text:
    IRVING ARNOLD, Plaintiff-Appellant, v. CONSOLIDATED RAILROAD CORPORATION, Defendant-Appellee.
    First District (6th Division)
    No. 1—90—2373
    Opinion filed March 20, 1992.

      Karlin & Fleisher and David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky, of counsel), for appellant.
    Michael C. Fedota and Timothy I. McArdle, both of Brinton & Fedota, of Chicago, for appellee.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court;

The plaintiff, Irving Arnold, appeals from an order entered granting summary judgment in favor of the defendant, Consolidated Railroad Corporation (Conrail). The sole issue is whether the plaintiff made a judicial admission that removed from a fact finder’s consideration the question of whether the defendant’s conduct was the proximate cause of the plaintiff’s injuries.

The plaintiff, Irving Arnold, was employed as a police officer by Conrail. On May 5, 1986, in the course of his employment, he was struck by a motorcycle while he was driving a patrol car owned by Conrail. He filed a complaint against Conrail, alleging that Conrail had violated the Federal Employers’ Liability Act (FELA) (45 USC §51 et seq. (1988)). In his second amended complaint he alleged that Conrail provided him with a company car that had a defective driver’s seat. The plaintiff alleged that the seat’s back support was broken, thus preventing him from sitting up straight and having adequate vision, and that the seat was “in a depressed condition forcing plaintiff to sit so low as to not have adequate vision of other vehicles.”

Conrail moved for summary judgment and attached excerpts from the plaintiff’s deposition. The judge allowed the motion for summary judgment and later denied the plaintiff’s motion to reconsider.

In his deposition, the plaintiff testified that on May 5, 1986, he was driving Conrail patrol car C3858-X, which had been his normal patrol vehicle for about one year. The driver’s seat of that car had a sag in the bottom cushion, and the back of the seat was tilted back at a 45 degree angle. He had reported the defective seat to Patrolman Frank Blazak, who was in charge of the cars.

The plaintiff began his shift at 4 p.m. At approximately 7:45 p.m., he was driving southbound on Stewart Avenue near its intersection with 61st Street in Chicago. He was part of a team of Conrail police officers escorting a train out of the yard.

He was traveling approximately 10 miles per hour as he approached the intersection of 61st and Stewart. When he arrived at the intersection, he stopped and put his patrol car in “park.” There was no traffic on Stewart or 61st Street. He looked to his left, above the viaduct and saw the rear end of the southbound train just clearing 61st Street. He had parked at this same intersection and watched the train depart the yard two or three times a day for the previous 20 years.

After the train passed 61st Street, he put his car in “drive” and started to proceed south. He looked once to his left and once to his right. As he looked to his left, he did not see any cars under the viaduct on 61st Street. He then testified as follows:

“Q. Did you have any trouble looking to your left or right prior to entering the intersection?
A. Well, I couldn’t see too good because, like I said, with the seat, I’m sitting back, I’m actually looking up; my view was blocked.
Q. But you proceeded anyway into the intersection—
A. Yes.
Q. —without knowing whether there was anything coming from the left or right?
A. Well, a car, I could see a car probably; but a motorcycle, no.
Q. But your testimony is you did look to the left?
A. Yes.
Q. For how long did you look to the left?
A. Just a few seconds.
Q. Did anything block your view as you looked to the left?
A. No.
Q. Did anything block your view as you looked to the right?
A. No.”

The plaintiff testified that he proceeded to enter the intersection, traveling at approximately two miles per hour; he did not depress the accelerator of his patrol car. He did not see or hear the motorcycle approaching his vehicle. His first indication of the presence of the motorcycle was upon impact. At the time of the impact, the plaintiff was looking southeast toward the viaduct over 61st Street, straight ahead and to his left. The motorcycle hit the center of the driver’s side door of the patrol car. The driver of the motorcycle flew through the window of the patrol car and landed in the plaintiff’s lap. The plaintiff was semi-conscious from the time of impact until he was taken to the hospital.

More of the plaintiff’s testimony is as follows:

“Q. Do you believe that unit 3858-X was defective in any way on the date of your accident?
A. Yes.
Q. How so?
A. The seat.
Q. How was the seat defective?
A. Well, it had a sag, the seat had a sag in it, the part you sit on; and the back rest, it leaned all the way back like a reclining chair, you were back like this here (indicating), in other words, I’m looking up this way (indicating).
* * *
Q. Prior to entering the intersection of Stewart and 61st, did you lean forward to look to the left and right?
A. Yes, I did.
Q. Did you have any trouble looking left or right?
A. Well, you get up and then, you’re back; yes.
Q. But when you leaned forward, did you see to the left and see to the right?
A. Yes.
Q. Other than the seat defect that you testified to, was the vehicle defective in any other way on the date of your accident?
A. No.
Q. How did the condition of the seat cause a motorcycle to hit your vehicle?
A. Well, it blocked part of my view.
Q. Anything else?
A. No.
Q. If you had seen the motorcycle sooner, could you have avoided the accident?
PLAINTIFF’S ATTORNEY: Objection, total speculation.
DEFENDANT’S ATTORNEY: Go ahead.
A. I doubt it.”

At the conclusion of the defendant’s attorney’s questions, the plaintiff testified as follows to the questions of his own attorney:

“Q. Just very quickly, Mr. Arnold, in response to one of Mr. Lewis’ questions regarding whether the accident could have been avoided if the seat wasn’t defective, if it wasn’t defective, as you have described, you would have been in a better position to see to your left, correct?
A. Correct.
Q. And if you were in a better position to see to your left, you would have been able to see a vehicle, be it a car or a motorcycle, approaching from the left, correct?
A. Correct.
Q. And if you were able to see that, then you wouldn’t have started out into the intersection, right?
A. Correct.
Q. And if you didn’t start out into the intersection, the accident would not have happened, would it?
A. That’s right.”

The defendant’s motion for summary judgment alleged that the plaintiff’s deposition testimony established that the defective seat in the patrol car was not the cause of his accident, because the plaintiff admitted that he leaned forward in his seat and was able to look both ways before he entered the intersection. The defendant also relied on the plaintiff's testimony that he could not have avoided this accident even if he had seen the motorcycle sooner. In addition to excerpts from the plaintiff’s deposition the defendant filed a sworn statement by another Conrail police officer, John Wilkins. Wilkins testified that he was parked 30 feet north of the intersection when the accident occurred. He said that he could see the plaintiff sitting in his vehicle, that the plaintiff was sitting normally, and that he saw the plaintiff look both ways before entering the intersection. He could not recall anything about the vehicle that obstructed the plaintiff’s vision.

We are uncertain of the specific ground upon which the trial judge based her summary judgment ruling. But in this court the defendant maintains that summary judgment was properly entered because of the testimony of the plaintiff that he “leaned forward and could see to the left and to the right and that even if he had seen the motorcycle sooner the accident could not have been avoided.” The defendant argues that the plaintiff’s testimony was a judicial admission and that the later questioning by the plaintiff’s attorney was an impermissible attempt to contradict the judicial admission.

At the outset, we express disagreement with the plaintiff’s argument that a party may not make a judicial admission in a discovery deposition. The case cited by the plaintiff, Trapkus v. Edstrom’s, Inc. (1986), 140 Ill. App. 3d 720, 489 N.E.2d 340, if it is to be interpreted as the plaintiff argues, is contrary to the greater weight of authority. See, e.g., Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1979), 71 Ill. App. 3d 562, 390 N.E.2d 60; Fountaine v. Hadlock (1971), 132 Ill. App. 2d 343, 270 N.E.2d 222.

The general rule provides that in order to qualify as a judicial admission, a statement must be clear, unequivocal and within a party’s personal knowledge. In addition, a party’s admission must be deliberate testimony relating to a concrete fact and not an inference or uncertain summary. (Derby Meadows Utility Co. v. Inter-Continental Real Estate (1990), 202 Ill. App. 3d 345, 559 N.E.2d 986.) The issue in this case, therefore, is reduced to this: Whether the plaintiff’s testimony that he doubted that he could have avoided the accident if he had “seen the motorcycle sooner” was a clear unequivocal statement relating to a concrete fact. (Emphasis added.) We judge that it was not.

The plaintiff had testified that he first became aware of the motorcycle at the time of impact. The only reasonable interpretation of the pivotal question, therefore, is that the plaintiff was asked if the accident could have been avoided if he had seen the motorcycle “sooner” than the time of impact. The imprecise term “sooner” could apply to a period of a split second as well as several minutes. The plaintiff’s answer could be interpreted to mean that he doubted that the accident could have been avoided if he had seen the motorcycle a second before the impact. In summary, the plaintiff was asked a hypothetical question, not a question calling for a statement of fact; the defendant’s question used an imprecise term; and the plaintiff gave an imprecise answer. Under no circumstances could his answer to the question asked be considered a judicial admission.

