text:
      In re J.W., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Lisa Williams, Respondent-Appellant).
    First District (2nd Division)
    No. 1—87—2665
    Opinion filed August 29, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Karen E. Tietz, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund and Marilyn F. Schlesinger, Assistant State’s Attorneys, of counsel), for the People.
    Patrick T. Murphy, Public Guardian, of Chicago (Mary Burns, Assistant Public Guardian, of counsel), guardian ad litem.

   JUSTICE SCARIANO

delivered the opinion of the court:

Following a bench trial, respondent, J.’s mother, was found unfit, her parental rights were terminated and a guardian authorized to consent to adoption was appointed. She now appeals, raising the following issues: (1) whether she should be required to follow her various service plans when those service plans did not comply with statutory guidelines; (2) whether she was proved to be an unfit parent by clear and convincing evidence; and (3) whether the trial court improperly considered evidence relating to J.’s best interest in making his decision as to respondent’s unfitness.

J., born May 10, 1982, was first removed from respondent’s custody in July 1983, when he was 15 months old, after his mother beat him about the head. He was subsequently returned to respondent in May 1984. Shortly thereafter, respondent left J. at her mother’s home and, after she failed to call for him, respondent’s mother contacted the Department of Children and Family Services (hereinafter DCFS). On May 25, 1984, a petition for adjudication of wardship was filed, alleging that J. was neglected and abandoned due in part to the mental disability of his mother. After an adjudication of wardship, the Department of Children and Family Services (DCFS) placed J. with the Travis family in a foster home supervised by Central Baptist Family Services (Central Baptist). J. continues to live with the Travises. On January 28, 1985, the court entered a finding of neglect, on May 25, 1985, a petition to appoint a guardian with the right to place J. was granted, and on July 9, 1986, a petition to appoint a guardian with the right to consent to adoption was filed. A default judgment was entered against J.’s father, and the following evidence was presented at the hearing on the petition.

Michael Brady, a social worker with Central Baptist, testified that he first became involved with J. in October 1984, and worked on his case until May 1985. From June 1984 to August 1984 respondent’s “whereabouts were unknown.” Brady continued working with the service plan created by DCFS in June 1984, under which respondent was to work towards three goals: (1) engage in regular visitation; (2) establish a working relationship with her caseworker; and (3) participate in counseling at Greater Oak Lawn Mental Health Center. In December 1984 Brady established a new service plan, with the “overall goal to reunite mother with child.” Intermediate goals were to initiate regular visitation, to participate in counseling at Greater Oak Lawn Mental Health Center, to establish a relationship with the Central Baptist social worker, to work more cooperatively with Central Baptist, and to divulge her address so that Central Baptist could assess her current living situation. Brady- testified that the entire service plan was explained to respondent.

Respondent was to visit J. in Central Baptist’s offices “at least once a month,” in a room “conducive to interaction,” with a couch, toys, books and other activities. She made the five visits she scheduled from December 1984 through June 1985; however, Brady characterized the quality of her visits as “poor.” Rather than interacting with J., respondent spent much of the time talking with Brady about her own case. Brady would attempt to direct respondent’s attention to J., but respondent insisted upon talking with Brady. Brady also stated that he did not feel respondent had developed a working relationship with him, as representative of Central Baptist, because she would not reveal her address, and thus he had to rely on her phoning him to arrange a visit, and on a number of occasions she became “very angry and hostile on the phone,” used abusive language and hung up. Additionally, respondent did not participate in counseling, which was required because of a diagnosis that she “was schizophrenic, undifferentiated type, with strong paranoid features.”

On cross-examination, Brady stated that respondent was very interested in seeing her clinical evaluation, but he informed her that it was confidential and he could not share it with her. When talking with respondent about the importance of counseling, “she would become very defiant, and she would frequently say T am not crazy.’ ” With regard to visitation, Brady testified that he attempted to establish a regular visitation schedule, but because he had to wait for respondent to contact him, visitation remained on a monthly basis.

Tracey Livingston, a foster care worker at Central Baptist, worked with J.’s case from June 1985 to June 1986. After six-month case reviews, she devised two service plans for respondent, with the goals of maintaining regular visitation with J., engaging in therapy on a regular basis, maintaining adequate housing and disclosing her address to Central Baptist. Respondent made nine visits during the period June 1985 to June 1986, the general quality of which Livingston described as poor. According to Livingston, respondent did not know how to interact appropriately with J., and she was more interested in talking with Livingston about her own case. Livingston suggested that respondent arrive 30 minutes in advance of the scheduled visit, so that they could discuss her service plan and any other issues, after which respondent could then direct her full attention to J. when he arrived. But respondent did not follow through on this offer. Visits were often cancelled, because respondent would fail to call the day before to confirm that she was coming. At some point, respondent expressed a desire to visit twice a month, and Livingston agreed. Visits were never longer than an hour, however, because the visits “were pretty upsetting” to both respondent and J., and extending them would not have been in their best interest.

Livingston testified that respondent attended North Rogers Park Mental Health Center in December 1985 for an “intake,” but she attended only once, and her case was then closed. She initiated contact with Northtown Rogers Park in February 1986 and “attended sporadically” until May 1986, attending 7 out of 12 appointments. In May 1986, her contact left Northtown and, because there was no further contact from respondent, her case was closed. According to Livingston, respondent did not consistently participate in therapy, even though she attended appointments, because she was not actively taking part and working towards treatment goals. Livingston stated that respondent was “very preoccupied with seeing her psychological evaluation.” During this time, respondent continued to refuse to disclose her address.

Mary Wehrle, a clinical therapist at Northtown Rogers Park Mental Health Center, first came into contact with respondent on December 30, 1986. Respondent was to attend weekly sessions, which she did for five weeks. Wehrle encouraged respondent to attend parenting classes, as required in her service plan, but respondent refused, maintaining that she had no problem with her children. According to Wehrle, respondent had “a strong tendency to blame others for her problems.” On February 2, 1987, respondent informed Wehrle that she “wanted a therapist who would agree with her that the abuse and neglect charges were all lies.” Wehrle would not agree to this, and, as a consequence, they did not meet again until March 27, 1987, when Wehrle told respondent that she would have to attend four parenting classes before she could continue counseling. The reason Wehrle gave for this was that respondent “was not able to identify any material herself to work on regarding herself and her relationship with her son,” and that the classes “might enable her to understand the nature of the problem”; Wehrle also felt that, rather than continuing to discuss respondent’s denial, it was time to do something about it. Respondent refused to attend the classes. In Wehrle’s opinion, “there was [no] successful outcome in the therapy in terms of seeking the classes or making a plan to provide a structured home, or to addressing [respondent’s] basically emotional situation between herself and her child.”

According to Wehrle, a psychiatrist with Northtown rejected the diagnosis that respondent was a paranoid schizophrenic, saying there was no evidence of psychosis. Respondent informed Wehrle that she sought counseling because she had been told to do so.

Patricia Kraning, a social worker with Central Baptist, worked with respondent and J. from June 1986 until June 18, 1987, the date she testified at the hearing. Respondent had six visits with J. from June 1986 through December 1986 and eight from December 1986 to June 1987. Respondent was often late to these visits, and thus many of them were less than an hour in duration. Kraning also described the quality of the visits as poor. Respondent returned to counseling in December 1986, because the trial date for the termination proceedings was approaching, but she continued to refuse to attend parenting classes. In June 1987 respondent informed Kraning that she had been living with her mother since J. had been removed from her care and that she had refused to disclose her address because her mother was in the process of adopting respondent’s daughter, M., and that if DCFS knew that respondent was living there, M. would have been removed. The adoption was final in June 1987, so respondent no longer felt it necessary to keep her address a secret. Kraning testified that she did not feel respondent had made reasonable progress toward the return of J.

Leslie Travis, J.’s foster mother, testified that she has requested DCFS to have J. tested because of problems he has playing with other children. At the time the judge made his ruling, these test results were not finalized.

In her testimony, respondent denied abandoning J. and stated that she had left him with her mother while she went shopping and that she was on her way to pick him up when her mother called DCFS. She claimed that Northtown told her to stop coming to counseling because they “didn’t really like to get involved in court cases and stuff.” She did not attend parenting classes because she lacked carfare to get to them. She also claimed to have secured employment in a factory two days prior to testifying, and that J.’s father had not attended the hearing because it was “too hard for him emotionally.” Respondent disagreed with the testimony that the quality of her visits with J. was poor, saying that J. was confused and that she had done her best, given that there were other people in the room with them.

In granting the petition seeking termination of respondent’s parental rights and the appointment of a guardian with the right of consent to adoption, the trial court stated:

“As to mother in this case, Lisa Mary Williams, I find the evidence sufficient to clearly and convincingly establish parental unfitness, predicated on chapter 37, section 5 — 9 and chapter 40, section 40, paragraph 1501(d)(m), specifically that mother has failed to make reasonable efforts to correct the conditions which were the basis for the removal of the child from parents within 12 months after adjudication of neglect. And mother has failed to make reasonable progress towards the return of the child to parents within 12 months after adjudication of neglect.
I think it is important to indicate for the record and for the edification of the parent[,] mother’s behavior over the years can be characterized substantially as follows: Mother has failed to rectify her parental deficiencies which [led to] the child being removed some number of years ago. Mother has demonstrated a lack of cooperation with the agencies and with the social workers who sought to assist mother to regain custody of the minor. Mother has demonstrated irresponsible^] apathetic and irresolute behavior in doing what was required to regain custody of the minor. Mother has demonstrated a lack of commitment necessary to complete the terms of service plans which would lead to the reunification of mother with the minor respondent. Mother has demonstrated a general and conscious disregard of parental duties and obligations to the child. Mother has failed to give paramount consideration to the child’s well being. And mother has demonstrated over the years a satisfaction to allow the child to remain in a state of limbo; neither exerting the necessary efforts to regain custody of the child, nor wishing the minor to be adopted.
In short, I think mother’s actions have spoke[n] much more loudly than her words. Therefore, based upon the findings of unfitness as to both mother and father, at this time I find it is in the best interest of the minor and the' best interest of the community that all parental rights be terminated. And that will be the order.
I further find that it is in the best interest of the minor and the community that Gary T. Morgan be appointed guardian of the person of the minor respondent with the right of consent to the child’s adoption.”

