text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERELIUS MOCABY, JR., Defendant-Appellant.
    Fifth District
    No. 5—88—0399
    Opinion filed February 9, 1990.

      Daniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Charles Garnati, State’s Attorney, of Marion (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant, Terelius Mocaby, Jr., appeals his convictions and sentence for murder following a jury trial in the circuit court of Williamson County, held February 23 through 26 and February 29, 1988. He raises five issues on appeal: (1) whether the State proved beyond a reasonable doubt that defendant was not so intoxicated that he was incapable of forming the necessary intent for murder; (2) whether defendant was denied a fair trial where the trial court refused his tendered instructions on voluntary and involuntary manslaughter; (3) whether the trial court abused its discretion in allowing the jury, during deliberations, to listen to defendant’s tape-recorded confession; (4) whether two of defendant’s murder convictions must be vacated as all three murder convictions were carved from the same physical act; and (5) whether defendant is entitled to one additional day of credit against his 23-year sentence of imprisonment. We reverse defendant’s convictions and sentence because we find that he was denied a fair trial by the trial court’s refusal to instruct the jury on the offense of voluntary manslaughter.

Defendant was charged with three counts of murder involving the stabbing death of his adult son, Ryan Mocaby. The stabbing occurred May 22, 1987, at a private fishing pond where defendant and his family were spending the day fishing and picnicking. The evening before the stabbing, defendant and the victim went to the pond to fish and spend the night. On the way to the pond, they stopped at a liquor store and purchased a case of beer. Both defendant and the victim consumed beer that evening and into the morning hours. At some point during the evening the defendant, the victim and another man who had joined them for a few hours went to a liquor store where they purchased two more cases of beer.

The next morning, defendant and the victim awoke at approximately 8 a.m. and began fishing. They drank beer while they fished and throughout the day. At approximately 10:30 a.m., the rest of defendant’s family arrived and defendant and the victim stopped fishing and went up to the picnic area.

While fishing that morning, the victim had caught a large bass of which he was very proud. He had put the bass on a stringer in the pond, and during the course of the morning, showed it to various members of his family. However, when he took a friend down to view the fish, the victim discovered that it was no longer on the stringer, but had somehow escaped. The victim became very upset and began to blame his younger brother, Mark, for letting the fish escape. During the rest of the morning and early afternoon, the victim continued to complain about losing his fish. Finally, the victim became so upset that he threw a beer can at Mark, hitting him in the face and leaving a mark. The victim also hit Mark in the back of the head. At that point the victim’s sister, Anita, stepped in and told the victim to stop. The victim then began pushing and shoving Anita.

The evidence is conflicting as to exactly what happened next. Mark testified that while the victim “had a hold” of Anita, the defendant got up from where he had been sitting cleaning fish, approached the victim, grabbed him by the shoulder and turned him around. Although Mark did not see the knife in the defendant’s hand, he did see the defendant swing his arm toward the victim’s chest. Mark testified that he saw the defendant stab the victim. The victim then kicked the defendant in the chest and began to walk down the hill toward the pond.

Anita testified that when she told the victim to stop fighting with Mark, the victim stopped hitting Mark and began shoving her. Anita began to cry and sat down. The victim then started to walk away toward the pond. Defendant was sitting by a tree. Anita did not see the stabbing, but heard someone say, “He’s been stabbed.” She then saw defendant standing, and she thought she saw the victim kick the defendant and then stumble down the hill toward the pond.

Shirley Mocaby, the defendant’s wife and the victim’s mother, testified that she saw the victim slap Anita’s face, bloodying her mouth. She admitted that she had not mentioned this to the police after the stabbing. Shirley did not see the stabbing.

The victim collapsed part-way down the hill. The defendant helped to load the victim into the back seat of an automobile and sat in the back seat with him while another family member drove to the hospital. The defendant testified that on the way to the hospital he attempted to give the victim mouth-to-mouth resuscitation. The defendant thought that the victim expired on the way to the hospital and told the driver of the vehicle that he could slow down as it was “too late.” The victim was pronounced dead at the hospital.