The principal cases relied on by the defendant are Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1979), 71 Ill. App. 3d 562, 390 N.E.2d 60, and Hansen v. Ruby Construction Co. (1987), 155 Ill. App. 3d 475, 508 N.E.2d 301. In Tom Olesker’s, the plaintiff was asked when he first learned of an allegedly libelous credit report generated by the defendant. When asked whether his first notice of the defamatory report was in January or February of 1969, he responded, “Yes — [cjould have, that’s right.” (71 Ill. App. 3d at 564.) Later in the deposition, referring to the report, the plaintiff was asked, “[Y]ou received [the report] here in Chicago?” He responded, “Right.” He was then asked, “In January or February of 1969?” He responded, “Un huh.” (71 Ill. App. 3d at 565-66.) In Hansen the plaintiff testified that he was “almost certain” that his heel had hooked on a rubber strip rather than a metal plate on a loading dock. He said he would “almost swear to that.” (Hansen, 155 Ill. App. 3d at 478.) After the defendant filed a motion for summary judgment asserting that no rubber strip was designed into the loading dock, the defendant filed an affidavit stating that he had tripped over a metal plate, rather than a rubber strip. In both Tom Olesker’s and Hansen the court held that the statements of the plaintiffs constituted clear and unequivocal statements of fact. Neither case is factually apposite here. Closer in point and support for the plaintiff’s position is Thomas v. Northington (1985), 134 Ill. App. 3d 141, 479 N.E.2d 976. In Thomas, the defendant was asked at trial to estimate the distance between his truck and the car in which the plaintiffs were riding. He testified that his truck was five to six feet behind the plaintiffs’ vehicle. The plaintiffs contended that this was a judicial admission of his negligence which supported a judgment n.o.v. in their favor. The appellate court rejected that contention and affirmed the judgment, stating: “[W]e believe that defendant, having been asked to estimate the distance between his vehicle and the car in which plaintiffs were riding, did not purport to speak with certitude, and his answer cannot be deemed to be a binding admission.” 134 Ill. App. 3d at 148.

The defendant seems to argue that we should not consider the rehabilitation of the plaintiff’s testimony because, the defendant maintains, the “plaintiff has attempted to negate the honest answers of his client by asking a series of leading questions at the conclusion of his deposition.” No objection was made to the questions; consequently, if the defendant is now objecting to the use of the leading questions, that objection is waived. Moreover, Supreme Court Rule 206(c) (134 Ill. 2d R. 206(c)) permits the questioning of a deponent as if under cross-examination by any party. For that reason, we believe we may properly consider the answers given by the plaintiff to questions by his own attorney.

Where a party has not made deliberate, repeated, unequivocal statements, it is possible, for purposes of a motion for summary judgment, to controvert the claimed admission made in those statements. (Young v. Pease (1983), 114 Ill. App. 3d 120, 448 N.E.2d 586.) In Schmall v. Village of Addison (1988), 171 Ill. App. 3d 344, 525 N.E.2d 258, the plaintiff’s expert testified at a deposition that, in his opinion, the defendant electric utility company had not violated any recognized standard rule or regulation. The defendant filed a motion for summary judgment based upon the deposition testimony of the plaintiff’s expert. The plaintiff then submitted the affidavit of the expert in which he sought to explain his previous testimony. The trial judge struck the affidavit and granted summary judgment. The appellate court reversed, holding that the plaintiff’s expert was entitled to explain his previous deposition testimony. See also Tongate v. Wyeth Laboratories (1991), 220 Ill. App. 3d 952, 580 N.E.2d 1220.

It is our position that the subsequent questions by the plaintiff’s attorney removed any inference that the plaintiff could not have avoided the accident even if the seat had not been defective. So that our position is clear, however, we express the view that even in the absence of the rehabilitation by his attorney, the answer the plaintiff gave to the hypothetical question asked by the defendant’s attorney was not a judicial admission and could not support the order of summary judgment.

For these reasons, the judgment of the circuit court is reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

McNAMARA and LaPORTA, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE EGAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEVESTER BOWMAN, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—3136
    Opinion filed March 20, 1992.

      Michael J. Pelletier and Maria A. Harrigan, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Catherine A. Hufford, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The defendant, Levester Bowman, was convicted of delivery of a controlled substance, phencyclidine (POP), and was sentenced to a three-year term to be followed by two years of supervision. He contends that he was denied effective assistance of counsel; that he did not knowingly waive his right to a jury trial; and that various trial errors occurred. He does not contend that he was not proved guilty beyond a reasonable doubt.

Chicago police officer Sandra Cunningham was assigned to the Street Narcotics Impact Program. Her duties involved purchasing narcotics in an undercover capacity and acting as a surveillance officer when other officers were making a narcotics buy. Under the general procedure, when a buy was made one officer would make the buy and others would hide out and watch.

Cunningham testified that on January 11, 1989, she met with Officers Struska, Littleton, and Ryan and Sergeant Malloy. After their meeting she drove in her undercover vehicle to 5925 South Wentworth in Chicago. Before she drove to that location, she checked her car for contraband, as she routinely did, and found nothing. Upon arriving at 5925 South Wentworth, she saw the defendant standing around the El tracks, and she put her fingers to her mouth as if she were smoking a cigarette. She knew the defendant; she had made a purchase of PCP from him in June 1988 at the same location. The defendant then approached the car on the passenger side.

She asked the defendant if he had any “Sherm Sticks,” which is the slang term for cigarettes which have been dipped into PCP. The defendant asked her how many packages she needed, and when she said, “One,” he pulled out one package from a vinyl bag he was carrying. She then told the defendant to put the package on the seat; she could smell the PCP, and she did not want to get the substance on her hands. The defendant put the package on the passenger seat, and Cunningham gave him $10 which was marked with Cunningham’s first initial. The defendant said he would be around later that day, and Cunningham then drove to a prearranged location at 57th and Wentworth to meet with the surveillance officers. She told the other officers about the purchase, showed them the “Sherm Stick” and had the package inventoried and sent to the Chicago police department crime laboratory to be analyzed. She did not arrest the defendant. She made an in-court identification of the defendant, and described him as having “Jheri” curls at the time of the sale. Shortly after the purchase of PCP from the defendant in June 1988, Cunningham learned the defendant’s name, address and date of birth and saw a photograph of him.

It was stipulated that the chemical analysis of the “Sherm Stick” disclosed PCP. The defense called Officer Gary Struska, who was one of the surveillance officers. He testified that he and his partner, Kevin Ryan, were at 59th and Wentworth at approximately 1 p.m. They were watching the corner of 59th and Wentworth from an overpass on 59th Street in an unmarked squad car. From their position, Struska saw the defendant standing by the tracks and observed that there were a bunch of other people on the corner. Struska and his partner were double-parked for approximately 15 minutes when they observed Cunningham pull up 200 feet away. The defendant approached Cunningham’s car at 5925 Wentworth from the passenger side. The defendant had a short conversation with her, reached inside the car and then walked away. The transaction took less than one minute. Struska and Ryan then drove to the prearranged location to meet the other officers at 57th and Wentworth. After Cunningham showed Struska the package she bought from the defendant, which he determined was adulterated PGP, they went to the station to do the paperwork. The prearranged location at the intersection of 57th and Wentworth is two blocks from the site of the alleged buy and may be observed from the buy site.

After Struska testified, the defendant’s attorney informed the judge that he wanted the opportunity to present some witnesses to testify that the defendant was not at 59th and Wentworth at the time Cunningham had testified he was. The judge informed the defendant of his absolute right to testify or not, and the hearing was continued to the following day in order to allow the defendant to bring in his witness. When the defendant’s alibi witness, Andre King, failed to show up the following day, the defendant testified.

The defendant said that on January 11, 1989, at 1 p.m. he was in a car on his way to work. He was employed at the McDonald’s in Des Plaines, and his boss, Andre King, picked him up at the Amoco gas station on 59th and Wentworth to drive him to work. King routinely gave the defendant rides to and from work. He said that he had never seen the package containing the “Sherm Stick” before and did not know what a “Sherm Stick” was. He said he had never seen Officer Cunningham before. He was not arrested on January 11, 1989, but he did receive a letter in the mail telling him to report to the presiding judge of the criminal court. He was never placed in a lineup, and he denied having ever delivered a controlled substance to any police officer.

On cross-examination he denied starting work at 5 p.m. on January 11, 1989, even though that was the time he was supposed to start. He admitted being aware of the fact that his employment records showed that he punched in at 5 p.m., but he said he punched in early that day. He said that sometimes he would go to work early and then ask to punch in early so that he could make extra money.

Following the defendant’s testimony, Andre King was still absent. The defendant asked for a continuance, which the judge agreed to give, but the defendant then rested his case. He was found guilty, and his motion for a new trial was denied.

The defendant first contends that he did not knowingly waive his right to a jury trial because there was no attempt made by the judge to explain the difference between a jury trial and a bench trial. The determination of whether a defendant has knowingly waived his right to a jury trial cannot rest on any precise formula and necessarily turns on the facts and circumstances of each case. (People v. Frey (1984), 103 Ill. 2d 327, 469 N.E.2d 195.) Recognizing that a defendant typically speaks and acts through his attorney, reviewing courts have accepted the validity of jury waivers made by defense counsel in the presence of the defendant where the defendant gave no indication of any objection to the trial judge hearing the case. (People v. Murrell (1975), 60 Ill. 2d 287, 326 N.E.2d 762; People v. Sailor (1969), 43 Ill. 2d 256, 253 N.E.2d 397.) In Murrell and Sailor, the defense attorney’s single statement that the defendant was waiving a jury was held to constitute a valid waiver since the defendant was present and failed to object.