Respondent now appeals from the granting of the petition, first arguing that she should not be required to follow her service plans because those plans did not comply with statutory guidelines, and that, because the State’s evidence of unfitness consisted solely of violations of these invalid plans, the finding of unfitness must be vacated. The guidelines provide in part as follows:

“(a) The Department recognizes that there is a strong correlation between regular parental visits and contacts with a child and the child’s discharge from placement service. Therefore, when a child is in placement and the permanency goal is return home, parent-child -visits, telephone calls at reasonable hours, and mail are encouraged unless they have been prohibited by court order. The responsible agency shall arrange for parent-child visits and shall advise parents that repeated failure to visit according to the visiting plan shall be considered a demonstration of a lack of parental concern for the child and may result in the Department seeking a termination of parental rights.
(b) When the permanency goal is to return home, a visiting plan shall:
* * *
(4) specify that parents shall be expected to visit weekly unless there is documentation to the contrary in the case/record;
(5) increase in length unless specific harm to the child is caused by the visits;
(6) specify visiting in the home of the child’s parents, if consistent with the safety and well-being of the child. When visits in the home of the child’s parents are not consistent with the child’s safety and well-being, visits shall be in the most homelike setting possible. Office visits are acceptable if structure is necessary to evaluate or protect the child; and
(7) specify the responsibilities of the Department, the purchase of service providers, the parents, and the child in regard to visitation.” 89 Ill. Adm. Code §305.7 (1985).

Respondent contends that she was not informed by each social worker that in order to regain custody of J., she had to cooperate with them; however, the record is clear that respondent was told of such requirement.

Respondent also complains that she was allowed only one visit per month, rather than weekly visits as provided for in the guidelines, that the visits were not increased in length, and that they were always in Central Baptist’s office. Respondent also relies on a recent settlement in a Federal lawsuit, Bates v. Johnson (N.D. Ill. April 3, 1986), No. 84 — C—10054, which, inter alia, requires caseworkers to attempt to resolve transportation problems which make it difficult for parents to visit their children. Respondent claims that her lack of money made it difficult for her to get to the visits on time and that the caseworkers made no arrangements to aid her with her transportation problems. She also complains that she was not told of her right to appeal the social workers’ decisions on visitation, as required by the settlement.

In response, the State argues that the issue is not reviewable, because respondent failed to bring her claims to DCFS for an administrative hearing. In addition, it notes that respondent never expressed dissatisfaction with the service plans when they were in effect, and it cites the testimony that because respondent would not reveal her address, the social workers had to wait for her to initiate contact and arrange visits, and that respondent did this monthly, at best. It further notes Brady’s testimony that respondent was to visit at least once a month, as well as the fact that when respondent expressed a desire for more frequent visits, the social workers readily agreed. With regard to respondent’s complaint that the visits were not lengthened in duration, it cites the testimony that respondent was often late for the visits, they were of poor quality, and thus it would not have been in anyone’s interest to lengthen them. Finally, the State notes that there could be no home visits, because respondent would not reveal her address, and that the room in which the visits were made was “conducive to interaction.” It further notes that there was testimony that respondent wanted the visits at Central Baptist’s offices.

Respondent next contends that the State failed to prove by clear and convincing evidence that she is an unfit parent. The State alleged that respondent was unfit in that she failed to make reasonable efforts to correct the conditions which were the basis for removal of the child or failed to make reasonable progress toward the return of the child within 12 months after the adjudication of wardship. Ill. Rev. Stat. 1985, ch. 40, par. 1501 — l(D)(m).

The first clause of that section addresses the parent’s failure to correct the conditions which were the basis of removal, in this case neglect and abandonment. Respondent contends that she made significant efforts to correct these conditions, claiming that she “consistently called and arranged visits and then attended them,” that she is currently employed, that she has a suitable living arrangement, and that she has offered “a reasonable explanation” for her earlier failure to disclose her address. Respondent relies on In re Bennett (1980), 80 Ill. App. 3d 207, 399 N.E.2d 272, in which the appellate court found that the mother’s “continuing and regular contact with her daughter,” as well as her successful employment and participation in individual and group counseling, demonstrated a reasonable effort. 80 Ill. App. 3d at 210-11.

A finding of parental unfitness must be supported by clear and convincing evidence (In re Paul (1984), 101 Ill. 2d 345, 352, 461 N.E.2d 983), and a trial court’s finding of unfitness will not be disturbed on review unless it is against the manifest weight of the evidence. (In re Bennett (1980), 80 Ill. App. 3d at 210.) What constitutes a “reasonable effort” is a subjective determination (In re Bennett, 80 Ill. App. 3d at 210), and the trial judge’s finding that respondent has failed to make a reasonable effort to correct the conditions which were the basis of removal of J. is not contrary to the manifest weight of the evidence. There was testimony that respondent did not cooperate with the social workers, did not follow through with counseling, refused to attend parenting classes, cancelled many of her visits with J. and failed to interact with him when she did visit. Such evidence clearly supports the trial court’s decision.

The trial judge also found that respondent failed to make reasonable progress toward the return of J. within 12 months after the adjudication of wardship. Reasonable progress has been defined as follows:

“ ‘[Accordingly, the term “reasonable progress” requires at a minimum measurable or demonstrable movement toward the goal of return of the child. *** Such an inquiry might well involve consideration of the limitations of the parents, but also would necessarily require consideration of the possibility that the child might be forced to indefinitely reside with a succession of impermanent foster parents. Reasonableness may also depend on the situation which led to removal of the children, since slight progress in correcting a situation which was relatively mild could be viewed as more satisfactory than the same degree of progress in correcting a situation that greatly endangered a child.’ ” (In re Doolan (1981), 101 Ill. App. 3d 322, 325, 427 N.E.2d 1348, quoting In re Austin (1978), 61 Ill. App. 3d 344, 350, 378 N.E.2d 538.)

In Doolan, the court found that the mother had made reasonable progress toward the return of her child after the initial 12-month period had expired, and held that by presenting evidence and argument concerning the mother’s progress after the 12-month period, the parties had conceded that her fitness should be measured by her progress after that period. Doolan, 101 Ill. App. 3d at 326.

Respondent claims that she made reasonable progress in achieving her goal of gaining custody of J., while the State maintains that respondent “can point to no objective evidence that she has accomplished any task of the service plan to move closer to her goal.” Again, the evidence supported the trial judge’s findings, and his ruling was not against the manifest weight of the evidence.

Finally, respondent argues that the trial court erred in considering evidence of J.’s best interest in determining whether she was an unfit parent. The State asked the three caseworkers whether it would be in J.’s best interests to be adopted; however, respondent complains only of the questions put to Tracey Livingston, as well as Ms. Travis’ testimony. Livingston stated that she believed it was in J.’s best interest to be adopted, and Travis described J.’s relationship with her and her family and the progress he had made Since coming to live with them. In allowing the questions to Livingston, the judge stated:

“There are two issues. *** [The first] is whether or not parents are fit or unfit and whether or not it is in the best interest of the minor to be adopted even though there might be findings of unfitness. It is readily conceivable that parents may be found unfit and yet it is not [in] the best interest of the minor to terminate parental rights. So both are intertwined and *** exist at all times in this proceeding. I find the inquiry is relevant.”

With regard to Travis’ testimony, the judge stated:

“[T]here are two issues involved; the issue of best interest permeates these matters from beginning to end. I mean that’s what these cases are all about, the best interest of the child. And the court cannot ignore that simply because there has been a petition filed alleging that *** the parents are unfit, and seeking adoption.
Both issues are relevant. The court is aware that before it can even consider ordering any type of adoption it must first find that the parents are unfit by evidence which is clear, and which is convincing to this court.”

The State argued that they were presenting this evidence as a matter of judicial efficiency, because if respondent was found unfit then the judge would have to consider J.’s best interest.

A finding of unfitness is a prerequisite to addressing the question of the child’s best interest (Perkins v. Breitbarth (1981), 99 Ill. App. 3d 135, 424 N.E.2d 1361.) Here, the judge was aware of the law, and based on the record, there is no reason to believe that he considered incompetent evidence in determining that respondent was an unfit parent.

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

Affirmed.

BILANDIC, P.J., and HARTMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE HARTMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OSCAR LOPEZ, Defendant-Appellant.
    First District (2nd Division)
    No. 1—87—3056

    Opinion filed August 29, 1989.

      Hall & Kurz and Steven H. Sosman & Associates, both of Chicago (Kathryn Hall, Jerry Kurz, and Steven Sosman, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, LaCoulton Walls, and Brian Grossman, Assistant State’s Attorneys, of counsel), for the People.

      This case was assigned to the second division on April 15,1989.

   JUSTICE HARTMAN

delivered the opinion of the court:

Following a bench trial, defendant Oscar Lopez was found guilty of delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(a)(2)) and sentenced to 15 years’ imprisonment. Defendant appeals and raises as issues whether: the State proved him guilty beyond a reasonable doubt and the circuit court improperly denied his motion for a new trial because of an alleged appearance of impropriety stemming from a former attorney-client relationship between defendant and the trial judge.

The evidence established that Fred Kinnie, a paid informant, contacted Thomas Bourgeois, an agent of the Federal Bureau of Investigation (FBI), and told him defendant planned to sell “as much narcotics as he [could] prior to the end of the year,” when he would flee the country. Kinnie claimed he had known defendant for several years and still owed him money from a previous cocaine purchase. Defendant, who worked in a hardware store, instructed Kinnie not to use the word “cocaine”; instead, he was to refer to ounces of cocaine as “inches” of “pipe.”