Defendant testified at trial that he had been drinking the night before and the day of the stabbing. He remembered the victim becoming upset over the loss of his fish and blaming Mark. He did not see the victim hit Mark or throw a beer can at Mark. He did remember the victim and Mark arguing. Defendant was sitting in a lawn chair near the fire. The victim was arguing with family members, and it was becoming quite loud. The victim shoved Anita, and defendant thought Anita “was in trouble, so I thought I’ve got to break it up or help Anita, go to [Anita’s] assistance.” Defendant remembered getting up from where he was sitting to help Anita. The next thing defendant remembered was the victim holding himself and defendant holding the knife. The victim turned and walked down the hill toward the pond. Defendant testified that he was in a stupor. He remembered loading the victim into the car and driving to the hospital. The victim had his head on defendant’s lap and, although he was still breathing, seemed to be getting weaker. Defendant attempted to give the victim mouth-to-mouth resuscitation. Defendant remembered being told by the doctor that the victim was dead and remembered giving a tape-recorded statement to Sheriff’s Deputy Robert McCluskey.

Defendant admitted that he had no reason or desire to kill the victim that day and that he did not remember intending to hurt or kill the victim. He testified that at the time the victim and Anita were arguing, he felt that he had to defend Anita because he saw that she was getting shoved and pushed. Defendant did not remember arguing with the victim or being threatened by the victim that day.

Defendant was arrested at the hospital and transported to the sheriff’s department. While there he made a statement to Deputy Mc-Cluskey. McCluskey testified that he could smell alcohol on defendant’s breath and it was clear defendant had been drinking. However, defendant could walk, was alert and appeared to understand what was being said. Defendant stated that the victim was shoving various family members, including defendant’s wife. Defendant was tired of Mark being blamed for the lost fish and wanted it to stop. Defendant stated that he did not remember the actual stabbing, but “remembered that he felt that [the victim] was holding someone” and he got up and went over to them. Defendant admitted stabbing the victim, that it was not an accident and that the victim had not threatened or attacked him that day.

Defendant gave Deputy McCluskey a tape-recorded statement which was admitted into evidence and played at defendant’s trial. In that statement, defendant stated that the victim would not stop arguing about his lost fish. The victim finally got so mad that he started shoving people around, including Anita and "defendant’s wife. Defendant was sitting in a lawn chair. He vaguely remembered stabbing the victim and admitted that he did stab the victim. He identified the knife. He did not mention that he felt the need to defend or help Anita in any way. He stated, “I thought, ‘I’m not taking — (unintelligible)’ It wouldn’t have done no good for me to have tried to fight him, that boy. He was a big boy. He told me, ‘I’ll break your God-damn neck.’ ” He stated that he remembered being mad at the victim when the victim started shoving people around. The recorded statement was consistent with the unrecorded statement defendant gave to Deputy McCluskey.

With respect to defendant’s intoxication, defendant testified that he did not remember how many beers he had drunk at the time of the stabbing, but was sure that as long as there was beer to drink, he would drink it. Defendant testified that he had been drinking alcohol since he was 17 years old and that he had been fired from two jobs because of his drinking. At the time of the stabbing, defendant’s paycheck was sent directly to his home so that he would not spend it all on alcohol. Defendant’s wife gave him $20 per week to spend on alcohol.

Anita characterized her father as drunk at the time of the stabbing, although she testified that he was still able to walk and talk. She testified that her father drank to excess and would drink through every weekend.

Shirley also thought defendant was drunk at the time of the stabbing and testified that he staggered when he stood. Shirley confirmed that defendant had a drinking problem and that he was drunk every weekend. When defendant was drunk, he acted differently than when he was sober and often could not remember things he had done while drunk. Defendant had received treatment in the past for alcoholism.

Rory Miskelly, defendant’s son-in-law, testified that defendant was intoxicated before the stabbing and was having some trouble getting around. Defendant was able to walk and talk at the hospital, and provided hospital personnel with information regarding the victim and the stabbing.

Defendant talked with several police officers at the hospital. Defendant admitted that he had stabbed the victim and identified the knife. Defendant told a police officer that the victim was mad about his fish which had escaped, that he was shoving and threatening his family, and that the defendant just couldn’t take it any more and stabbed the victim. Defendant stated that he had been taunted for years by the victim and could not take any more. The victim did not attack defendant the day of the stabbing. At the hospital, defendant was able to walk without staggering. However, police officers testified that there was a strong odor of alcohol on defendant, that his speech was slightly slurred and he appeared to be intoxicated. Defendant was able to provide hospital personnel with information regarding the victim.