In the case before us, the trial judge determined that the defendant had waived his right to a jury trial based upon the following exchange:

“[JUDGE]: Mr. Bowman, this comes on call for trial. Your attorney has said that you want to give up your right to a jury trial and have this court decide the matter. Is that true?
[DEFENDANT]: Yes, sir.
[JUDGE]: Do you know what a jury trial is, sir?
[DEFENDANT]: Yes, sir.
[JUDGE]: You have an absolute right to a jury trial unless you decide to give that up in open court. Do you understand that?
[DEFENDANT]: Yes, sir.
[JUDGE]: If you want to give up your right to a jury trial, sign the written jury waiver there.
[DEFENSE ATTORNEY]: Mr. Bowman, this is the jury waiver that I discussed with you earlier. By signing that you give up your right to a jury trial.”

The defendant then signed the written jury waiver. We hold that the record supports a finding that the defendant knowingly waived his right to a trial by jury. See People v. Frey (1984), 103 Ill. 2d 327, 469 N.E.2d 195; People v. Villareal (1983), 114 Ill. App. 3d 389, 449 N.E.2d 198.

The two cases cited by the defendant, People v. Sebag (1982), 110 Ill. App. 3d 821, 443 N.E.2d 25, and People v. Miller (1977), 55 Ill. App. 3d 1047, 371 N.E .2d 917, are factually inapposite. In both Sebag and Miller, the defendants were not represented by counsel at any stage in the proceedings. In Sebag, the trial judge did not ask the defendant whether he understood what a jury was; he told the defendant only that by waiving a jury at that time the defendant could not reinstate it later. In Miller, the defendant was not finandally eligible for a public defender, and the judge never made any inquiries concerning the defendant’s knowledge of his right to a jury trial. The judge asked only whether the defendant wanted to waive his right to a jury trial, and when the defendant said that he did, the trial began.

The defendant next contends that he was denied his sixth amendment right to effective assistance of counsel. He claims that his attorney failed to object to the introduction of evidence of other crimes; did not object to the failure of the prosecutor to perfect his impeachment of the defendant; refused the trial judge’s offer to continue the case in order to secure the presence of an alibi witness; and called a police officer as a defense witness who bolstered the State’s case.

Any claim of ineffectiveness of counsel depends on “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Strickland v. Washington (1984), 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692-93, 104 S. Ct. 2052, 2064.) Under Strickland, the defendant must show that his counsel’s performance was below an objective standard of reasonableness and that there was a reasonable probability the result of the proceedings would have been different but for counsel’s errors. The defendant has the burden of showing actual incompetence and prejudice. People v. Puente (1984), 125 Ill. App. 3d 152, 465 N.E.2d 682.

Cunningham was asked on direct examination whether she had ever seen the defendant before January 11, 1989. She answered that she first saw the defendant in June 1988 when she made a “purchase from him in the same manner at the same address.” The defense attorney did not object to the question or answer. Evidence of other crimes may be shown if it is relevant for any purpose other than to show propensity to commit crime. (People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821; People v. Brown (1990), 199 Ill. App. 3d 860, 557 N.E.2d 611.) All cases recognize that when the identification of the defendant is an issue, evidence of another crime which would bolster the identification is proper. In People v. Cole (1963), 29 Ill. 2d 501, 194 N.E.2d 269, an agent testified that he had previously purchased narcotics from the defendant. The supreme court held that evidence of the prior transactions was properly admitted because it strengthened the agent’s identification of the defendant and tended to remove any doubt that the defendant’s conduct was inadvertent or innocent. The court further noted that the evidence showed the relationship between the agent and the defendant and thus lent credence to the otherwise unrealistic ease with which the agent managed the sale. (See also People v. Vazquez (1989), 180 Ill. App. 3d 270, 535 N.E.2d 981; People v. Borawski (1978), 61 Ill. App. 3d 774, 378 N.E.2d 255.) We judge, therefore, that the previous sale made by the defendant to Cunningham was admissible and that any objection to that evidence by the defense attorney would have been properly overruled. Consequently, it cannot be held that his failure to object constituted ineffective assistance.

The defendant next maintains that his attorney’s failure to object to the cross-examination of the defendant constituted ineffective assistance. The defendant testified on direct examination that it would have been impossible for him to have sold PCP to Cunningham at 1 p.m. on January 11, 1989, because he was on his way to work at that time. During cross-examination it was brought out that the defendant’s attorney had shown him his employment records. It was also established that he was supposed to start work at 5 p.m. on January 11. He testified that Andre King picked him up at 1 p.m. and that he was going to start work early that day. He admitted that the employment records showed that he punched in at 5 p.m., but he insisted that he “punched in early.” We conclude that there was no error in the cross-examination because the defendant admitted what the employment records showed. For the same reason, we conclude that there was no error in the State’s failure to introduce the employment records, and there was no error in the judge’s summation expressing a finding that the employment records contradicted the defendant.

After Officer Struska’s testimony, the defendant’s attorney indicated that he wished to call Andre King to testify. The attorney informed the judge that he had attempted to contact King, but all attempts had failed. At the defendant’s request, the judge continued the case to the following morning. King did not show up that morning, and after a brief recess the defendant took the stand. By the end of the defendant’s testimony, King still had not appeared. The defendant’s attorney told the judge that he had talked to King the previous day and tried to contact him again during the recess. King could not be found, and it did not appear that he was going to show up. The defendant’s attorney then decided to rest his case with the defendant’s approval.

The defendant has not established that his attorney’s failure to produce Andre King constituted ineffective assistance. The flaw in the defendant’s argument is contained in his brief in which he alleges that King “would have corroborated the defendant’s testimony.” By no means can we assume that King would have testified that he, the defendant’s supervisor, picked him up at 1 p.m. and had him punch in at 5 p.m. even though King knew the defendant had begun working earlier than 5 p.m.

The cases the defendant cites, People v. Barry (1990), 202 Ill. App. 3d 212, 559 N.E.2d 919, and People v. Garza (1989), 180 Ill. App. 3d 263, 535 N.E.2d 968, do not support his position. In Garza, the appellate court’s reversal centered on the defendant’s attorney’s failure to use impeaching evidence in cross-examining the only identification witness. It was apparently conceded that the defendant’s witnesses would have corroborated his defense. In Barry, the trial judge granted the defendant’s post-conviction petition after the defendant’s trial attorney testified that he did not interview the witnesses named by the defendant before trial. It was established at the post-conviction hearing that the witnesses “would corroborate defendant’s theory of defense.” Barry, 202 Ill. App. 3d at 217.

The defendant’s last claim of ineffective assistance of counsel is based on the fact that his trial attorney called Officer Struska whose testimony, he argues, corroborated the testimony of Cunningham. It is true that Struska’s testimony did corroborate the identification of Cunningham. But we fail to see any prejudice to the defendant because Struska’s testimony could have been introduced by the State. It might have been permitted to be introduced in rebuttal.

The defendant’s attorney was also attempting to show that the surveillance plan to which Cunningham had testified was poorly conceived. To some extent, the defendant’s attorney was successful. He elicited the fact that Struska’s surveillance point was on the overpass of an expressway looking at 5925 Wentworth at an angle and that the unmarked car Struska was in had been double-parked on 59th Street for approximately 20 to 25 minutes. Struska admitted that 59th Street was a busy street at 1 p.m., and there were cars turning onto 59th Street from both Wells and Wentworth along with the cars that continued on 59th Street. Those facts, it could be fairly argued, raised a doubt as to the officer’s ability to view the location where the defendant allegedly made the sale.

In addition, the defendant’s attorney attempted, through Struska, to create a reasonable doubt about the transaction itself. He questioned the fact that the unmarked squad car remained double-parked on a busy street, only 200 feet from where the transaction was taking place. Again, arguably, this would have looked suspicious to someone involved in drug trafficking, a suspicion which could have deterred the sale. The defendant’s attorney also questioned the fact that the prearranged meeting place after the drug buy was only two blocks away on 57th and Wentworth and within eye view of the area where the sale took place. We conclude, therefore, that the defendant has failed to establish ineffective assistance of counsel that would require a new trial.

The defendant’s last claim is that he was improperly sentenced for a Class 2 felony when the indictment charged the defendant with a Class 3 felony. The State acknowledges that a typographical error in the indictment caused the defendant to be improperly sentenced. It is clear from the record that the judge intended that the defendant be incarcerated for the minimum period of time. We therefore reduce the sentence and impose a sentence of two years’ imprisonment to be followed by a mandatory period of one year’s supervision.

For these reasons, the judgment of conviction is affirmed and the sentence is modified.

Judgment affirmed in part and modified in part.

RAKOWSKI and LaPORTA, JJ., concur.


author: JUSTICE LORENZ

text:
    BERNARD HEWITT et al., Plaintiffs-Appellants and Cross-Appellees, v. MILDRED HURWITZ, Ex’r of the Estate of Paul Hurwitz, Deceased, Defendant-Appellee and Cross-Appellant (La Salle National Bank, as Trustee, Defendant).
    First District (5th Division)
    No. 1—90—2301
    Opinion filed March 20, 1992.