At trial, Kinnie testified that on October 1, 1986, he met with Bourgeois and Agents Christopher Hacías and Van Quarles of the Drug Enforcement Agency (DEA), at which time he telephoned defendant. He indicated he needed “2 inches of pipe,” and defendant told him “to come on.” The price of the cocaine was $4,400.

Agent Quarles searched Kinnie at the DEA office, then drove him to a hardware store located at 2032 West 18th Street in Chicago, where defendant worked. Other surveillance officers followed in separate cars. Quarles parked approximately three-quarters of a block from the store, counted the $4,400 and handed it to Kinnie, who also counted the money before putting it in an envelope. Quarles then walked into the hardware store while Kinnie waited alone in the car; after a couple of minutes, Kinnie also entered the store.

Defendant, who was talking to a customer, motioned to Kinnie upon noticing him. A short time later, defendant led Kinnie into a room at the back of the store. Kinnie stood near the doorway of the room with his back towards the store and gave defendant the envelope containing the money. After pocketing the envelope defendant reached into a piece of pipe, pulled out a packet and handed it to Kinnie.

Kinnie put the packet in his pocket, exited the store and proceeded toward Quarles’ car. Kinnie glanced over his shoulder and saw defendant standing outside watching him. The car doors were locked, so Kinnie crossed the street and continued walking for a half block. As he turned the corner onto Hoyne Avenue, Quarles drove up. Kinnie got into the car, gave the packet to Quarles and was returned to the DEA office, where he was once again searched.

On November 12, 1986, Kinnie and Agent Quarles revisited the hardware store, again for the purpose of purchasing cocaine from defendant. Defendant refused to deal with Agent Quarles, whom he thought was an informant because “he didn’t look right.”

Kinnie admitted on cross-examination that he made a statement to Agent Hacías on October 1, 1986, which indicated that the price of the cocaine was $1,800 per ounce. He claimed, however, that the price would be $2,200 because he owed defendant money. The statement further specified that Kinnie walked a few blocks after leaving the store before Quarles picked him up; Kinnie responded at trial that this was not correct. He also observed that the statement inaccurately reflected a prior conviction for burglary, then conceded it did not mention previous convictions for armed robbery, forgery and mail fraud. Kinnie acknowledged that the government paid him $500 for his participation in the instant case, and that he had been a paid informer in other investigations.

Special agent Christopher Hacías of the DEA next testified that he met with Bourgeois, Quarles, and Kinnie on October 1, 1986, to formulate a plan to purchase two ounces of cocaine from defendant. In accordance with the plan, Kinnie telephoned defendant at the hardware store and asked for “2 inches of pipe.” The price of the cocaine was $4,400, part of which was for repayment of money that Kinnie owed defendant from prior narcotics purchases. The serial numbers on the money were recorded before it was given to Kinnie, but this cash was never recovered. Hacías observed Quarles conduct a pat-down search of Kinnie before leaving the DEA office for drugs, weapons or large amounts of cash, but nothing was found.

Quarles and Kinnie then drove to the store in one vehicle, Hacías and Bourgeois followed in a second, and Agents Johnson and Jones trailed in a third. Hacías parked about V-k blocks away from the hardware store. He observed Quarles enter, followed about one minute later by Kinnie. After five minutes elapsed, he saw Kinnie exit the store and walk west on 18th Street toward Quarles’ car, pause briefly at the vehicle, and continue walking. Hacías also noticed defendant standing in front of the store. Hacías lost sight of Kinnie as he crossed 18th Street onto Hoyne Avenue.

Momentarily, Quarles left the store, went to his vehicle and drove away in Kinnie’s direction. Shortly thereafter, Hacías received a radio transmission from Quarles, who reported he had procured a package containing two ounces of cocaine. Defendant was arrested on January 6,1987.

Quarles’ testimony regarding the transaction essentially corroborated the details provided by Kinnie and Hacías. In addition, he averred that when he left the store and walked to his car, he saw Kinnie walking on the street and never lost sight of him before picking him up on Hoyne. When he and Kinnie returned to the office after the transaction, Quarles conducted a field test on the contents of the package, which revealed cocaine.

A subsequent DEA laboratory analysis determined that the package contained 56.36 grams of cocaine. At this point, the State rested.

The circuit court then denied defendant’s motion for a directed finding. It commented that Kinnie’s testimony, which alone would have been insufficient, was corroborated by the telephone call he made to defendant from the DEA office, the surveillance conducted by several agents, and the searches of Kinnie before and after Quarles’ recovery of narcotics from him.

It was then stipulated that: FBI Agent Bourgeois paid Kinnie $500 for his services; Kinnie was promised an additional sum for his testimony at trial; on August 26, 1986, Kinnie told Bourgeois that defendant planned to sell as much narcotics as he could before the end of the year and then flee the country; and, a few days prior to October 1, 1986, someone from the DEA asked Bourgeois to bring Kinnie to the DEA office because a “buy” was going to take place. The defense then rested.

In finding defendant guilty, the circuit court observed Agents Hacías and Quarles were credible witnesses and it believed their testimony. The court also noted Kinnie was the only eyewitness to the transaction and recognized his pecuniary motive to testify. Asserting Kinnie’s testimony would be judged by a different standard than that applied to the agents, the court commented:

“I do not think that if Mr. Kinnie testified alone without the testimony of the agents that [defendant] could be convicted beyond a reasonable doubt, but because I think Mr. Kinnie’s testimony by itself, without any corroboration or support would be so specious because of his background and the fact that he’s doing it for the money that that would give me a reasonable doubt.
But, in fact, there is corroboration for Mr. Kinnie’s testimony. And the most significant testimony for me in terms of the arguments that I’ve heard here this afternoon has to do with the testimony of the search at the DEA office.”

Finding that Kinnie did not have narcotics or money on his person when he left the DEA office or when he returned, other than the package he turned over to the agents, and further, that Quarles never lost sight of Kinnie, the court concluded sufficient corroboration of Kinnie’s testimony existed.

The court found defendant guilty and sentenced him to 15 years in custody of the Illinois Department of Corrections. He appeals, asking this court to reverse his conviction or, alternatively, grant a new trial.

I

Defendant first contends he was not proved guilty beyond a reasonable doubt. He maintains Kinnie’s testimony required close scrutiny, and despite the corroborating evidence provided by the agents, was insufficient to sustain a finding of guilty because: (1) when Kinnie telephoned defendant from the DEA office, he said he needed “2 inches of pipe” and there was no mention of cocaine, and the only evidence that Kinnie meant cocaine was his own testimony; (2) the surveillance by the DEA agents was insufficient corroborative evidence since no one actually observed the alleged transaction between defendant and Kinnie; and (3) the court improperly relied on Quarles’ inefficient pat-down search of Kinnie.

A reviewing court will not disturb a criminal conviction unless the evidence is so improbable or unsatisfactory that reasonable doubt of defendant’s guilt is created; the relevant inquiry is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267.) Applying this principle to the instant case, we find no basis upon which the circuit court’s finding can be disturbed.

Under the applicable statute, the State was required to prove defendant knowingly delivered a controlled substance. (Ill. Rev. Stat. 1985, ch. 561/2, par. 1401(a)(2); People v. Cortez (1979), 77 Ill. App. 3d 448, 451, 395 N.E.2d 1177.) Whether the State met its burden in this case depends, to a great extent, upon a determination of the credibility of the witnesses. Defendant contends that the testimony of Kinnie, the only witness to the alleged transaction, was suspect and insufficient to support defendant’s conviction because Kinnie was a drug user, convicted felon and paid government informer. The testimony of a narcotics addict-informer must be scrutinized with caution; his testimony, however, may be sufficient to support a conviction if corroborated by other testimony and believable in light of circumstantial evidence, or otherwise credible under the surrounding circumstances. People v. Hines (1964), 30 Ill. 2d 152, 157, 195 N.E.2d 712; People v. Norman (1963), 28 Ill. 2d 77, 82, 190 N.E.2d 819; People v. Smith (1979), 70 Ill. App. 3d 250, 259, 387 N.E.2d 901.

Failure of law enforcement officials to see the exchange of money for narcotics between the informer and defendant is not necessarily fatal to the State’s case; convictions may be affirmed “if attendant circumstances lent credence to the informer’s testimony.” (People v. Hill (1967), 83 Ill. App. 2d 116, 122, 227 N.E.2d 117.) Convictions have been affirmed where the only witness to the actual narcotics transaction was an informer searched prior to the meeting with defendant, given money that was marked or had its serial numbers recorded, and monitored closely by law enforcement officials. (People v. Pittman (1981), 100 Ill. App. 3d 838, 427 N.E.2d 276, aff’d (1982), 93 Ill. 2d 169, 442 N.E.2d 836; People v. Blackburn (1971), 133 Ill. App. 2d 404, 273 N.E.2d 472; People v. Hill, 83 Ill. App. 2d 116, 227 N.E.2d 117; People v. Johnson (1966), 75 Ill. App. 2d 42, 221 N.E.2d 59; People v. Walker (1964), 50 Ill. App. 2d 394, 200 N.E.2d 26.) Reasonable doubt as to defendant’s guilt does not necessarily result from the fact that the money used in the exchange was not recovered (People v. Johnson, 75 Ill. App. 2d 42, 221 N.E.2d 59; People v. Walker, 50 Ill. App. 2d 394, 200 N.E.2d 26), or that defendant was not arrested immediately after the transaction. (People v. Hill, 83 Ill. App. 2d 116, 227 N.E.2d 117; People v. Johnson, 75 Ill. App. 2d 42, 221 N.E.2d 59.) Nor does Quarles’ examination of Kinnie, a pat-down as opposed to a strip search, create a reasonable doubt; the thoroughness of a police search prior to the purchase of narcotics only goes to the weight the informant’s testimony will be given. People v. Barnes (1971), 133 Ill. App. 2d 278, 281, 273 N.E.2d 240.