Dr. David Warshauer, a psychologist, testified as an expert witness as to defendant’s alcoholism. He testified that defendant is a chronic alcoholic who had sought treatment in the past. Dr. Warshauer testified that an alcoholic would not necessarily stagger or be unable to speak when drunk. An alcoholic might act quite normal, but his thinking could be “completely awry.” Dr. Warshauer explained that alcoholics often have periods of blackout and that he thought defendant had had at least two blackouts on the day of the stabbing. During a blackout, a person may appear normal but have a loss of memory.

At the jury instruction conference, defendant tendered instructions on voluntary manslaughter and involuntary manslaughter. They were objected to by the State and refused by the trial court.

During the jury’s deliberations, the jury sent out a note asking for a tape recorder so that they could hear the tape of defendant’s statement made to Deputy McCluskey. The State had no objection. Defendant did not expressly object at the time because the matters of admitting the tape recording into evidence and allowing the jury to rehear the taped confession had been discussed earlier in the proceedings, and defendant’s objections had been overruled at that time.

The jury returned a verdict of guilty of murder on all three counts. The trial court entered judgment on all three counts and, after hearing a post-trial motion and conducting a sentencing hearing, sentenced defendant to 23 years’ imprisonment on each count, to run concurrently.

The first issue raised on appeal is whether the defendant was proved guilty of murder beyond a reasonable doubt where he presented evidence of his intoxication at the time of the killing. Intoxication may be a defense to a crime which requires a specific intent, such as murder, where the intoxication is so extreme as to suspend all reason and make it impossible for the defendant to form the necessary intent. (People v. Brown (1980), 89 Ill. App. 3d 852, 857, 412 N.E.2d 580, 584.) The defense of intoxication is an affirmative defense which must be raised by the defense. Once raised, however, the State bears the burden of proving beyond a reasonable doubt that defendant was not so intoxicated that he was incapable of forming the necessary intent. (People v. Evrard (1965), 55 Ill. App. 2d 270, 273, 204 N.E.2d 777, 779.) Defendant argues that the State did not meet this burden in the instant case. We disagree.

Mere alcoholism does not constitute a defense to a crime, nor does mere intoxication. (People v. Hurt (1988), 175 Ill. App. 3d 970, 977, 530 N.E.2d 698, 703.) There are many levels of intoxication through which an individual may pass before reaching the level which constitutes a defense to a criminal charge. (Hurt, 175 Ill. App. 3d at 977, 530 N.E.2d at 703.) Thus, the mere fact that defendant had been drinking and was probably to some degree intoxicated at the time of the stabbing does not require reversal of the jury’s verdict. In order to constitute a defense to a criminal charge, the intoxication must be so extreme that it suspends entirely the power of reason or renders the defendant wholly incapable of forming the requisite intent to commit the crime in question. Hurt, 175 Ill. App. 3d at 977, 530 N.E.2d at 703.

In the instant case, the evidence demonstrates that, although defendant did not remember the act of stabbing the victim, he did recall in substantial detail the events leading up to and following the stabbing. Furthermore, there was evidence that his failure to remember the stabbing may have been due to his unconscious repression of a traumatic event. Defendant was certainly lucid after the stabbing and, according to his own testimony, was thinking rationally before the stabbing. (He testified that he thought he needed to defend Anita from the victim’s attack and got up to do so.)

The question of whether defendant was so intoxicated as to be unable to perform a knowing or intentional act is for the jury. (People v. Quinn (1977), 46 Ill. App. 3d 579, 583, 360 N.E.2d 1221, 1224.) The jury in the instant case believed that defendant’s intoxication was not so extreme as to suspend his power of reason or render him incapable of forming the requisite intent to commit the murder. That finding is not so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (See People v. Watts (1988), 170 Ill. App. 3d 815, 824, 525 N.E.2d 233, 240.) Despite this conclusion, we must still address defendant’s other claims of error, for if defendant’s trial was unfair or deprived him of substantial justice, he is entitled to reversal of his conviction and a new trial.