      Donald L. Bertelle, of Chicago, for appellants.
    Herbert N. Sirott, of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiffs Bernard Hewitt and Ruberta Karasik, executor of the estate of Sidney Z. Karasik, appeal from judgment entered after a bench trial finding that a partnership existed to purchase and develop certain property and that the property in question had a fair market value of $660,000. Defendant Mildred Hurwitz, executor of the estate of Paul Hurwitz, cross-appeals from the same judgment. We consider whether the trial judge’s finding as to the value of the partnership’s property was against the manifest weight of the evidence. For the following reasons, we reverse and remand for new trial.

Plaintiffs filed a three-count complaint against defendant as the executor of Paul Hurwitz’ estate. The complaint alleged that Hewitt, Karasik, and Hurwitz, who was Hewitt’s brother, orally agreed to form a joint venture to purchase and develop certain property. Hewitt had a 50% share of the profits and losses of the joint venture, and Karasik and Hurwitz each had a 25% share. They purchased the property in 1978 and placed it in trust for their benefit with defendant La Salle National Bank. On July 17, 1986, Hurwitz died. In count I of the complaint, plaintiffs sought a declaratory judgment that the joint venture dissolved with the death of Hurwitz. Count II was disposed of by an agreed order and is not relevant on appeal. In count III, plaintiffs requested an accounting of the joint venture and a determination of the value of Hurwitz’ interest.

Defendant answered the complaint denying its material allegations and filed a counterclaim, alleging breach of fiduciary duty, which is not at issue on appeal.

In a bench trial, Hewitt testified on plaintiffs’ behalf that he, Karasik, and Hurwitz orally agreed to purchase four acres of land in unincorporated Cook County and develop it as a multi-unit residential complex. In 1978, they obtained a mortgage for $165,000 and purchased the property for $175,000. The property was subsequently annexed to the Village of Mount Prospect, which passed an ordinance in 1978 granting plaintiffs a special use permit to build 88 units. Due to economic conditions, the property was not developed by the time of Hurwitz’ death on July 17, 1986. Hewitt testified that at that time, there was some dispute as to whether the village would restrict construction to only 64 units as allowed under its building code. In the end of 1986, the issue was resolved and the village allowed plaintiffs to build 88 units. In 1987, Hewitt entered into an agreement with Albert Katz under which Katz would pay the $165,000 mortgage on the property in exchange for 22 rented apartments in the completed project. After the mortgage was paid, Hewitt owned 25% of the joint venture.

Norman Shapiro, an accountant who prepared the joint venture’s tax returns, testified that on October 1, 1987, Katz paid the $165,000 mortgage on the property and obtained half of Hewitt’s interest which was 25% of the joint venture. Katz’ capital account with the venture was credited $165,000. A tax return for 1987 showed that Katz acquired a 25% interest in the venture.

Plaintiffs also called Neil King, an expert in the area of real estate appraisals, who appraised the property on three different occasions. In 1982, he determined that the value of the property was $2,000 per unit or $128,000. At that time, King was not aware that plaintiffs and Hurwitz purchased the property in 1978 for $175,000, although he admitted purchase price is a factor to consider in an appraisal. In December of 1985, he found its value decreased to $1,500 per unit or $96,000 because negative factors affecting the value intensified, such as increased truck traffic.

Subsequently, King appraised the property a third time and determined that its value on July 17, 1986, the date of Hurwitz’ death, was $2,000 per unit or $128,000. King determined that the property was zoned for 16 units per acre for a total of 64 units. King based the appraisal on several factors. The property was an unusual shape because it was long and narrow with only 164 feet of frontage. Also, although there were apartment buildings near the property, King considered the uses of other nearby properties as negative factors affecting the appraisal. Immediately to the south of the property was a bus storage facility and immediately to the west were electricity power lines. In the immediate vicinity of the property was a disposal company and a large oil tank farm.

King also based the appraisal on sales of similar properties. However, there were no recent sales of property zoned for multiunit use in the immediate area, and as a result, he relied on the sales of four undeveloped properties located in Wood Dale, Arlington Heights, Palatine, and Buffalo Grove. The sales of those properties ranged from $4,444 to $6,500 per unit on lots ranging from 16 acres to 55 acres with zoning ordinances allowing for 10 to 14.75 units per acre. King testified that these properties were more valuable than the property in question because they were in better locations and the applicable zoning ordinances allowed fewer units per acre.

On defendant’s behalf, Theodore R. Kowalski testified as an expert real estate appraiser. In his opinion, the property had a fair market value of $750,000 on July 18, 1986, the day after Hurwitz died. He based his opinion on the characteristics of the property, an ordinance allowing for the construction of 88 units, the uses of adjoining properties, and the general trend of real estate in the area. Kowalski testified that a 25% interest in the property was sold in October of 1987 for $165,000 and that a minority interest would generally be sold at a discounted price of 10% to 25%. As a result, the sale corroborated his opinion that the value of the entire property was $750,000. Kowalski also testified that the property appreciated between 10% to 15% annually. Additionally, an apartment complex with 300 units immediately to the north of the property sold for $12,100,000 in August of 1988. That sale, although involving improved property, indicated there was a demand for property in the area.

Plaintiffs called King as a rebuttal witness. King testified that the sale of the adjacent property for $12,100,000 did not indicate the value of the property in question because it was improved with 11 buildings containing 300 units, a swimming pool, and tennis courts.

After closing arguments, the trial judge found that plaintiffs and Hurwitz were either joint venturers or partners. He rejected both expert witnesses’ opinions on the value of the property finding they did not have reasonable bases for their opinions. He also believed that the sales of other properties presented by plaintiffs and defendant were not comparable to the property in question. The judge found that the value of the property at the time of Hurwitz’ death on July 17, 1986, was $660,000 based on the evidence that Katz purchased a 25% share of the joint venture for $165,000 in October of 1987. An order was entered stating that the parties were partners in the acquisition and development of the property and that the fair market value of the property at the time of Hurwitz’ death was $660,000.

Plaintiffs’ post-trial motion was denied and they now appeal. Defendant cross-appeals.

Opinion

Plaintiffs challenge the trial judge’s finding that the fair market value of the property on July 17, 1986, was $660,000. The judge based his finding on the sale of a 25% interest in the partnership for $165,000 to Katz in October of 1987. Plaintiffs argue that the judge improperly rejected the testimony of their expert and that the finding as to the value of the property was not based on the evidence because the sale to Katz was not for the property but for an interest in the partnership.

Defendant responds that the judge properly rejected the testimony of plaintiffs’ expert. Also, defendant contends that the judge’s finding as to the value of the property was supported by the evidence because the property was the partnership’s only asset and, therefore, the sale to Katz of a 25% interest in the partnership was the equivalent of a 25% interest in the property.

In a bench trial, the judge must determine the credibility of an expert witness and the weight of his testimony but the judge is not bound to accept the expert’s opinion. (Rybak v. Provenzale (1989), 181 Ill. App. 3d 884, 537 N.E.2d 1321.) The trial judge’s findings, especially those involving credibility determinations, are entitled to deference. (Zaderaka v. Illinois Human Rights Comm’n (1989), 131 Ill. 2d 172, 545 N.E.2d 684.) A reviewing court cannot reverse the decision of a trial court after a bench trial merely because it would have reached a different conclusion; however, the decision should be reversed if it was against the manifest weight of the evidence. (In re Application of County Treasurer (1989), 131 Ill. 2d 541, 546 N.E.2d 506.) A judgment is against the manifest weight of the evidence when the opposite conclusion is clearly evident. Fleisher v. Lettvin (1990), 199 Ill. App. 3d 504, 557 N.E.2d 383.

In this case, the trial judge rejected the testimony of both experts whose opinions differed greatly as to the fair market value of the property. From a review of their testimony, the judge’s finding was not erroneous.

Plaintiffs’ expert, King, testified that the property was worth $128,000 and focused on the negative aspects of the property, such as its unusual shape and its proximity to a bus storage facility and power lines. King acknowledged, but apparently did not consider it significant, that there were several other apartment buildings on the same street in the immediate vicinity of the property. Also, King initially appraised the property in 1982 at $128,000, appraised it again in December of 1985 at $96,000, and then reappraised it at $128,000 in July of 1986. When he first appraised the property in 1982, he did not consider its purchase price in 1978, although purchase price is a factor to consider in an appraisal. Further, when he appraised the property for a second time in December of 1985, he found its value decreased to $96,000 because negative factors affecting the appraisal intensified. However, six months later, King found the property’s value increased to $128,000, although he conceded that the negative factors were still present. This testimony as to the fluctuating value of the property within a six-month period, without a solid explanation for it, affected King’s credibility even though the increased value benefited defendant slightly. Additionally, each time King appraised the property it was less than the price the partnership paid for it in 1978. King also relied on sales of comparable property in nearby towns ranging from $4,444 to $6,500 per unit but appraised plaintiffs’ property at $2,000 per unit. The trial judge may not have accepted King’s explanation that the other properties were more desirable to justify valuing plaintiffs’ property at less than half the per unit price of those sales.