In light of the foregoing, there is no basis upon which to disturb the circuit court’s finding. The court’s comments establish that it carefully scrutinized the testimony of Kinnie and considered it credible only in light of the surrounding circumstances. In finding the essential elements of the offense, the court properly relied on that testimony, the corroborative evidence (particularly, the unproductive searches of Kinnie by Quarles and the close surveillance of Kinnie by all of the agents), the positive field test, and the stipulation that a subsequent chemical analysis confirmed the substance given to Kinnie by defendant was cocaine. Further, the credibility of the witnesses, as determined by the court as trier of fact, was not so unsatisfactory as to raise a reasonable doubt of defendant’s guilt. See People v. Pittman, 93 Ill. 2d at 175.

II

Defendant alternatively requests he be granted a new trial because of an alleged appearance of impropriety created by a former attorney-client relationship between defendant and the trial judge. Defendant’s written post-trial motion alleged that the trial judge, Richard Neville, represented defendant five years earlier in 1982 in an unrelated criminal matter; at the hearing, however, counsel clarified that defendant actually was represented by Judge Neville’s former law partner, Mr. Walsh, from the firm Walsh and Neville. Relying on agency principles, defendant argues that Supreme Court Rule 63(C)(1)(c) (113 Ill. 2d R. 63(C)(1)(c)) prohibited Judge Neville from hearing the instant case because he was Walsh’s partner during the previous representation. Defendant also maintains that Judge Neville’s participation in the matter violated the rules of judicial conduct by creating the appearance of impropriety.

At the post-trial hearing, the circuit court summarized the nature of Walsh’s earlier representation: defendant was indicted in 1982 for a narcotics-related offense; Walsh appeared on behalf of defendant at the arraignment on March 8; some discovery matters were filed on April 15; on May 27 there was a bond forfeiture and a warrant issued for defendant’s arrest; defendant was arrested sometime later; and on August 26 the law firm of Walsh and Neville withdrew from the case. Judge Neville stated that neither he nor the law firm of Walsh and Neville represented defendant at the trial of that matter, but only during some discovery proceedings which occurred over one year prior to a final disposition in the case. The judge did not address defendant’s claim that he paid a $5,000 fee to the law firm in the 1982 matter; however, he did stress that he did not remember defendant or the law firm’s prior representation of him. In denying defendant’s motion, Judge Neville commented that the allegation concerning the appearanee of impropriety was a “blanket statement” unsupported by any specific facts.

The State initially contends defendant waived this issue by failing to mention it at trial, first raising the question in his post-trial motion. Failure to raise an issue both at trial and in a written post-trial motion ordinarily results in waiver of the matter on appeal (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274); the waiver rule may be relaxed, however, when both the right of a defendant to an impartial trial and the duty of the court to avoid any appearance of impropriety are implicated. People v. Austin (1983), 116 Ill. App. 3d 95,101, 451 N.E.2d 593.

The State nevertheless insists that our review of the issue will reward defendant for his omission to act during trial. We recognize, as did the trial judge, that a defendant might attempt to gain the best of both worlds by failing to raise the issue at trial, then later appeal the verdict under Rule 63(C)(1)(c) if that result was unfavorable to him. If such conduct were reflected in the record, we would hold that defendant invited error and knowingly waived any objection to it. (People v. Austin, 116 Ill. App. 3d at 101.) Here, however, the record indicates defendant did not recognize that the judge was his previous attorney’s former partner until after the trial, and the judge also was not aware of any potential conflict. Without more, we cannot say defendant invited error and thus decline to apply the waiver rule. People v. Austin, 116 Ill. App. 3d at 101-02.

Turning to the merits, research reveals no case law interpreting amended Supreme Court Rule 63(C)(1)(c), on which defendant’s claim is based. (113 Ill. 2d R. 63(C)(1)(c).) This rule, as amended, incorporates former Supreme Court Rules 61 and 67. Former Rule 61 provided (73 Ill. 2d R. 61(c)(4)):

“A judge’s official conduct should be free from impropriety and the appearance of impropriety ***.”

Former Rule 67(c) provided (73 Ill. 2d R. 67(c)):

“A judge shall not participate in any case in which he has previously acted as counsel. He cannot rid himself of this responsibility by consent of counsel or the parties to the case.”

The amended Rule 63 does not depart radically from the replaced provisions; instead, the applicable section “represents a lessening of the restrictions placed on the involvement of a judge in a case in which one of the attorneys is someone with whom the judge was formerly associated.” (See Ill. Ann. Stat., ch. 110A, par. 63, Historical and Practice Notes, at 24 (Smith-Hurd Supp. 1989).) The amended Rule 63 provides (113 Ill. 2d R. 63(C)(1)(c)):

“(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where
* * *
(c) he was, within the preceding three years, associated in the private practice of law with any law firm or lawyer currently representing any party in the controversy (provided that referral of cases when no monetary interest was retained shall not be deemed an association within the meaning of this subsection) or, for a period of seven years following the last date on which he represented such a party, he represented any party to the controversy while he was an attorney engaged in the private practice of law.”

Since amended Rule 63(C)(1)(c) incorporates former Rules 61(c)(4) and 67(c), we look to decisions interpreting those rules for guidance. These cases held that Rule 67(c) did not require a judge to recuse himself or risk reversible error any time he had knowledge of, contact with, or some interest in the case. (People v. Del Vecchio (1989), 129 Ill. 2d 265, 276-77; People v. Lipa (1982), 109 Ill. App. 3d 610, 613, 440 N.E.2d 1062; People v. Burnett (1979), 73 Ill. App. 3d 750, 754-55, 392 N.E.2d 235.) Further, it did not require a judge to withdraw even though he had been involved in a previous stage of the case. (United States ex rel. Link v. Lane (7th Cir. 1987), 811 F.2d 1166, 1171.) As recently summarized by our supreme court, “[mjerely having a previous involvement with a defendant does not, per se, require disqualification. The important phrase is ‘acted as counsel.’ ” (People v. Del Vecchio, 129 Ill. 2d at 277.) The words “acted as counsel” must be given their plain meaning and apply to a judicial officer who actually was involved in the prosecution or defense of a defendant’s case. (People v. Burnett, 73 Ill. App. 3d at 754.) Similarly, the words of the amended provision, Rule 63(C)(1)(c), referring to a judge who “represented any party to the controversy,” should be given their plain meaning; it likewise applies to a judge who was actually involved in the prosecution or defense of a defendant’s case.

In the following circumstances, a trial judge’s former involvement with a defendant was found not to have constituted “acting as counsel”: (1) the judge, in a supervisory capacity with the State’s Attorney’s office, assigned an earlier, unrelated case involving defendant to an attorney in that office, and later agreed, at the request of defense counsel, to expedite the indictment so defendant could be sentenced as a youth (People v. Del Vecchio, 129 Ill. 2d at 277-78); (2) the judge, in a supervisory capacity with the State’s Attorney’s office at the time of defendant’s indictment, approved a grand jury subpoena for some records in the case (People v. Lipa, 109 Ill. App. 3d 610, 440 N.E.2d 1062); (3) the judge was in a supervisory capacity with the State’s Attorney’s office at the Richard J. Daley Center where defendant’s case previously had been pending and where a bond forfeiture hearing had been held (People v. Burnett, 73 Ill. App. 3d 750, 392 N.E.2d 235); and (4) the judge, as an assistant State’s Attorney, appeared before a grand jury hearing investigating the defendants and had assisted in the preparation of a related memorandum. (United States ex rel. Link, 811 E2d 1166.) Further, in Lipa, Burnett, and Link, the trial judge disavowed any memory of his former involvement with the defendant’s earlier case.

Defendant relies on People v. Austin (1983), 116 Ill. App. 3d 95, 451 N.E.2d 593, wherein the trial judge, a former public defender, was held to have “acted as counsel” when he appeared on defendant’s behalf at a preliminary hearing in the same case. In holding that the trial judge should have recused himself, the Austin court recognized that, although Rule 67(c) primarily addressed the ethical responsibility of the Illinois judiciary, it also reflected a deeper policy judgment that a party, in fairness, should not be tried before a judge with whom he had a prior attorney-client relationship in that same cause. (116 Ill. App. 3d at 100.) The court further noted that even if the judge’s involvement as an attorney for the defendant was minimal, the determinative factor was the effect of the appearance rather than a demonstration of impropriety; mere representation, however brief, was sufficient to require recusal. People v. Austin, 116 Ill. App. 3d at 100.

Austin is distinguishable from the instant case in two important respects. There, the trial judge himself had represented defendant; further, he represented defendant in the same cause over which he later presided as judge. Here, the record indicates that Judge Neville himself never actually represented defendant; rather, his partner in the law firm appeared on behalf of defendant. Also, that partner’s representation involved a matter completely unrelated to the instant case over which Judge Neville presided.

Other than Judge Neville’s previous affiliation with Walsh, defendant presents nothing that suggests the judge’s actual involvement in the defense of the former cause. Defendant’s speculations that the judge “appeared” for defendant in the earlier case, or that a dispute between defendant and the firm occurred over money, are unfounded. Nothing appears in the record contradicting Judge Neville’s assertion that he did not remember defendant, but if he had, he would have mentioned it immediately. Based on this record, it cannot be said that Judge Neville “represented any party” to the earlier controversy. See People v. Del Vecchio, 129 Ill. 2d at 277-78.

In light of the foregoing, we do not believe Rule 63(C)(1)(c) was violated. In addition, since any earlier relationship between Judge Neville and defendant never constituted “representation,” no appearance of impropriety was created here; unlike Austin, his involvement with defendant’s case cannot even be said to be minimal. (People v. Austin, 116 Ill. App. 3d at 100.) We reject defendant’s contention that it was error to deny his motion for a new trial.

For the reasons stated above, the judgment of the circuit court is affirmed.

Judgment affirmed.

BILANDIC, P.J., and DiVITO, J., concur.