The next issue raised by defendant is whether the trial court erred in refusing to instruct the jury on the offenses of voluntary and involuntary manslaughter. It is well settled that if there is evidence in the record which, if believed by a jury, would reduce the crime to manslaughter, a manslaughter instruction tendered by defendant must be given. (People v. Leonard (1980), 83 Ill. 2d 411, 420-21, 415 N.E.2d 358, 363.) Instructions will not be justified that are based on the merest factual reference or witness’ comment, but even a slight amount of evidence will raise the issue and justify the instruction. (People v. Robinson (1987), 163 Ill. App. 3d 754, 761, 516 N.E.2d 1292, 1298.) However, a manslaughter instruction should not be given where the evidence clearly demonstrates that the crime was murder and there is no evidence to support a manslaughter conviction. People v. Riddle (1988), 175 Ill. App. 3d 85, 89, 529 N.E.2d 713, 716.

An individual commits voluntary manslaughter when he intentionally or knowingly kills another while acting under an unreasonable belief that deadly force is necessary to protect himself or another from imminent death or great bodily harm. (People v. Jordan (1985), 130 Ill. App. 3d 810, 812, 474 N.E.2d 1283, 1286.) In the instant case, the evidence shows that immediately before the stabbing, the victim had been arguing with and hitting various members of defendant’s family. The defendant testified that he felt the need to defend or help Anita because the victim was pushing and shoving her. The defendant told Deputy McCluskey that the victim was a big person, that defendant could not fight the victim and that on previous occasions, the victim had threatened to break the defendant’s neck. Furthermore, defendant was intoxicated at the time of the stabbing. Intoxication may contribute to a defendant’s mistaken belief of self-defense. People v. Smith (1984), 124 Ill. App. 3d 720, 723, 464 N.E.2d 824, 827.

We think this evidence was sufficient to raise the question whether defendant stabbed the victim under the unreasonable belief that deadly force was necessary to protect Anita and himself from death or great bodily harm and to justify the giving of defendant’s tendered voluntary manslaughter instruction. The trial court erred in failing to do so. We further find the error to be reversible. If the jury had believed the defendant’s testimony in this respect and been properly instructed, it could have reasonably returned a verdict of guilty of voluntary manslaughter rather than murder. Defendant was therefore prejudiced by the trial court’s refusal to instruct the jury on voluntary manslaughter. See People v. Peery (1973), 11 Ill. App. 3d 730, 734, 297 N.E.2d 643, 646.

We reach a different conclusion with respect to the trial court’s refusal to instruct the jury on the offense of involuntary manslaughter. The crime of involuntary manslaughter occurs where death results from acts performed recklessly, but without the intent to injure. (People v. Platter (1980), 89 Ill. App. 3d 803, 821, 412 N.E.2d 181, 194.) Where the evidence demonstrates that the defendant acted with the intent to kill or injure the victim, an involuntary manslaughter instruction is not warranted. A person acts intentionally when his conscious objective or purpose is to accomplish the result or engage in the conduct. (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 4.) A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. Ill. Rev. Stat. 1987, ch. 38, par. 4 — 6.

In the instant case, all the evidence indicates that defendant acted intentionally in stabbing the victim. There is no evidence that the stabbing occurred during the course of a struggle between the defendant and the victim or that the stabbing occurred accidentally when defendant recklessly approached the victim brandishing a weapon. Instead, Mark testified that the defendant approached the victim from behind, grabbed him by the shoulder to turn him around, and swung his arm toward the victim’s chest in a stabbing motion.

There must be some evidence in the record that the defendant did not intend to injure or kill the victim when he stabbed him, but that the stabbing occurred only through the defendant’s recklessness in approaching the victim while holding a knife. There is no such evidence in the record. The trial court did not err in refusing to instruct the jury on the offense of involuntary manslaughter. See People v. Wolski (1980), 83 Ill. App. 3d 17, 25-26, 403 N.E.2d 528, 536, cert. denied (1981), 450 U.S. 915, 67 L. Ed. 2d 339, 101 S. Ct. 1356.