In contrast to King’s testimony, defendant’s expert, Kowalski, testified that the property was worth $750,000. Kowalski relied on the sale of an interest to Katz as if it were a partial sale of the property; however, Katz did not purchase an interest in the property but an interest in the partnership. Also, Kowalski relied on the sale of an adjacent apartment complex but that property was not comparable because it was improved and had 300 units.

For these reasons, it was well within the province of the trial judge to reject the experts’ testimony.

Instead of relying on the experts’ opinions, the judge relied on the sale of a 25% interest in the partnership to Katz for $165,000 in October of 1987 to establish the property’s fair market value in July of 1986.

The fair market value of property is the amount of money that a purchaser, willing but not obligated to buy the property, would pay an owner, willing but not obligated to sell the property, without taking into account the values or necessities peculiar to either party. (Reynolds v. Coleman (1988), 173 Ill. App. 3d 585, 527 N.E.2d 897.) Generally, the price paid for the property at a recent sale is the best evidence of value. In re Application of Busse (1984), 124 Ill. App. 3d 433, 464 N.E.2d 651.

Evidence of the purchase price of property may be relevant to determine its value, but in this case the transaction the judge relied on was not a conveyance of the property. The transaction was a sale for an interest in the partnership. Although the property was the only asset of the partnership, the sale of an interest in the partnership did not necessarily establish the fair market value of the property. The sale of an interest in the partnership may have been worth more or less than the sale of its only asset, the property, depending on the potential profit or loss from the development of the property and other considerations. As a result, the trial judge’s reliance on the sale of an interest in the partnership to determine the value of the property was erroneous. For these reasons, the judge’s finding that the fair market value of the property was $660,000 on the date of Hurwitz’ death was against the manifest weight of the evidence. This decision should not be interpreted as an indication that the property was worth more or less than $660,000 but only that the trial judge’s finding was not supported by the evidence.

In her cross-appeal, defendant requests this court to enter judgment against plaintiffs directing them to pay defendant Hurwitz’ share of the partnership. Based on our decision that the valuation of the property was against the manifest weight of the evidence, defendant’s request must be denied.

Reversed and remanded for new trial.

McNULTY, P.J., and MURRAY, J., concur.


author: JUSTICE GORDON

text:
    ALLAN ENBLOM, Plaintiff, v. MILWAUKEE GOLF DEVELOPMENT, Defendant and Third-Party Plaintiff-Appellant (Inland Construction Company, Third-Party Defendant-Appellee).
    First District (5th Division)
    No. 1—90—0713
    Opinion filed March 20, 1992.

      Charles F. Redden, of Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Andrew G. Witik, of counsel), for appellant.
    Robert L. Bartolone and Sandra Young, both of Purcell & Wardrope, Chartered, of Chicago, for appellee.
   JUSTICE GORDON

delivered the opinion of the court:

Defendant and third-party plaintiff Milwaukee Golf Development (hereinafter Milwaukee Golf) appeals from the trial court’s denial of its motion to vacate the summary judgment entered for third-party defendant Inland Construction Company (hereinafter Inland) and from the denial of its motion for leave to file an amended third-party complaint against Inland. For the reasons set forth below, we affirm.

Facts

On September 10, 1986, plaintiff Allan Enblom filed a complaint against defendant Milwaukee Golf for injuries he suffered when he fell on May 5, 1985, at the Golf Mill Shopping Center owned by Milwaukee Golf. Plaintiff alleged that he was injured when he fell while walking along the public sidewalk in the shopping center in front of the Hermann’s Sporting Goods Store. Milwaukee Golf filed its answer to plaintiff’s complaint on October 15,1986, denying negligence.

On March 5, 1987, Milwaukee Golf was granted leave to file a third-party complaint against Inland. This complaint sought contribution from Inland, pursuant to the Joint Tortfeasors Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.). Milwaukee Golfs third-party complaint alleged that Inland was the general contractor performing work in and around the area of the shopping center where plaintiff fell.

The record does not indicate that Inland has filed an answer to Milwaukee Golf’s third-party complaint. In fact, Inland contends that it was never served with the third-party complaint. However, the supplemental record filed by Milwaukee Golf contains a summons and certificate of service indicating that Inland was served in the third-party action on March 19,1987.

Subsequent to the filing of Milwaukee Golf’s third-party complaint, plaintiff amended his complaint to add Inland as a defendant. On July 28, 1987, Inland filed its answer to plaintiff’s amended complaint, denying that it was performing construction work in the area where the plaintiff was injured at the time in question.

On July 13, 1988, Inland filed a motion for summary judgment directed at the plaintiff. The motion was accompanied by the affidavit of an executive and senior project manager of Inland, who stated that to his knowledge, Inland did not at any material time perform any construction work in the area where plaintiff was injured. He further stated that he believed that another contractor, Ragnar Benson, was the contractor performing the construction services alleged in plaintiff’s amended complaint.

On July 21, 1988, Milwaukee Golf did not appear at a hearing on Inland’s motion for summary judgment, and the motion was continued. On July 28, 1988, Milwaukee Golf again did not appear at the hearing, and the motion was again continued. On August 25, 1988, Milwaukee Golf was again absent. At this hearing, plaintiff’s counsel asked for an additional 28 days in order to learn from Milwaukee Golf’s attorney if Inland was the contractor involved at the site of plaintiff’s fall. The judge set the motion for a final status hearing on September 28,1988.

The record reveals that on August 30, 1988, counsel for Inland wrote to counsel for Milwaukee Golf, informing him that the motion had again been continued, and that a final hearing was to be held on September 28, 1988. The letter also requested that Milwaukee Golf provide any information it had which might contradict the affidavit supporting Inland’s summary judgment motion.

On September 22, 1988, counsel for Milwaukee Golf wrote to his client, asking for any information regarding construction work done by Ragnar Benson, the company which Inland said was working in the area when the plaintiff was injured. On September 27, 1988, Milwaukee Golf responded by sending a copy of its contract with Ragnar Benson to its attorneys. By the terms of that contract, Ragnar Benson did not begin work until June 1, 1985, almost a month after plaintiff was injured.

On September 28, 1988, counsel for Milwaukee Golf did not appear at the “final status” hearing on Inland’s motion for summary judgment. Inland’s motion for summary judgment against the plaintiff was granted. The order stated “all parties having due notice, Melvin Friedman [attorney for plaintiff] being present in court on behalf of the plaintiff *** that defendant Inland Construction Company is granted summary judgment in its favor and against plaintiff Allan Enblom.”

On October 6, 1988, attorneys for Milwaukee Golf wrote to Inland, indicating that contrary to the affidavit supporting Inland’s motion for summary judgment, Ragnar Benson was not working in the area when plaintiff was injured. Milwaukee Golf also requested a copy of the September 28,1988, order.

On January 6, 1989, Milwaukee Golf filed a motion to vacate the September 28, 1988, order granting summary judgment to Inland, and requested leave to file an amended third-party complaint. The proposed amended third-party complaint does not appear in the record. Submitted with the motion to vacate was an affidavit from Milwaukee Golf’s controller in which he stated that “a review of the contracts maintained by Milwaukee Golf Development Company shows that on May 5, 1985, Inland Construction Company was and had been acting as the general contractor on a construction project for the Main Street store. The Main Street store was and is immediately adjacent to the location of Plaintiff’s claimed fall: ‘near and at the entrance to Hermann’s World of Sporting Goods.’ ” A copy of the contract with Inland was also submitted with Milwaukee Golf’s motion. The affidavit also stated that a review of all the contracts maintained by Milwaukee Golf indicated that no other construction was being performed in the area at the time of plaintiff’s accident.

A hearing was held on February 15, 1989, to consider Milwaukee Golf’s motion to vacate the summary judgment order and for leave to file its amended third-party complaint. The motion was denied because Milwaukee Golf had not indicated why it could not have presented the proffered evidence at the time of the hearing on Inland’s motion. The following colloquy occurred:

“THE COURT: Are you bringing in evidence today that you would have presented then, but for the fact that nobody was here on behalf of Milwaukee, or are you presenting something that you did not have on that day?
MILWAUKEE GOLF COUNSEL: We are presenting something new that we didn’t have on that day.
THE COURT: Then do you lead in your motion why you didn’t have it then?
COUNSEL: Just that our investigation continued, and then we came up with it.
THE COURT: That’s no reason to vacate any order because you have to show — in other words there is no end to any trial or summary judgment hearing. And when you come in on a motion to vacate a judgment that has been entered by virtue of a fact motion, whether its a 1105 [sic] or 619, and present evidence, you have to indicate why you could not present that evidence at the time of the hearing. Without that, I have to deny your motion.”

On February 21, 1989, Milwaukee Golf filed a “motion for clarification and for reconsideration” of the February 15, 1989, ruling. Milwaukee Golf sought clarification as to whether the September 28, 1988, summary judgment applied to Milwaukee Golf as well as to plaintiff. At a hearing held September 25, 1989, this motion was also denied, the court ruling that it had already reconsidered its September 28, 1988, order granting summary judgment at the February 15, 1989, hearing. The court also refused to vacate its February 15, 1989, order denying Milwaukee Golf leave to file its amended third-party complaint.