      In his brief, defendant bases his argument on the amended rule. (113 Ill. 2d R. 63(C).) At the commencement of trial, the amended rule had not yet been adopted, and former Rule 67(c) was still in effect. (73 Ill. 2d R. 67(c).) On August 1, 1987, 10 days after the trial, but before argument on the post-trial motion when the issue was first raised, the amended rule became effective. We need not engage in lengthy discussion to determine the controlling provision; the revisions in the amended rule do not affect our subsequent analysis. We therefore accept, for purposes of this opinion, defendant’s reliance on amended Rule 63(C).


author: JUSTICE DiVITO

text:
    MARIA BERNARDI, Indiv. and as Adm’r for the Estate of Michael P. Bernardi, Plaintiff-Appellant, v. CHICAGO STEEL CONTAINER CORPORATION et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—87—3677
    Opinion filed August 29, 1989.

      George M. Elsener and Francis William Golden, both of George M. Elsener & Associates, of Chicago, for appellant.
    Bruce Farrel Dorn, of Brenner, Mavrias, Dorn & Aim, and James T. Ferrini, John M. Hynes, and Sonia V. Odarczenko, all of Clausen, Miller, Gorman, Caffrey & Witous, P.C., both of Chicago, for appellees.
   JUSTICE DiVITO

delivered the opinion of the court:

This is an appeal from a judgment entered on a jury verdict against plaintiff in a wrongful death action. Plaintiff alleges that the trial court erred in (1) allowing two witnesses to testify in violation of the Dead Man’s Act (Ill. Rev. Stat. 1985, ch. 110, par. 8 — 201); (2) submitting to the jury special interrogatories which confused the jury with regard to plaintiff’s burden of proof; (3) failing to allow a count alleging negligence under the res ipsa loquitur doctrine or failing to direct a verdict based on that doctrine; and (4) failing to direct a verdict or grant a new trial against the corporate defendant.

Chicago Steel Container Corporation (Chicago Steel) manufactures industrial drums at 1846 South Kilbourne Street in Chicago. Michael Bernardi was an independent contractor retained by Chicago Steel to repair Chicago Steel vehicles. Bernardi repaired Chicago Steel’s vehicles “after hours” in Chicago Steel’s yard, used his own tools, and decided on his own methods in Repairing the vehicles.

On November 26, 1981, Bernardi was working on a vehicle in Chicago Steel’s yard. Bernardi was accompanied by Roger Mollenhour (Mollenhour) and Mollenhour’s 10-year-old son. Mollenhour was sitting in the driver’s seat of the vehicle, while Bernardi was “priming” the engine by pouring gasoline into the carburetor. The engine compartment of the vehicle caught fire and Bernardi was fatally burned.

Plaintiff filed suit against Mollenhour and Chicago Steel. Plaintiff charged that Mollenhour negligently caused the death of Michael Bernardi by prematurely starting the vehicle’s engine while Bernardi was priming the carburetor. Plaintiff charged that defendant Chicago Steel was negligent in failing to provide working fire extinguishers in its yard where vehicles were repaired. Before trial, plaintiff filed a motion for leave to amend her complaint in order to add a count alleging that Mollenhour was negligent under the theory of res ipsa loquitur. That motion was denied on the ground that Mollenhour did not have exclusive control over the instrumentality that caused Bernardi’s injury.

At the trial, Bernardi’s daughter testified that after the occurrence on November 26, 1981, Mollenhour admitted that he had made “a mistake” by “startpng] the engine too soon.” According to Bernardi’s daughter, Mollenhour also stated that he did not “think [he] waited for the signal” and did not “remember if [Bernardi] gave [him] the signal.” Bernardi’s son testified that after the occurrence, Mollenhour admitted that “it was [his] fault that it happened.” According to Bernardi’s son, Mollenhour stated that he felt “guilty” and that he was “not sure whether [he] heard the signal or not[,] but started [the engine] at the wrong time.” Five other witnesses, all friends of the Bernardi family, gave similar testimony.

Tom Mollenhour, defendant’s son, testified that he was present at the time of the occurrence on November 26, 1981. Tom was 10 years old at the time of the occurrence and 15 years old at the time of the trial. According to Tom, Bernardi told Mollenhour that he was going to prime the carburetor and that he would tell him when to start the vehicle. Bernardi had a two-pound coffee can half full with gasoline. He instructed Mollenhour in the manner of starting the vehicle, then went to the passenger’s side, leaned over the engine, tilted the can for three or four seconds, straightened up with the can in his hand and, finally, told Mollenhour to try starting the vehicle. Flames then came out of the vehicle and engulfed Bernardi. Mollenhour pushed Bernardi down, rolled him over in an attempt to extinguish the fire, and then ran into Chicago Steel’s building to get a fire extinguisher. Plaintiff objected to Tom’s testimony on the ground that it violated the Dead Man’s Act (Ill. Rev. Stat. 1985, ch. 110, par. 8 — 201).

Mollenhour conceded that he spoke with plaintiff’s witnesses after the accident and told them that the accident was “his fault.” However, Mollenhour testified that he never stated to any of plaintiff’s witnesses that he started the engine before a signal was given or before Bernardi was through pouring the gasoline. For example, Mollenhour testified that he told Bernardi’s son that he started the engine when he was told to do so.

The trial court did not permit Mollenhour to testify to events which occurred in the presence of Bernardi. Rather, Mollenhour was permitted only to explain or deny his conversations with plaintiff’s witnesses. The trial court stated: “This is a very close question of whether or not he is going to be able to testify. What happened at the scene as compared to what his responses were relative to alleged admissions, that’s all he’s trying to deal with.” Plaintiff’s attorney then stated: “Again I think he has a right to explain them and deny them but not to get into what happened.” The only objections made thereafter by plaintiff concerning Mollenhour’s testimony were objections to leading questions and inadequate foundations.

In regard to plaintiff’s case against Chicago Steel, Bernardi’s daughter testified that Mollenhour told her after the occurrence that he found a fire extinguisher on Chicago Steel’s premises, but that it “broke” when he “tried to pull the pin out.” Otto Sorino, a vice-president at Chicago Steel, testified that he had placed a fire extinguisher in the yard outside the Chicago Steel plant some time after 1971, but that it had been stolen prior to November 1981 and never replaced.

Sorini also testified that fire extinguishers were placed throughout the Chicago Steel building in accordance with Chicago fire department regulations. Sorini testified that his earlier decision to put a fire extinguisher in the yard was “strictly a personal decision.”

Louis Trilla of Chicago Steel testified that Chicago Steel had 22 fire extinguishers in its building placed in accordance with Chicago fire department regulations. According to Trilla, the fire department inspected Chicago Steel’s premises annually and had never issued a citation. Trilla stated that the last inspection prior to November 26, 1981, was in August or September of 1981.

Consistent with Trilla’s testimony, Lieutenant Harry Benson of the Chicago fire department searched Chicago Steel’s records and found no citations against Chicago Steel. Benson testified that a Municipal Code violation could occur without a report of any violation being made and that there was a Municipal Code requirement that outdoor fire retardant materials be present at locations where wood is stored or where gasoline is distributed or stored. Apparently, wood pallets and full and empty paint cans were present in the Chicago Steel yard, but the paint was noncombustible.

Mollenhour testified that he ran into Chicago Steel’s main building after Bernardi caught fire and found a fire extinguisher on a post located about five feet from the entrance. That extinguisher was about 80 feet from the point where Mollenhour first ran in search of a fire extinguisher. One to three minutes had elapsed before Mollenhour found the fire extinguisher. Mollenhour picked up the fire extinguisher, but the pin “bent” and “prevent[ed] [him] from getting it out.”

Sorini then testified that he arrived at Chicago Steel at 9 a.m. on November 27, 1981, and found the fire extinguisher that Mollenhour had picked up lying on its side outside the overhead doors to the truck bay. Sorini examined the fire extinguisher and found the pin bent, but was nevertheless able to pull the pin out and squeeze the handle. When Sorini squeezed the handle, the fire extinguisher emitted a white chemical cloud.

David Chambers, called by plaintiff as an expert in the process of priming an engine, testified that priming is a “very, very dangerous procedure” and there is “no safe way” to do it with an open can of gas nearby. According to Chambers, priming involves adding less than an ounce of fuel to the carburetor to encourage the first stroke of combustion, reattaching the air filter, putting the gas container in a safe place, moving to a point of safety and then turning the ignition.

Finally, several witnesses testified that Bernardi was a skilled mechanic with 37 years of experience; that Bernardi was aware of dangers confronting mechanics; that he was careful when confronting these dangers; and that he had instructed a number of people in the safe approach to mechanical work.

Two special interrogatories were submitted to the jury over plaintiff’s objection. Special interrogatory No. 1 asked:

“Was the defendant, Roger Mollenhour, guilty of negligence, at the time of the occurrence, which proximately caused the injuries and death of Michael R Bernardi[?]”

The term “guilty” was not defined in the jury instructions. The jury answered this interrogatory in the negative. Special interrogatory No. 2 asked:

“Do you find that Michael P. Bernardi at the time of the occurrence was exercising ordinary care for his own safety as to avoid proximately causing himself injury?”

The jury also answered this interrogatory in the negative.

The jury returned a verdict in favor of each defendant. The trial court entered judgment on the verdict and denied plaintiff’s post-trial motion.

I

Plaintiff maintains that the testimony of Roger Mollenhour and his 15-year-old son, Tom Mollenhour, was admitted in violation of the Dead Man’s Act. Specifically, plaintiff maintains that the trial court erred in allowing Mollenhour to testify that he did not tell plaintiff’s witnesses that he started the engine before hearing Bernardi’s signal. Plaintiff also maintains that Tom Mollenhour’s testimony regarding events that took place in Bernardi’s presence was admitted in violation of the Dead Man’s Act. Plaintiff argues that Tom Mollenhour was not competent to give such testimony because he was an “interested person” for purposes of the Dead Man’s Act.