In his brief, defendant relies on People v. Jenkins (1975), 30 Ill. App. 3d 1034, 333 N.E.2d 497. In Jenkins, the defendant was chasing his wife with a knife when he encountered his wife’s boyfriend on the stairway. A struggle ensued between defendant and the boyfriend during which the boyfriend was fatally stabbed. Defendant did not remember the stabbing and there were no other witnesses. Defendant’s tendered involuntary manslaughter instruction was refused, requiring reversal of defendant’s murder conviction. We think Jenkins is distinguishable from the instant case. In Jenkins, there was no evidence of an intentional stabbing and the stabbing occurred during the course of a struggle between the defendant and the victim. Under that set of facts, it is conceivable that the stabbing was not intentional and that it occurred accidentally during the struggle. However, in the instant case, the evidence indicates that there was no struggle between the defendant and the victim and that the defendant stabbed the victim purposefully and intentionally. We do not think an involuntary manslaughter instruction was warranted in the instant case.

In light of our reversal of defendant’s convictions for failure to instruct the jury on the offense of voluntary manslaughter and the remand of this cause for new trial, we find it unnecessary to discuss the defendant’s remaining issues.

For the foregoing reasons, the judgment of the circuit court of Williamson County is reversed and this cause is remanded for a new trial.

Reversed and remanded.

HARRISON and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    HOWARD BLYTHE, Petitioner-Appellee and Cross-Appellant, v. MICHAEL P. LANE, Director of the Department of Corrections, et al., Respondents-Appellants and Cross-Appellees.
    Fifth District
    No. 5—87—0853
    Opinion filed February 9, 1990.

      Neil F. Hartigan, Attorney General, of Springfield (Shawn W. Denney, Solicitor General, Terence M. Madsen, Assistant Attorney General, and Douglas K. Smith, of counsel), for appellants.
    Howard B. Eisenberg, of Southern Illinois University, of Carbondale, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Howard Blythe was convicted of murder on November 13, 1971, and sentenced to not less than 35 nor more than 70 years’ imprisonment. (People v. Blythe (1974), 17 Ill. App. 3d 768, 308 N.E.2d 675.) He was paroled from physical custody of the Department of Corrections on October 31, 1983. Blythe applied for discharge from parole through his parole agent in October of 1986. Without a hearing the Prisoner Review Board denied discharge, stating in its recommendation regarding discharge:

“The Board feels the best interest of the parolee and the community would be served by a longer period of supervision.”

Blythe brought an action for mandamus and habeas corpus in the circuit court of Jackson County, advancing two arguments: (1) that section 5 — 8—1(d)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(d)(1)) limits the time on parole for persons convicted of murder to three years; (2) that his State and Federal constitutional rights to due process of law were violated by the manner in which the prisoner review board disposed of his case.

The circuit court found that the statute does not limit Blythe’s parole period to three years, but remanded the case to the Prisoner Review Board because the record failed to show any basis of the Board’s decision. The State appeals that portion of the judgment granting relief to Blythe, raising the specific argument that a parolee has no liberty interest in being discharged from parole prior to the expiration of his sentence sufficient to require some form of due process if his request for early discharge is denied.

Mr. Blythe cross-appeals, citing two issues for our review: (1) whether the period of parole supervision is limited to no more than three years under section 5 — 8—1(d)(1) of the Unified Code of Corrections and whether that period is to be added on to the maximum possible period of imprisonment; and (2) whether petitioner is entitled to a hearing before the Prisoner Review Board.

The Unified Code of Corrections section 3 — 3—8(a) provides that “[t]he length of parole *** shall be as set out in Section 5 — 8—1 unless sooner terminated.” (Ill. Rev. Stat. 1987, ch. 38, par. 1003 — 3— 8(a).) Section 5 — 8—1 provides in pertinent part:

“(d) Except where a term of natural life is imposed, every sentence shall include as though written therein a term in addition to the term of imprisonment. For those sentenced under the law in effect prior to February 1, 1978, such term shall be identified as a parole term. *** Subject to earlier termination under Section 3 — 3—8, the parole * * * term shall be as follows:
(1) for first degree murder or a Class X felony, 3 years.” Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(d).

Petitioner asserts that his parole term began when he was paroled on October 31, 1983, and that under section 5 — 8—1(d), it ended three years later on October 31, 1986. He argues that the statute clearly shows the legislature’s intent to limit the Prisoner Review Board’s revocation powers to the duration of the three-year parole term. Petitioner contends that once he completed his three-year parole term, he was entitled to discharge as a matter of law and therefore respondents had no authority to deny his discharge from their custody.