Milwaukee Golf filed another motion on October 16, 1989, this one seeking to vacate the February 15, 1989, order and seeking leave to file its amended third-party complaint. On January 12, 1990, this motion was denied.

Finally, on February 20, 1990, Milwaukee Golf filed a motion to have the January 12, 1990, order made final and appealable. At a hearing on the motion, the judge ruled that he would make his February 15, 1989, order denying Milwaukee Golf’s motion to vacate the summary judgment and leave to file its amended third-party complaint appealable, and the court inserted the appropriate Rule 304(a) (134 Ill. 2d R. 304(a)) language.

Opinion

Although the parties have not raised the question of our jurisdiction to consider this appeal and in their briefs agree that jurisdiction exists under Rule 304(a) (134 Ill. 2d R. 304(a)), we must consider it. (Raglin v. HMO Illinois, Inc. (1991), 217 Ill. App. 3d 1076, 578 N.E.2d 108.) Were this matter before us solely on the question of the propriety of the denial of leave to file an amended third-party complaint, we would be without jurisdiction since such a denial would not constitute a “final judgment as to one or more but fewer than all of the parties or claims” (134 Ill. 2d R 304(a)), notwithstanding the Rule 304(a) language in the order. There is nothing in the record to indicate that the original third-party action has been disposed of. “The fact that an order contains that language does not make an otherwise nonfinal order appealable.” (Metzger v. Fitzsimmons (1988), 175 Ill. App. 3d 674, 675, 529 N.E.2d 1179.) At best, this appeal would be interlocutory only and there would be no showing of compliance with any of the requirements of Rule 308. 134 Ill. 2d R. 308. See also Camp v. Chicago Transit Authority (1980), 82 Ill. App. 3d 1107, 1111, 403 N.E.2d 704 (“[i]n order for the appellate court to choose whether it will hear an appeal from an interlocutory order, an application for permission to appeal must be filed with the clerk of the appellate court”).

However, Milwaukee Golf’s notice of appeal also includes the denial of its motion to vacate the summary judgment, an appeal over which we do have jurisdiction. While an order denying a post-judgment motion is not itself an appealable order (Sears v. Sears (1981), 85 Ill. 2d 253, 422 N.E.2d 610), we may consider the notice of appeal as also encompassing the summary judgment ruling. (See Ingle v. Hospital Sisters Health System (1986), 141 Ill. App. 3d 1057, 1060, 491 N.E.2d 139 (“we may treat the notice of appeal [purporting to be from the denial of the post-judgment motion for reconsideration] as a notice of appeal of the underlying judgment”).) In addition, the Rule 304(a) language which by its terms refers only to the post-judgment order denying the motion to vacate may also be considered as intended to cover the underlying summary judgment so as to make that order, which was final but unappealable, appealable. (Ingle, 141 Ill. App. 3d 1057, 491 N.E.2d 139.) Although Milwaukee Golf does not raise as an issue on appeal the initial propriety of the summary judgment ruling, yet as a result of concluding that the summary judgment is appealable, we may consider the denial of the motion to vacate that judgment, since “on appeal of the judgment the appellant may bring up all related orders entered before the notice of appeal and not previously appealable, including the denial of a post-judgment motion.” (Sears, 85 Ill. 2d at 258.) As a result of our determination that we have jurisdiction over the appeal of the denial of the motion to vacate the summary judgment, we have permitted ourselves to comment substantively on the issue of leave to amend due to the effect of the summary judgment on the motion for leave to amend.

It is Milwaukee Golf’s position that the sole reason leave to file the amended third-party complaint was denied was the delay in moving to amend. Milwaukee Golf argues that leave to amend should not be denied solely because of delay in seeking such leave, and that the trial court’s failure to consider the merits of the proposed amended complaint constituted an abuse of discretion. (Cvengros v. Liquid Carbonic Corp. (1981), 99 Ill. App. 3d 376, 425 N.E.2d 1050.) We agree with the Cvengros court that denial of leave to file an amended complaint solely because of delay in seeking such leave without a showing of prejudice other than mere inconvenience to the opposing party could be an abuse of discretion. (See also Merrill v. Drazek (1978), 58 Ill. App. 3d 455, 374 N.E.2d 792; Banks v. United Insurance Co. (1975), 28 Ill. App. 3d 60, 328 N.E.2d 167.) However, the record indicates that delay was not the sole reason for the denial here. Rather, by virtue of the summary judgment granted in Inland’s favor against the plaintiff, Milwaukee Golf is collaterally estopped from asserting a claim for contribution against Inland.

Parties do not have to be on opposite sides for collateral estoppel to apply. (Rose v. Dolejs (1955), 7 Ill. App. 2d 267, 129 N.E.2d 281.) Inland and Milwaukee Golf were codefendants under plaintiff’s amended complaint. Inland, in its role as defendant, was granted summary judgment against the plaintiff. The fact that Milwaukee Golf did not resist the efforts of its codefendant Inland to obtain summary judgment does not preclude the application of collateral estoppel to Milwaukee Golf’s third-party complaint for contribution. (See Karon v. E.H. Marhoeffer, Jr. Co. (1973), 14 Ill. App. 3d 274, 302 N.E.2d 478 (defendant who had notice and opportunity to participate in hearing on codefendant’s motion for summary judgment against plaintiff is collaterally estopped from bringing third-party suit against codefendant for indemnification). See also McLellan v. Columbus I-70 West Auto-Truckstop, Inc. (N.D. Ill. 1981), 525 E Supp. 1233; La Salle National Bank v. Fitzgerald (1973), 15 Ill. App. 3d 1016, 305 N.E.2d 355.) Milwaukee Golf has not argued that it did not have an opportunity to participate in the hearings on Inland’s motion, nor does it contend that it had no notice of the summary judgment motion. The order granting summary judgment for Inland specifically stated “all parties having due notice.” As a result, the summary judgment is conclusive against Milwaukee Golf.

The summary judgment in Inland’s favor against the plaintiff constitutes a determination that Inland is not liable to the plaintiff. Consequently, Milwaukee Golf is collaterally estopped from maintaining an action for contribution against Inland. Third-party liability in contribution can exist only where the party from whom contribution is sought is “subject to liability in tort” to the injured party. (Ill. Rev. Stat. 1987, ch. 70, par. 302(a) (“where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, *** there is a right of contribution among them.” (Emphasis added).) See also Jodelis v. Harris (1987), 118 Ill. 2d 482, 517 N.E.2d 1055.) It follows that there can be no cause of action for contribution from Inland to Milwaukee Golf since Inland has already been adjudged not liable to the plaintiff. (See McCombs v. Dexter (1989), 186 Ill. App. 3d 484, 486, 487, 542 N.E.2d 1245 (“the basis for a contribution claim is the potential liability of both the person seeking contribution and the person from whom contribution is sought”; where one codefendant was granted summary judgment, “the potential for [its] tort liability was extinguished *** [and] there is no longer any basis for *** contribution action”).) As a result, any third-party complaint against Inland for contribution must fail to state a cause of action.

Moreover, we note that the proposed amended third-party complaint is not included in the record on appeal. Inland correctly contends that this constitutes a waiver of Milwaukee Golf’s right to have this court consider the denial of leave to amend. Milwaukee Golf would urge that its failure to include the proposed pleading should not act as a waiver in view of the fact that the amendment was tendered to the trial court with the motion to vacate and for leave to amend, although the merits of the amended complaint were not considered due to the court’s ruling on the grounds of delay alone. However, the rule is clear that, without having the proposed amendment before us, we cannot review the trial court’s exercise of discretion blindly, but must assume that the refusal to permit the amendment was proper. Lowrey v. Malkowski (1960), 20 Ill. 2d 280, 285, 170 N.E.2d 147 (court held that it was “powerless to review the exercise of discretion by the trial judge, as plaintiffs have failed to incorporate their proffered amendment in their record on appeal”). See also Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 521, 513 N.E.2d 387; Teter v. Clemens (1986), 112 Ill. 2d 252, 260-61, 492 N.E.2d 1340.

Milwaukee Golf conceded in oral argument before this court that in order to file its amended third-party complaint, it is necessary to vacate the order for summary judgment granted to Inland. The question, therefore, is whether the court properly denied Milwaukee Golf’s motion to vacate the summary judgment order, and as discussed below, we conclude that it did.

A motion to vacate is timely if made within 30 days of the order to be vacated. (Cvengros v. Liquid Carbonic Corp., 99 Ill. App. 3d at 381.) Here, Milwaukee Golfs motion to vacate the September 28, 1988, grant of summary judgment was not filed until January 6, 1989, more than three months after entry of the order it sought to vacate. As a result, the motion was not timely.