The Dead Man’s Act provides, in relevant part, that in a trial of any action in which any party sues or defends as the representative of a deceased person, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or to any event which took place in the presence of the deceased. (Ill. Rev. Stat. 1985, ch. 110, par. 8— 201.) Under the Dead Man’s Act, the testimony of adverse parties and interested persons is disqualified only to the extent that it is testimony concerning a conversation with the deceased or of an event which took place in the presence of the deceased. (In re Estate of Babcock (1985), 105 Ill. 2d 267, 273, 473 N.E.2d 1316; Buczyna v. Cuomo & Son Cartage Co. (1986), 146 Ill. App. 3d 404, 411, 496 N.E.2d 1116.) A waiver of the adverse or interested party’s incompetency takes place to the extent that the representative of the deceased presents testimony of a witness concerning any conversation with the deceased or to any event which took place in the deceased’s presence. Buczyna v. Cuomo & Son Cartage Co. (1986), 146 Ill. App. 3d 404, 411, 496 N.E.2d 1116.

In this case, seven of plaintiff’s witnesses testified to statements made by Mollenhour after the occurrence on November 26, 1981. In particular, Bernardi’s daughter testified that Mollenhour told her he did not remember whether Bernardi gave him a signal. Bernardi’s son testified that Mollenhour told him he was not sure “whether he heard the signal or not.” The other five witnesses gave similar testimony. The trial court then permitted Mollenhour to explain or deny these conversations, but specifically directed Mollenhour not to testify to events which occurred in Bernardi’s presence. Mollenhour testified that he told Bernardi’s daughter that he “didn’t start [the engine] until the signal was given.” Mollenhour also testified that he told Bernardi’s son that “[Bernardi] couldn’t get the engine started. [Bernardi] said that it wasn’t getting gas or something.” Mollenhour similarly denied or explained his conversations with plaintiff’s other witnesses.

Mollenhour was plainly incompetent to testify to events that took place in Bernardi’s presence or to conversations with Bernardi. Because plaintiff’s witnesses testified to conversations with Mollenhour, not to events occurring in Bernardi’s presence or to conversations with Bernardi, plaintiff did not waive Mollenhour’s incompetency to testify. See Buczyna v. Cuomo & Son Cartage Co. (1986), 146 Ill. App. 3d 404, 411, 496 N.E.2d 1116 (waiver “requires that the testimony relate to a conversation with the deceased” and there is no waiver “merely in the case of testimony concerning a conversation with an adverse party”).

Nonetheless, Mollenhour’s testimony did not violate the Dead Man’s Act because the purpose of Mollenhour’s testimony was not to get before the jury the substance of his conversation with Bernardi or to relate any events which took place in Bernardi’s presence. (See In re Estate of Konow (1987), 154 Ill. App. 3d 744, 506 N.E.2d 450.) Rather, Mollenhour merely gave his own version of his conversations with plaintiff’s witnesses. Since Mollenhour was entitled to controvert his alleged admissions, his testimony in this case was properly admitted.

Tom Mollenhour’s testimony likewise did not violate the Dead Man’s Act. A witness is incompetent to testify under the Dead Man’s Act only if the witness is “directly interested” in the action. (Ill. Rev. Stat. 1985, ch. 110, par. 8 — 201.) A “directly interested” witness is one whose interest in the judgment is such that a pecuniary gain or loss would come to him or her directly as the immediate result of the judgment. (Brownlie v. Brownlie (1932), 351 Ill. 72, 183 N.E. 613; Michalski v. Chicago Title & Trust Co. (1977), 50 Ill. App. 3d 335, 339, 365 N.E.2d 654.) For example, the spouse of a person who is incompetent to testify is also disqualified under the Dead Man’s Act. (In re Estate of Babcock, 105 Ill. 2d 267, 473 N.E .2d 1316; In re Estate of Teehan (1936), 287 Ill. App. 58, 4 N.E.2d 513.) But the prospective heir of a party or interested person is not incompetent to testify. (Ackman v. Potter (1909), 239 Ill. 578, 88 N.E. 231; In re Estate of Franke (1970), 124 Ill. App. 2d 24, 259 N.E.2d 841.) If the testimony of the witness does not show direct, certain and immediate pecuniary interest, the witness’ interest, if any, goes merely to his or her credibility and not to his or her competency to testify. Spencer v. Wilsey (1947), 330 Ill. App. 439, 447, 71 N.E.2d 804.

Plaintiff argues that Tom Mollenhour was a “directly interested” person under the Dead Man’s Act because a minor child is more dependent on his or her parent for support than one spouse is on another. Plaintiff argues that a minor’s interest in the assets and liabilities of his or her parent is reflected in the statutory right of children to the physical, mental, emotional and monetary support of their parents. This dependency, plaintiff argues, establishes that Tom Mollenhour would suffer direct and immediate pecuniary loss if his father does not prevail in this lawsuit.

However, there is no support for plaintiff’s position. Contrary to plaintiff’s assertion, Kamberos v. Magnuson (1987), 156 Ill. App. 3d 800, 510 N.E.2d 112, does not hold that the daughter of a “directly interested” person is herself incompetent to testify In that case, the plaintiff filed suit against the defendant, seeking imposition of a constructive trust upon monies bequeathed to the defendant allegedly for the plaintiff's benefit, by the will of the deceased. The plaintiff subsequently died and her son was substituted as party plaintiff.

The court noted that the original plaintiff would have been barred by the Dead Man’s Act from testifying to any conversation with the deceased or to any event which took place in the presence of the deceased. Upon the plaintiff’s death, the court observed, her incompetency “logically extended] to her daughter.” (Kamberos v. Magnuson (1987), 156 Ill. App. 3d 800, 804, 510 N.E.2d 112.) The court reasoned that with the plaintiff’s death, her daughter “no longer [had] merely a contingent interest in the litigation, but rather a direct, personal interest, which rendered] her testimony incompetent under the Dead Man’s Act.” (Kamberos v. Magnuson (1987), 156 Ill. App. 3d 800, 804-05, 510 N.E.2d 112.) If the plaintiff had not died, the court stated, her daughter “might have been competent to testify, with only her credibility being affected by her then contingent interest.” (Kamberos v. Magnuson (1987), 156 Ill. App. 3d 800, 804, 510 N.E.2d 112.) Thus, not only is Kamberos inapposite because Tom Mollenhour’s father never died, but that case actually supports defendant’s position that Tom’s interest in the judgment was only “contingent.”

Borman v. Oetzell (1943), 382 Ill. 110, 46 N.E.2d 914, relied on by plaintiff, is likewise inapposite. In that case, plaintiff sought to set aside certain deeds that had been executed by her late husband and to enjoin certain insurance companies from paying certain beneficiaries named in her late husband’s life insurance policies. The plaintiff’s adopted son was a devisee of the plaintiff’s late husband and also a defendant in the lawsuit. The court stated that the plaintiff and her adopted son were both directly interested in the suit and, therefore, incompetent as witnesses on plaintiff’s behalf. It is not clear how the plaintiff’s adopted son, a party defendant, might have testified on the plaintiff’s behalf. But it is clear that the plaintiff’s adopted son, as a party to the lawsuit, had a direct pecuniary interest in the action. Thus, plaintiff’s reliance on Borman is misplaced.

Accordingly, there is no support for plaintiff’s contention that Tom Mollenhour was incompetent to testify. On the contrary, Kamberos suggests that Tom Mollenhour was competent to testify on Mollenhour’s behalf and that any “contingent interest” Tom Mollenhour might have had in the outcome of this case affected only his credibility.

II

Plaintiff asserts next that Mollenhour’s special interrogatory No. 1, which asked whether Mollenhour was “guilty of negligence” at the time of the occurrence, was erroneously submitted to the jury because it confused the jury with regard to plaintiff’s burden of proof. Plaintiff notes that the term “guilty” was not defined by the trial court.

Plaintiff also asserts that Mollenhour’s special interrogatory No. 2, which asked whether Michael Bernardi “was exercising ordinary care for his own safety as to avoid proximately causing himself injury,” aggravated the error in the submission of special interrogatory No. 1, because the inference could be drawn from the two interrogatories that Mollenhour did not have to shoulder the same burden of proof on the issue of Bernardi’s contributory negligence.

It is settled that a special interrogatory should not be submitted to the jury if it might confuse, mislead, or prejudice a party. (Saldana v. Wirtz Cartage Co. (1977), 55 Ill. App. 3d 440, 444, 370 N.E.2d 1131, rev’d on other grounds (1978), 74 Ill. 2d 379, 385 N.E.2d 664.) A special interrogatory should use the same language or terms that are contained in the jury instructions. (Erickson v. Aetna Life & Casualty Co. (1984), 127 Ill. App. 3d 753, 766, 469 N.E.2d 679; Saldana v. Wirtz Cartage Co., 55 Ill. App. 3d at 444, 370 N.E.2d 1131.) However, a faulty special interrogatory can be cured when other instructions and the evidence indicate that the jury was not confused by the interrogatory. Zois v. Piniarski (1982), 107 Ill. App. 3d 651, 653, 437 N.E.2d 1251.

In Erickson v. Aetna Life & Casualty Co. (1984), 127 Ill. App. 3d 753, 469 N.E.2d 679, a libel action, the court held that a special interrogatory, asking whether the defendant was “guilty of actual malice,” was properly refused by the trial court. The court observed that the term “guilty” was not defined in the instructions. The jury was instructed, however, that the plaintiff was required to prove actual malice by “clear and convincing evidence.” The court stated that because the term “guilty” is “most often used in the criminal law setting where proof beyond a reasonable doubt is the standard,” the use of the term “could create an unnecessary ambiguity for the jury.” Erickson v. Aetna Life & Casualty Co. (1984), 127 Ill. App. 3d 753, 766, 469 N.E.2d 679.

At the trial in this case, plaintiff objected to the use of the term “guilty” in special interrogatory No. 1. Plaintiff directed the trial court’s attention to the Erickson case, and the trial judge then ordered defendant Mollenhour’s attorney to rewrite the interrogatory leaving out the word “guilty.” Mollenhour’s attorney then said that he could not “retype” the interrogatory and told the trial judge that he took the language of the interrogatory from the interrogatory at issue in Houston v. Leyden Motor Coach Co. (1968), 102 Ill. App. 2d 348, 243 N.E.2d 293. The trial judge then changed his mind about deleting the term “guilty,” apparently because Houston is a first district case, whereas Erickson is a second district case.

