant could be obligated to pay interest on security deposits, this statute would not apply to defendant under the facts of this case. The record reveals that although defendant managed 78 separate units, these units were owned by many different and distinct owners. Each of the partnerships from which plaintiff rented apartments owned two six-flat buildings, or 12 separate rental units. Neither of these partnerships owned 25 rental units, and we do not believe that these different and distinct ownership entities can be combined in order to satisfy the statutory requirement that the lessor be a lessor of 25 or more residential units.

In construing statutes, the role of the courts is to ascertain and give effect to the intent of the legislature. (Methodist Medical Center v. Taylor (1986), 140 Ill. App. 3d 713, 489 N.E.2d 351; Indian Valley Golf Club, Inc. v. Village of Long Grove (1985), 135 Ill. App. 3d 543, 481 N.E.2d 277.) The plain meaning of the language used by the legislature is the safest guide in construing any act, and the court has no right to read into the statute words that are not found therein either by express inclusion or by fair implication. (Indian Valley Golf Club, Inc., 135 Ill. App. 3d 543, 481 N.E.2d 277; Illinois Publishing & Printing Co. v. Industrial Comm’n (1921), 299 Ill. 189, 132 N.E. 511.) The words of a statute must be read in light of the purposes to be served, and those words must be read to reach a commonsense result. People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479, 389 N.E.2d 540.

The statute here in question is intended to benefit those who rent from large property owners, and the plain meaning of the statute requires the lessors of 25 or more residential units to pay interest on security deposits. We believe a commonsense definition of “lessor” as used in this statute must refer to those persons who receive and control the rents and profits from the property. If the statute applies only to persons who execute written leases, large property owners could easily manipulate their holdings to defeat the purposes of the statute. Such owners could retain several different management companies, each managing fewer than 25 units. By having the managers sign the leases as lessors, the property owners would be able to circumvent their statutory obligation to pay interest on security deposits.

As courts have done in other branches of the law, we look to control as the best indicia of true ownership. (See IMM Acceptance Corp. v. First National Bank & Trust Co. (1986), 148 Ill. App. 3d 949, 499 N.E.2d 1012 (beneficiary of Illinois land trust has an interest in property for purposes of Statute of Frauds); People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479, 389 N.E.2d 540 (beneficiary of Illinois land trust is the owner of the real estate for purposes of taxation); Department of Conservation v. Franzen (1976), 43 Ill. App. 3d 374, 356 N.E.2d 1245 (beneficiary of Illinois land trust has an interest in property for purposes of filing a cross-petition in an eminent domain proceeding).) We find, therefore, that courts must determine the true ownership of the property before deciding whether the statute is applicable.

Although we have found no cases which have interpreted the language in this statute as it is applied to property managers, we note that in Gittleman v. Create, Inc. (1989), 189 Ill. App. 3d 199, 545 N.E.2d 237, the court’s decision implicitly held that the defendant management company was obligated to pay interest on the security deposit. The issue presented in the case at bar, however, was not raised in Gittleman. That case did not consider, analyze, or discuss whether the management company was the lessor of the property. Consequently, we do not believe that Gittleman is controlling in the case at bar.

Because we have determined that defendant was not obligated to pay interest on plaintiff’s security deposit, we necessarily hold that the trial court erred in finding that defendant was liable for the statutory penalty imposed for a willful failure to pay interest on the security deposit (Ill. Rev. Stat. 1987, ch. 80, par. 122).

For the foregoing reasons, that portion of the trial court’s order which found that the plaintiff was entitled to the return of his security deposit is affirmed, and that portion of the order which found that defendant was liable for interest on the security deposit and for the statutory penalty is reversed.

Affirmed in part, reversed in part.

EGAN, J., concurs.

JUSTICE RAKOWSKI,

dissenting:

I do not agree that the statute which requires the lessors of residential real estate to pay interest on security deposits applies only if the lessor happens to be the owner of the property. Neither the cases cited by the majority nor the purpose of the statute supports limiting the protection of the statute to renters only if their leases are signed by the property owner or his agent rather than by a real estate management company.

Defendant Brower Realty managed rental units for different owners. The complex where plaintiff rented two units had 72 buildings, each with six units. While several different limited partnerships owned the various buildings, Brower managed 14 of the buildings for a total of 84 units. Brower leased these units and received a commission for doing so.

The question then is whether this activity made Brower “a lessor of residential real property, containing 25 or more units.” (Ill. Rev. Stat. 1987, ch. 80, par. 121.) The majority concludes that management companies are not included in the term “lessor.” I reject this narrow view. A broader interpretation which includes management companies is required by legislative history, the one case on point in Illinois and ordinary understanding of the term “lessor.”

First, the legislature enacted this law as a form of protection for renters in buildings of 25 units or more without limiting it to situations where the owner or his agent signed the lease. During the Illinois House debates, Representative Merlo, the bill’s sponsor, stated: “[I]t was pointed out to me that the average rent is three hundred, so it would mean that the landlord would be liable or the management firm would be liable for fifteen dollars.” (Emphasis added.) (79th Ill. Gen. Assem., House Proceedings, August 1976, at 13 (statement of Representative Merlo).) The discussion continued about enforcement problems for such a small amount of money. The discussants simply accepted Merlo’s statement that management firms could be lessors and then went on to debate penalty provisions which would make enforcement economically feasible for tenants.

Second, the appellate court cited the legislative debate and used this definition in Gittleman v. Create, Inc. (1989), 189 Ill. App. 3d 199, 203-04, 545 N.E.2d 237. In that case, the court ruled for two tenant plaintiffs against the defendant, “an Illinois corporation engaged in the business of managing residential apartment buildings.” The issue on appeal was statutory penalties against landlords and no one argued the application of the statute to a management company. Nonetheless, the court cited the debate and applied the law, penalties included, to the defendant management company.

Finally, “[w]here the terms of a statute are not defined by the legislature, courts will assume they were intended to have their ordinary and popularly understood meanings, unless to do so would defeat the perceived legislative purpose.” (People v. Fink (1982), 91 Ill. 2d 237, 240, 437 N.E.2d 623.) Black’s Law Dictionary 812 (5th ed. 1979) defines “lessor” as one who rents property to another. The American Heritage Dictionary 725 (1985) defines “lessor” as “one who lets property under a lease.” Thus, absent any other requirement for statutory construction, the court should define lessor in ordinary language simply as someone who lets property to a renter, regardless of whether this person owns the property or is a company which manages the rental business of the property. Here, the defendant executed a written lease naming itself as the lessor. Since the statute provides protection for renters against lessors, it follows that, absent any other indication, the definition of “lessors” commonly understood by renters should be the one used.

The majority expresses concern that large property owners could manipulate their holdings to avoid falling under the statute by retaining numerous management companies. Yet, no consideration is given to the position individuals such as Munroe find themselves in as a result of the majority’s holding. When a renter executes a lease in these situations, he generally deals only with the management company and doubtless does not even know the identity of the building’s owner. While the majority analyzes the role of the management company as an agent, no attention is paid to the ramifications of a management company’s failure to disclose the identity of its principal.

Under the majority view a plaintiff such as Munroe, who prevails against the management company to recover his security deposit, but is unsuccessful in recovering his statutorily entitled penalty from the very party which wrongfully withheld his security deposit, is now obligated to determine the identity of the owner, amend the complaint, issue summons and pursue this second party.

For these reasons, I believe that the term “lessor” applies to management companies as well as owners. Accordingly, I would affirm.