In addition, Milwaukee Golf has offered no explanation other than its “continuing investigation” as to why the evidence presented in support of its motion to vacate was not presented earlier in opposition to Inland’s summary judgment motion. “The submission of a new matter on such a motion after a motion for summary judgment has been granted lies in the discretion of the trial court [citation], but it should not be allowed in the absence of a reasonable explanation of why it was not available at the time of the original hearing.” (Delgatto v. Brandon Associates, Ltd. (1989), 131 Ill. 2d 183, 195, 545 N.E.2d 689; see also Fister/Warren v. Basins, Inc. (1991), 217 Ill. App. 3d 958, 966, 578 N.E.2d 37.) Milwaukee Golf submitted the affidavit of its controller and its contract with Inland for construction at the store next door to the one where plaintiff was injured. Milwaukee Golf offered no reason other than its continuing investigation to explain why an affidavit of one of its own employees and the Inland contract which was presumable under Milwaukee Golf’s control were not presented earlier, either at the hearings on the summary judgment motion or within 30 days of the order granting summary judgment. There is nothing in the record to indicate that the Inland contract was unavailable to Milwaukee Golf prior to January of 1989 when it filed its motion to vacate. (See Kosten v. St. Anne’s Hospital (1985), 132 Ill. App. 3d 1073, 1080, 478 N.E.2d 464 (“[a] motion to vacate is properly denied where the evidence was in the movant’s possession and could have been presented prior to judgment”); see also Day v. Curtin (1989), 192 Ill. App. 3d 251, 548 N.E.2d 670.) Moreover, from the fact that Milwaukee Golf filed a third-party complaint against Inland in March of 1987, it is logical to assume that it was aware of the contract at that time. As a result, we find no abuse of discretion in the trial court’s denial of Milwaukee Golf’s motion to vacate the summary judgment.

Accordingly, for all the above reasons, the order of the circuit court of Cook County is affirmed.

Affirmed.

McNULTY, P.J., and LORENZ, J., concur.


text:
      In re ESTATE OF LAWRENCE BYRD, a Disabled Person (Allen Jackson, Sr., Plenary Guardian of the Estate and Person of Lawrence Byrd, Plaintiff-Appellant, v. Elliott Muse et al., Defendants-Appellees).
    First District (6th Division)
    No. 1—90—0645
    Opinion filed March 20, 1992.
    Rehearing denied April 22, 1992.

      Berton N. Ring, of Berton N. Ring & Associates, of Chicago, for appellant.
    Carol A. Johnson & Associates, of Chicago, for appellee Carol Johnson.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

Allen Jackson (Jackson) is the first cousin of Lawrence Byrd (Byrd); Gladys Jackson is his wife; they were tenants in Byrd’s building. Norma Brandon (Brandon) is the daughter of Lawrence Byrd. Allen Jackson and Norma Brandon separately petitioned to be named the guardian of the estate and person of Lawrence Byrd. After a trial, the judge granted Jackson’s petition and denied Brandon’s petition, but granted the petitions of Brandon’s attorneys for fees. Jackson appeals from the order granting fees. Brandon does not appeal from the orders granting Jackson’s petition and denying her petition.

On February 2, 1989, Mozelle Byrd, the mother of Lawrence Byrd, died. Ill will developed between the Jacksons and Brandon; they had been friendly before. Around the middle of February, Gladys Jackson drove Byrd to First National Bank of Chicago, where Byrd placed Gladys’ name on his bank accounts.

On April 16, Byrd signed a quitclaim deed to his property at 7828 South Prairie in Chicago naming Brandon as grantee. Brandon, who was bom out of wedlock, explained that her father felt remorseful about not having done more for her while she was growing up. She also explained that she and her father thought that he was merely placing her name on the property when he signed the deed.

On May 8, Gladys Jackson went to the First National Bank and removed approximately $150,000 from one of Byrd’s accounts on which she had had her name placed; she closed Byrd’s account and placed the money in an account which she held jointly with her husband. Allen Jackson testified that he did not know that she had not placed Byrd’s name on the joint account. Gladys Jackson testified that she understood the money to be hers to do with as she pleased.

On May 9, Byrd, accompanied by Brandon, went to the First National Bank of Chicago and discovered that Gladys Jackson had closed his account of approximately $150,000. While at the bank, Norma Brandon removed Gladys Jackson’s name from Byrd’s remaining accounts and placed her own name on the accounts. The following day Allen and Gladys Jackson took Byrd to see Dr. Vergara, who later provided the court with a report which alleged that Byrd was mentally incompetent. On May 12, Byrd, accompanied by Brandon, retained attorney Elliott Muse to file a petition in the chancery division of the circuit court naming the Jacksons as defendants seeking the return of the $150,000. On May 13, Brandon and Byrd went to the law office of attorney Vaughn Barber, accompanied by Byrd’s cousin, Luther Townsley. Byrd signed a document giving Brandon his power of attorney. On May 16, a judge of the chancery division of the circuit court entered a temporary restraining order against First National Bank of Chicago and the Jacksons to prevent the Jacksons from using or disposing of Byrd’s money.

On May 23, Allen Jackson filed a petition in the probate division of the circuit court asking that he be named guardian of Byrd’s estate and person; the court appointed Mark Schwartzman to be Byrd’s guardian ad litem. The following day Schwartzman informed Byrd and Brandon that a hearing was scheduled for May 25 in the probate division of the circuit court. Brandon and Byrd immediately contacted Carol Johnson and retained her to represent Byrd and to oppose the appointment of a guardian or, if guardianship was unavoidable, to represent Brandon in an attempt to have her appointed as guardian of his person and estate. Carol Johnson was paid a retainer fee of $1,000.

Johnson appeared at the hearing on May 25. The judge of the probate division was informed of the pending chancery case which had been filed to prevent the Jacksons from disposing of Byrd’s $150,000. The judge entered an agreed order restraining everyone from withdrawing any funds from any of Byrd’s accounts at First National Bank and Continental Bank. The judge also restrained Brandon from using the power of attorney or the deed to the property at 7828 South Prairie. The case was continued to June 29,1989.

After the hearing on May 25, Carol Johnson asked Brandon to take Byrd to a doctor to be examined for mental competency. Dr. Hoyland Ricks examined Byrd and diagnosed him as having a mild case of senility. Johnson then consulted with Dr. Samuel Johnson, who, based on the diagnosis given by Ricks, stated that Byrd would likely become incompetent within the next three to six months.

On June 29, an agreed order was entered adjudicating Byrd disabled. Brandon testified that she had taken a leave of absence from her job so that she could care for her father, as she had done the previous year when her mother became ill. The judge allowed Byrd to continue staying with her. The judge also allowed Brandon to receive, but to account for, Byrd’s personal pension checks totalling $1,809 per month.

On July 31, Jackson filed a petition for a rule to show cause which alleged that Brandon, unknown to her attorneys, had used Byrd’s bank accounts in Continental Bank.

On August 7, Brandon testified that she was unaware of any accounts which Byrd had at Continental Bank until a few days following the June 29 court date when Byrd was adjudicated disabled. She said that at that time, Byrd, knowing that Brandon was in need of money and knowing that she owed money to friends from whom she had borrowed during her mother’s illness, told her about accounts which he had at Continental Bank and suggested that she use some of that money to pay her bills and to repay her loans. Byrd and his cousin Townsley accompanied her to the bank. She testified that she believed that “disabled” meant that a person was unable to make decisions or give directions when that person was incoherent.

Brandon testified that she used Byrd’s car for personal reasons, used his funds to repair the car even though he did not drive, closed an account of Byrd’s containing $16,000 and put her name on the account. She also used Byrd’s funds to pay $2,250 of her attorney fees, parking tickets, rent, telephone bills, gas bills, electric bills, her daughter’s tuition at a private school and a beauty shop bill; she also made church donations with his funds.

On December 19, the judge entered an order naming Allen Jackson guardian of the estate and person of Byrd; he denied the counter-petition of Brandon to be named guardian; he also restrained Brandon from affecting any of Byrd’s assets.

On January 22, 1990, Elliott Muse filed a petition for fees, and Carol Johnson filed a petition for fees on January 31, 1990. On February 16, an agreed order was entered in which Brandon agreed to pay $4,500 to the estate to cover her own indebtedness. She did not admit to any wrongdoing, and the judge made no specific finding of wrongdoing. On February 28, the judge entered an order awarding Elliott Muse fees in the amount of $5,937 and Carol Johnson fees in the amount of $10,920. The order also recited that the fees should be paid by Byrd’s estate.

It is necessary to set forth the issues as the parties presented them to the trial judge and as they have presented them to us. Both Muse and Johnson filed verified petitions for fees. Muse alleged that he had been retained by Byrd and Brandon on May 12, and had performed services in the actions filed in the chancery and probate divisions. His petition contained an itemized breakdown of the time spent and the services he had rendered. Johnson’s verified petition alleged that she had been retained by Byrd before he was adjudicated disabled and that she was merely carrying out the request of Byrd in attempting to have Norma Brandon appointed guardian. She argued that the fact that she was acting upon the directions given by Byrd before he was adjudicated disabled should be sufficient for the court to grant her petition for fees. She also attached an itemized statement of services rendered and the time spent.

Jackson filed a response to both petitions. Included in the response is the following:

“The estate does not take issue with the quality of the work, the hourly rate, that compensation is due, or the allegation that they were retained by Brandon. Rather, they are not entitled to payment of fees from the estate since neither represents a representative, nor have they conferred any benefit upon the estate.” (Emphasis in original.)