However, the court in Houston v. Leyden Motor Coach Co. (1968), 102 Ill. App. 2d 348, 243 N.E.2d 293, did not specifically approve of the use of the term “guilty” in the special interrogatory. In that case, the plaintiff alleged that the defendant was liable for injuries sustained when a bus door closed on her. The plaintiff claimed that the driver of the bus, as the bus company’s agent, was negligent in operating the bus doors. A special interrogatory was submitted to the jury which asked: “ ‘Was the driver of the bus, Glen Baer, guilty of negligence which proximately caused injury to the plaintiff at the time of the occurrence?’ ” (102 Ill. App. 2d at 351.) The jury returned a verdict for the plaintiff and also responded to the interrogatory in the negative. The trial court then granted the plaintiff’s motion to set aside the jury’s answer to the interrogatory and to grant a new trial on the ground that the special finding was against the manifest weight of the evidence.

The defendant appealed, and the court held that the special finding was not against the manifest weight of the evidence and was binding on the trial court. The parties never raised the issue of the propriety of the term “guilty” in the interrogatory, nor did the court consider whether the jury might have been confused by the use of that term. Thus, in this case, Mollenhour’s reliance on the language of the interrogatory in Houston is misplaced.

Accordingly, under Erickson and other cases stating that special interrogatories should use the same language contained in the instructions, the trial court should have stricken the term “guilty” from special interrogatory No. 1. However, it does not follow that a new trial is warranted. The record does not reflect that the jury was confused over the appropriate burden of proof on the issue of Mollenhour’s negligence. The jury was instructed that plaintiff had the burden of proving negligence by a preponderance of the evidence. Moreover, the jury’s response to special interrogatory No. 1 was not necessarily inconsistent with the general verdict against plaintiff.

Special interrogatory No. 2 was properly given on the question of Bernardi’s contributory negligence. A special interrogatory must be given when it is in proper form and relates to an ultimate issue of fact. (Mudd v. Goldblatt Brothers, Inc. (1983), 118 Ill. App. 3d 431, 454 N.E.2d 754.) In particular, the trial court must give a special interrogatory submitted by the defendant in proper form on the question of contributory negligence. (Mudd v. Goldblatt Brothers, Inc., 118 Ill. App. 3d at 437, 454 N.E.2d 754.) In this case, special interrogatory No. 2 was in proper form and was not confusing or misleading. The concept of contributory negligence was explained to the jury in the instructions, as was the meaning of the term “ordinary care.” Moreover, there is no merit to plaintiff’s contention that special interrogatory No. 2 confused the jury about defendant’s burden of proof, because that burden was explained in the instructions to the jury.

III

Plaintiff maintains next that the trial court erred in refusing to permit her to add a res ipsa loquitur count to her complaint and in refusing to submit this issue to the jury. Plaintiff argues that it is not necessary to conclusively prove all elements of res ipsa loquitur before that theory may be invoked. Finally, plaintiff argues that the trial court should have directed a verdict in her favor on this count because the evidence established that Mollenhour was in control of the ignition system of the truck and prematurely turned the ignition.

The res ipsa loquitur doctrine permits the trier of fact to infer negligence based on circumstantial evidence. (Imig v. Beck (1986), 115 Ill. 2d 18, 503 N.E.2d 324.) When the doctrine is invoked, the plaintiff bears the burden of proving (1) that the occurrence is one that ordinarily does not occur in the absence of negligence, and (2) that the defendant had exclusive control over the instrumentality that caused the injury. (Dyback v. Weber (1986), 114 Ill. 2d 232, 500 N.E.2d 8.) The plaintiff need not conclusively prove these elements in order to invoke the doctrine, but must present evidence “reasonably showing that elements exist that allow an inference that the occurrence is one that ordinarily does not occur without negligence.” (Dyback v. Weber (1986), 114 Ill. 2d 232, 242, 500 N.E.2d 8; Spidle v. Steward (1980) , 79 Ill. 2d 1, 9, 402 N.E.2d 216.) The inference that there was negligence does not disappear if the defendant simply presents direct evidence to the contrary; rather, the defendant’s evidence is considered with all the other evidence in the case. (Dyback v. Weber (1986), 114 Ill. 2d 232, 242, 500 N.E.2d 8.) Application of the doctrine in a given case is a question of law which must be decided in the first instance by the trial court. Imig v. Beck (1986), 115 Ill. 2d 18, 27, 503 N.E.2d 324.

In this case, the trial court properly decided that the res ipsa loquitur doctrine was not applicable. Illinois courts have repeatedly recognized that fires frequently have causes other than negligence. (See Dyback v. Weber (1986), 114 Ill. 2d 232, 243, 500 N.E.2d 8.) Plaintiff’s own expert suggested that the process of priming a carburetor is dangerous even where ordinary care is exercised. For this reason alone, the res ipsa loquitur doctrine was inapplicable. But in addition, Mollenhour had control of only the ignition system. Bernardi himself was in control of the engine compartment of the vehicle. Thus, the res ipsa loquitur doctrine was also inapplicable because control of or responsibility for the vehicle was plainly divided between Mollenhour and Bernardi. See Lynch v. Precision Machine Shop, Ltd. (1981) , 100 Ill. App. 3d 771, 775, 427 N.E.2d 176, aff’d in part, rev’d in part (1982), 93 Ill. 2d 266, 443 N.E.2d 569.

Because plaintiff could not make out even a prima facie case to invoke the res ipsa loquitur doctrine, her argument that the trial court should have directed a verdict in her favor on a res ipsa loquitur count is plainly without merit.

IV

Finally, plaintiff maintains that Chicago Steel owed Bernardi a duty to provide a safe work place. Plaintiff asserts that Chicago Steel breached that duty by not providing working fire extinguishers within a reasonable distance from where its vehicles were repaired. Plaintiff maintains that she was entitled to a directed verdict in her case against Chicago Steel or, alternatively, a new trial on the ground that the verdict was against the manifest weight of the evidence.

First, we need not decide whether Chicago Steel owed Bernardi a duty to provide a safe work place. The jury was instructed, over Chicago Steel’s objection, that Chicago Steel owed Bernardi such a duty. Still, the jury returned a verdict in favor of Chicago Steel. Because we do not find that verdict to be against the manifest weight of the evidence, we do not reach the question of Chicago Steel’s duty to provide a safe work place.

A verdict is against the manifest weight of the evidence only if it is palpably erroneous and wholly unwarranted. (Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 476 N.E.2d 1232.) In this case, testimony at trial established that Chicago Steel kept 22 fire extinguishers on its premises, including an extinguisher 80 feet from the point where Mollenhour first ran in search of an extinguisher. There was also evidence adduced at trial that the fire extinguisher found by Mollenhour was in working condition. Furthermore, the evidence established that Chicago Steel’s premises were regularly inspected by the Chicago fire department and that Chicago Steel had not received any citations prior to November 26, 1981. Thus, it cannot be said that the verdict in favor of Chicago Steel was palpably erroneous or wholly unwarranted.

Plaintiff was not entitled to a directed verdict unless review of all the evidence in the light most favorable to the defendant permitted a determination that the evidence so overwhelmingly favored plaintiff that no verdict for defendant could ever stand. (See Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) For the same reasons noted above that the verdict in favor of Chicago Steel was not against the manifest weight of the evidence, the evidence did not overwhelmingly favor plaintiff and plaintiff was not entitled to a directed verdict against Chicago Steel.

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

Affirmed.

HARTMAN and SCARIANO, JJ„ concur.


text:
    BERNARD ALLEN FRIED et al., Plaintiffs and Intervening Defendants, v. HENRY BARAD, Defendant and Intervening Defendant-Appellant (Rudy Martinez, Intervening Plaintiff-Appellee).
    First District (2nd Division)
    No. 1—87—3762
    Opinion filed August 29, 1989.

      Joseph L. Goldberg, of Chicago, for appellant.
    Martin B. Zells, of Chicago, for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

Intervening defendant-appellant, Henry Barad, appeals the circuit court’s assessment against him of attorney fees. The issues in this appeal relate to the adequacy of the petition for fees and the adequacy of the hearing granting them.

A partition suit seeking partnership dissolution and accounting was brought by Bernard Allen Fried and Howard Weitzman, who are not parties to this appeal, against Barad. Fried, Weitzman and Barad had been partners and co-title holders of certain real estate. Rudy Martinez entered that suit as intervening plaintiff against all three of the partners who were named as intervening defendants. Martinez, the lessee of the real estate which was the subject matter of the underlying suit, sought specific performance upon a purchase option contained in the lease which had been entered into on March 28, 1983.

Barad, who had purchased the property at the sheriff’s sale of partnership assets pursuant to the partition suit, refused to transfer the property to Martinez when Martinez exercised his purchase option under the lease agreement on June 19, 1985. Barad’s verified answer to Martinez’s complaint for specific performance denied the existence of the lease and option and alleged that Martinez’s lease was invalid because it was not executed by the owner or titleholder or anyone with authority to act. At the hearing, Barad testified that he never agreed to the lease and option with Martinez. On November 21, 1986, after the hearing, the circuit court determined that Martinez had a valid option. The court found that Barad’s testimony was “totally incredible, unbelievable, and an outright lie” and that Barad had in fact personally signed the lease which contained the option agreement. Barad was ordered to convey the property to Martinez in accordance with the terms of the option.

A notice of appeal of that order was filed by Barad on December 6, 1986. This court ultimately affirmed the judgment of the circuit court in Fried v. Barad (1988), 175 Ill. App. 3d 382, 530 N.E.2d 93. Within 30 days of the judgment, on December 19, 1986, Martinez filed a petition pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611), for expenses and reasonable attorney fees caused by Barad’s false pleadings and testimony. After the denial of the original petition and pursuant to the court’s leave to refile, an amended petition was filed which included time summaries and affidavits from Martinez’s attorney limited to time spent attempting to prove that Barad had agreed to the lease, and not including time allocated to the specific performance argument. Barad answered the petition on September 9, 1987. The hearing on the amended petition was held on September 29, 1987.

At the hearing, utilizing testimony from the prior trial, Martinez’s attorney established that Barad falsely pleaded and falsely testified before the circuit court with no reasonable cause. Barad’s attorney did not deny the falsity of the pleadings, but averred that the false testimony was reasonably caused by Barad’s advanced age. Barad’s attorney was afforded an opportunity to cross-examine Martinez’s attorney concerning the truth and reasonableness of the time statements. After arguments by both attorneys, the court, which had heard this matter since the underlying proceeding was initiated, reduced the number of hours and the hourly rate computed by Martinez’s attorney. The requested amount of $15,012.50 was reduced to an award of $8,500. The court found this to be a classic case where section 2 — 611 sanctions should apply. It is from this order that Barad appeals.

Barad initially argued that the circuit court had no jurisdiction to award fees after the filing of the notice of appeal and pending the outcome of the appeal. At oral argument, Barad waived this argument. We are therefore left to decide the issues of the adequacy of the petition for attorney fees filed by Martinez and the adequacy of the hearing for those fees.

I

Barad contends that the petition for fees and costs did not provide adequate information for the circuit court to render its judgment. Barad argues that the time summary which is part of the petition for attorney fees and which sets forth Martinez’s attorney’s time, contained no detailed information concerning the nature and actual time expended, the identity of who performed the service, the relation to the untrue pleadings, and whether they were required services.

After an examination of the record and the applicable law, we are not persuaded by Barad’s arguments. Section 2 — 611 of the Illinois Code of Civil Procedure, which provides for attorney fees and costs to be paid by the party opponent, in pertinent part, states:

“Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.” Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611.

Although section 2 — 611 is penal in nature and must be strictly construed according to its terms (Mancuso v. Beach (1986), 149 Ill. App. 3d 188, 500 N.E.2d 589; Dayan v. McDonald’s Corp. (1984), 126 Ill. App. 3d 11, 466 N.E.2d 945, appeal denied (1984), 101 Ill. 2d 581), whether to award such fees and expenses, as well as the amount assessed, lies within the sound discretion of the trial court. (McCormick v. Louis Joliet Bank & Trust Co. (1983), 114 Ill. App. 3d 205, 448 N.E.2d 905, appeal denied (1983), 96 Ill. 2d 541.) Absent clear abuse of discretion by the trial court, an award of attorney fees pursuant to section 2 — 611 will not be disturbed. Whirlpool Corp. v. Bank of Naperville (1981), 97 Ill. App. 3d 139, 421 N.E.2d 1078; Williams v. City of Chicago (1977), 54 Ill. App. 3d 974, 370 N.E.2d 119.

As authority that the court improperly granted fees in this case, Barad cites In re Estate of Palm (1978), 11 Ill. App. 3d 24, 295 N.E.2d 580, and Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 518 N.E.2d 424. Both cases are distinguishable from the instant case. In In re Estate of Palm the court held that a hearing was required to determine the sufficiency of the section 41 (the predecessor of section 2 — 611) claim. That case is authority for the proposition that the petition and time summary alone were inadequate to justify the award of fees without a hearing. (In re Estate of Palm (1973), 11 Ill. App. 3d 24, 29, 295 N.E.2d 580.) In the instant case, a hearing, during which there was full opportunity for cross-examination, was held.

In Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 518 N.E.2d 434, a case founded upon a contractual agreement for costs and attorney fees due to litigation, the court denied some of the attorney fees because of the vagueness of the petition. In that case, where no hearing was held, the time summary and client billing was provided to the court without dates, without the subject matter of the work, and without identifying the attorney who performed the work. (Kaiser v. MEPC, 164 Ill. App. 3d at 985.) In the case at bar, where a hearing with full cross-examination occurred, the petition differed substantially from that in Kaiser.

In the instant case, the petition alleged that Barad failed to state the truth in his answer which included the affirmative defense and in his trial court testimony. The time summary submitted by Martinez stated only one attorney’s time and rate, and gave specifics as to each entry. The hours and minutes spent on each task were indicated alongside of each entry. Moreover, at the section 2 — 611 hearing, during cross-examination by Barad’s attorney, the attorney for Martinez clarified and supported the time as being only his and stated how, when, and why the costs were due to Barad’s false pleadings and testimony, the cornerstone of the entire lawsuit.

The requirements of section 2 — 611 petition were explained by this court in a case analogous to this one, Embassy/Main Auto Leasing Co. v. C.A.R. Leasing, Inc. (1987), 155 Ill. App. 3d 427, 508 N.E.2d 331, appeal denied (1987), 116 Ill. 2d 553, 515 N.E.2d 106. That case involved an appeal by a defendant who argued that the circuit court’s award of section 2 — 611 fees and expenses was inappropriate because the plaintiff had failed to prove that the fees were actually incurred by reason of the untrue pleading and that the method the plaintiff used to arrive at the amounts was arbitrary and capricious. The court disagreed and found the defendant’s testimony to be false with no reasonable explanation. (Embassy/Main v. C.A.R. Leasing, 155 Ill. App. 3d at 434.) There, as here, the defendant complained that the time records of the plaintiff were too vague. The court acknowledged that the plaintiff’s attorney submitted generalized

time summaries, but recognized that most attorneys do not keep separate time sheets detailing which hours spent were directly caused by untrue pleadings and determined that it would be ludicrous to expect them to do so. (Embassy/Main v. C.A.R. Leasing, 155 Ill. App. 3d at 435, citing Dayan v. McDonald’s Corp. (1984), 126 Ill. App. 3d 11, 466 N.E.2d 945, appeal denied (1984), 101 Ill. 2d 581.) The court held that the defendant did not clearly show that the circuit court abused its discretion in awarding plaintiff’s fees. Embassy/Main v. C.A.R. Leasing, 155 Ill. App. 3d at 435.

We conclude that the petition and time summaries submitted by Martinez were adequately specific. The circuit court did not abuse its discretion when, based upon the petition and the testimony it heard, it awarded attorney fees.

II

Barad argues that the section 2 — 611 hearing conducted by the circuit court consisted entirely of colloquy between the court and counsel and was an inadequate basis for the award of attorney fees. On the other hand, Martinez asserts that a full and complete hearing was held, which allowed for testimony and cross-examination. He contends that the opportunity for each party to cross-examine the other concerning the petition and time summaries was sufficient for a section 2 — 611 hearing.

To invoke section 2 — 611 sanctions, a hearing is necessary to determine whether an untrue statement was made without reasonable cause. (Great Western Sugar Co. v. White Stokes Co. (7th Cir. 1984), 736 F.2d 428; Schnack v. Crumley (1982), 103 Ill. App. 3d 1000, 431 N.E.2d 1364.) The person asking for fees and costs has the burden of proof. (Thorsen v. City of Chicago (1979), 74 Ill. App. 3d 98, 392 N.E.2d 716.) However, if proof can be made on the basis of pleadings or trial evidence, an additional hearing is not required. Grover v. Commonwealth Plaza Condominium Association (1979), 76 Ill. App. 3d 500, 394 N.E.2d 1273.

In Voss v. Lakefront Realty Corp. (1977), 48 Ill. App. 3d 56, 365 N.E.2d 347, the court determined that a complete hearing concerning the defendant’s motion for taxation of costs and attorney fees is unnecessary when it would virtually involve a retrial of all the basic issues already tried. In this case, as in Voss, it was unnecessary to retry the issue of false testimony, which had already been determined in the underlying lawsuit.

In the instant case, Martinez utilized the prior court testimony of Barad and the findings of the court as evidence in support of his petition. The circuit court determined, after presiding over every aspect of the litigation, including the trial, that Barad had pleaded and testified falsely. These false statements related directly to the essence of Martinez’s suit. If, as Barad falsely contended, a lease had not been properly executed, specific performance could not be granted. The circuit court properly chose to accept pleadings, testimony, and findings from the underlying suit as proof of the falseness, instead of retrying the entire issue. Voss v. Lakefront, 48 Ill. App. 3d 56, 365 N.E.2d 347.

At the section 2 — 611 hearing, Barad urged that his false statements were reasonably made due to his age. He contends that he did not lie; he merely forgot that he had signed the lease and had agreed to an option to purchase with Martinez. We have reviewed the record and find adequate basis for the circuit court’s findings that Barad’s testimony was untrue and made without reasonable cause.

Once the court finds pleadings or statements were false and made without reasonable cause, it must determine the reasonableness of the fees incurred. An evidentiary hearing on the reasonableness of fees is required because the issue of reasonableness is a matter of proof which should be subject to cross-examination. (Brandel Realty Co. v. Olson (1987), 159 Ill. App. 3d 230, 512 N.E.2d 85.) An opportunity to cross-examine the opponent is essential to a fair hearing. Logue v. Marsh (1977), 50 Ill. App. 3d 493, 365 N.E.2d 1159.

In this case, Barad was afforded ample opportunity to cross-examine concerning the reasonableness of the fees. Based upon the facts elicited at the hearing, the court reduced the number of hours Martinez’s attorney indicated he spent as a result of Barad’s false testimony and reduced the hourly rate charged. The reduction of the amount requested by almost half demonstrates that the court considered matters developed during the hearing and properly exercised its discretion.

We find the circuit court held a proper hearing (Brandel Realty Co. v. Olson (1987), 159 Ill. App. 3d 230, 512 N.E.2d 85; Logue v. Marsh (1977), 50 Ill. App. 3d 493, 365 N.E.2d 1159) and did not abuse its discretion. Absent a clear showing of abuse of discretion (In re Application of Cook County Collector (1986), 144 Ill. App. 3d 604, 494 N.E.2d 536), this court will not disturb the circuit court’s award of fees.

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

Affirmed.

BILANDIC, P.J., and HARTMAN, J., concur.