Jackson’s argument is twofold: He maintains that there is no statutory basis for the granting of fees to Muse and Johnson and that the services rendered by Muse and Johnson failed to provide any benefit to the estate. Johnson’s argument is also twofold: The Probate Act of 1975 (Ill. Rev. Stat. 1989, ch. IIOV2, par. 1 — 1 et seq.) does not bar recovery of fees and, even in the absence of any statutory authority, she is entitled to fees based on her own contract of employment with Byrd. Jackson now counters that the contracts between Johnson and Byrd and Muse and Byrd were unenforceable because, he maintains, Byrd entered into the contracts with Muse and Johnson after the appointment of a guardian ad litem. That argument was not made in response to the petitions for fees. We do not believe the failure to raise that point in the probate division was inadvertent. Significantly, the Jacksons filed a motion to dismiss the chancery action on September 8, 1989. That motion to dismiss alleged that at the time the chancery action was filed on May 16, 1989, Brandon knew that Byrd was a disabled person as defined by the Probate Act. The motion further alleged that at the time of the commencement of the chancery action Byrd had no capacity to sue in any action and that his lack of capacity was known to Norma Brandon. We repeat that this argument was not made in response to the petition for fees. We conclude, therefore, that Jackson has waived the right to argue that the contracts of employment between Muse and Byrd (not Brandon) and Johnson and Byrd (not Brandon) were unenforceable. Nonetheless, we have decided to address the question.

We emphasize that even in this court Jackson does not maintain that Johnson failed to establish the existence of the contract between her and Byrd. He does not argue that Byrd was mentally incompetent at the time that he entered into the contracts with Muse and Johnson.

We will first address the question of the enforceability of the contract. Section 11a — 22(b) of the Probate Act (Ill. Rev. Stat. 1989, ch. UO1^, par. 11a — 22(b)) provides as follows:

“(b) Every note, bill, bond or other contract by any person for whom a plenary guardian has been appointed or who is adjudged to be unable to so contract is void as against that person and his estate, but a person making a contract with the person so adjudged is bound thereby.”

Jackson’s argument depends entirely on his contention that a guardian ad litem is a “plenary guardian.” We cannot accept that contention. The Probate Act itself distinguishes between a plenary guardian and a guardian ad litem. Section 11a — 3 (Ill. Rev. Stat. 1989, ch. IIOV2, par. 11a — 3(a)) provides as follows:

“(a) Upon the filing of a petition by a reputable person or by the alleged disabled person himself or on its own motion, the court may adjudge a person to be a disabled person and may appoint (1) a guardian of his person, if because of his disability he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person, or (2) a guardian of his estate, if because of his disability he is unable to manage his estate or financial affairs or (3) a guardian of his person and of his estate.”

Section 11a — 10(a) provides as follows:

“(a) Upon the filing of a petition pursuant to Section 11a — 8, the court shall set a date and place for hearing to take place within 30 days. The court shall appoint a guardian ad litem to represent the respondent, except that the appointment of a guardian ad litem shall not be required when the court determines that such appointment is not necessary for the protection of the respondent or a reasonably informed decision on the petition.” Ill. Rev. Stat. 1989, ch. IIOV2, par. 11 — 10(a).

In addition to the distinction between the two terms which appears in the statute itself, we refer to the commonly accepted definitions of the terms. A guardian ad litem is “a special guardian appointed by the court to prosecute or defend, in behalf of an infant or incompetent, a suit to which he is a party, and such guardian is considered an officer of the court to represent the interests of the infant or incompetent in the litigation.” (Black’s Law Dictionary 635 (5th ed. 1979).) A general or plenary guardian is “one who has the general care and control of the person and estate of his ward.” Black’s Law Dictionary 635 (5th ed. 1979). Cf. In re Marriage of Koenig (1991), 211 Ill. App. 3d 1045, 570 N.E.2d 861 (court noted that the legislature had limited a minor child’s representative to either his or her general guardian or court-appointed guardian ad litem).

The facts of this case illustrate that acceptance of Jackson’s argument would be unwise. Jackson filed a petition and attached the untested report of Dr. Vergara. The court appointed the guardian ad litem. All of these proceedings occurred without notice to Byrd. The practical effect of accepting Jackson’s argument would be that any person who was" merely alleged to be disabled could be barred from retaining his own attorney to contest the petition seeking appointment of a guardian who could take control of his life and his estate. The possibility for abuse of the procedure followed in this case is manifest.

Acceptance of the argument would also be unfair to the lawyers. There is no suggestion that they acted in anything but good faith when they contracted with Byrd. No fair-minded person would fault Muse and Johnson for having a reasonable belief that the Jack-sons were out to plunder the estate and that Allen Jackson would not be a fit plenary guardian. Any wrongdoing of Brandon should not be imputed to the lawyers, who, Jackson concedes, were unaware of Brandon’s wrongdoing.

For these reasons, we conclude that appointment of a guardian ad litem did not render any subsequent contract of employment between Johnson and Byrd unenforceable. We note further that the contract between Muse and Byrd was entered into before the appointment of the guardian ad litem.

Although we could affirm the judgments on the ground that Muse and Johnson were entitled to fees based on their employment contracts with Byrd, we deem it appropriate to address the other argument raised by Jackson. He maintains that the statutory authorization for attorney fees does not include Brandon and that Brandon did nothing to benefit the estate of Byrd.

Both sides rely on In re Estate of Roselli (1979), 70 Ill. App. 3d 116, 388 N.E.2d 87. In that case Alfredo Roselli died intestate. His nephew, Vincent Roselli, petitioned to be named administrator of the estate. Over his objection, another nephew Luigi Roselli, who had the consent of the majority of the other heirs, was named administrator. Vincent’s attorney filed a claim for attorney fees for services rendered on behalf of Vincent’s own claim and in opposition to Luigi’s petition. The trial judge awarded fees, and the administrator appealed.

The administrator argued that Vincent was not a “representative” as that term is used in section 27 — 2 of the Probate Act (Ill. Rev. Stat. 1989, 11072, par. 27 — 2), which provides that “[t]he attorney for a representative is entitled to reasonable compensation for his services” and section 1 — 2.15 of the Act (Ill. Rev. Stat. 1989, ch. 11072, par. 1 — 2.15), which provides that “ ‘[Representative’ includes executor, administrator, administrator to collect, guardian and temporary guardian.” The administrator also argued that Vincent’s actions were not in the interest of the estate. The appellate court, in affirming' the judgment, held that it could not be said that the legislature intended to limit the word “representative” only to those persons legally appointed to act; the court said that the word “ ‘representative’ is quite broad, meaning simply one who represents.” (Roselli, 70 Ill. App. 3d at 123.) The court recognized that attorney fees are normally awarded only to an attorney not hired by an executor or administrator if legal services were in the interest of the estate, citing In re Estate of Freund (1978), 63 Ill. App. 3d 1, 379 N.E.2d 935. The court added, however, that fees were justified in the case before it even for an unsuccessful representative “because by bringing the suit he has benefitted the estate.” Roselli, 70 Ill. App. 3d at 123.

In the case before us, the judge made five specific findings of benefit to the estate due to the actions of Muse and Johnson. He first found that Muse and Johnson had “protected estate property which was necessary for Byrd’s support and maintenance” by successfully restraining any use of the funds of Byrd which had been transferred from his bank account at First National Bank by Gladys Jackson until an investigation and determination could be made by the court. Jackson deprecates this finding. He asks rhetorically if the order in the chancery court was a benefit to the estate, “[W]hy did the Chancery Court in an October 23, 1989, order dismiss the cause of action brought by the Petitioners, Lawrence Byrd and Norma Brandon[?]” The answer to Jackson’s rhetorical question is that the chancery case was dismissed by agreement of the parties after the judge of the probate division had also entered an order restraining the parties from using any of Byrd’s assets.

The other four findings made by the judge, in effect, held that the estate had been benefited by Johnson and Muse’s resistance to Jackson’s petition on behalf of Byrd. He said that the actions of Muse and Johnson permitted him to “more fully evaluate and determine who [he] felt would best serve as guardian.” Jackson has taken the same position that the administrator took in Roselli. He does not argue that the judge erred in some of his findings; he argues that the judge erred in all of them. Implicitly, Jackson concedes, as did the administrator in Roselli, that affirmance of any of the judge’s findings of benefit would support the award that was entered. (See Roselli, 70 Ill. App. 3d at 124.) Since we have determined that the first finding of the judge is supported by the evidence, we need not consider the other four findings. We conclude, therefore, that Brandon was a proper representative, that her unsuccessful resistance to the petition of Jackson does not bar her recovery of fees and that her actions benefited the estate to some extent.

In order for a reviewing court to reverse a decision made by a trial judge, the trial judge must have abused his discretion to such an extent that his decision was manifestly and palpably erroneous. (Weiss v. Weiss (1983), 113 Ill. App. 3d 793, 447 N.E.2d 437; In re Estate of Minsky (1978), 59 Ill. App. 3d 974, 376 N.E.2d 647.) On the record before us, we cannot say that the judge abused his discretion in the award of fees.

The judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA and RAKOWSKI, JJ., concur.

       Muse has not filed a brief in this court.