Respondents dispute such argument, and instead adopt the reasoning of the Illinois Supreme Court’s holding in People ex rel. Johnson v. Pate (1970), 47 Ill. 2d 172, 174, 265 N.E.2d 144, 146:

“Admission to parole does not, of course, entitle a prisoner to his discharge. It is simply an alternative method by which he may serve his sentence ***. Although not confined in prison, a parolee remains at all times in the custody of the Department of Public Safety, and subject to the authority of the Parole and Pardon Board until expiration of the sentence.”

Respondents contend that the mandatory parole term in section 5— 8 — 1(d) cannot begin to run until after the maximum term of imprisonment is satisfied, either by actual incarceration or by discretionary parole. Concurrent with this appeal, the Illinois Supreme Court has decided this very issue in the case of Faheem-El v. Klincar (1988), 123 Ill. 2d 291, 527 N.E.2d 307.

In Faheem-El v. Klincar (1988), 123 Ill. 2d 291, 527 N.E.2d 307, petitioner was convicted of murder and sentenced to an indeterminate term of 30 to 90 years’ imprisonment. Ten years later he was paroled. Approximately 3V2 years after first being paroled, petitioner was arrested and charged with delivering $30 worth of cocaine. A judge found him eligible for bail; however, petitioner’s release was thwarted when the prisoner review board issued a parole violator warrant against petitioner. A parole revocation hearing was conducted wherein it was found petitioner had violated his parole. He was ordered incarcerated. Mr. Faheem-El filed with the Illinois Supreme Court an original petition for writ of habeas corpus, alleging that his imprisonment pursuant to a parole revocation order was unlawful. Petitioner argued that his parole term began when he was paroled on October 5, 1983, and that under section 5 — 8—1(d) of the Unified Code of Corrections, it ended three years later on October 5, 1986. As he was not arrested for delivering cocaine until April 5, 1987, which was nearly six months after the date petitioner cláimed his period of parole ended, petitioner claimed that he did not violate his parole.

The Illinois Supreme Court denied the petition for writ of habeas corpus. Upon review of the language of section 5 — 8—1, and the legislature’s reasoning behind the statute, the court held that the length of parole set forth in section 5 — 8—1 includes any remaining period of the maximum term of imprisonment and, in addition, the mandatory parole term. (Faheem-El, 123 Ill. 2d at 300, 527 N.E.2d at 310.) The justices in Faheem-El reasoned that based upon the historical evolution of the statutes governing parole, the purpose of mandatory periods of parole in section 5 — 8—1 was to enhance, not reduce, the Department of Correction’s control over an inmate and parolee. (Faheem-El, 123 Ill. 2d at 301, 527 N.E.2d at 312.) This finding is consistent with the previous holdings of the supreme court and our own appellate court that parole alters only the method and degree of confinement during the period of commitment. People v. Williams (1977), 66 Ill. 2d 179, 187, 361 N.E.2d 1110, 1114; Kindhart v. Mizell (1981), 101 Ill. App. 3d 631, 632, 428 N.E.2d 551, 552.

In light of our supreme court’s recent ruling, we decline to accept the construction of the Cole of Corrections offered by petitioner in the case at bar. We abide by the holding of the supreme court in Faheem-El and affirm the circuit court’s finding insofar as it held that section 5 — 8—1 does not limit petitioner’s parole period to three years.

The second issue on appeal raises the question of whether petitioner is entitled to a hearing before the Prisoner Review Board (Board) when he seeks early discharge from parole.

Petitioner puts much emphasis on the case of United States ex rel. Scott v. Illinois Parole & Pardon Board (7th Cir. 1982), 669 F.2d 1185, cert. denied (1982), 459 U.S. 1048, 74 L. Ed. 2d 617, 103 S. Ct. 468, in arguing that the Illinois statutes governing parole release give rise to a constitutionally protected liberty interest. The petitioner in Scott was serving a 25- to 40-year sentence for murder. He alleged that he served the minimum amount of time required under the sentence imposed on him, but had twice been denied parole based on the seriousness of the offense. Petitioner Scott sought immediate release from incarceration, alleging as grounds that he had a constitutionally protected liberty interest in parole and that the Prisoner Review Board violated his fourteenth amendment rights in not giving him a constitutionally sufficient reason for denial of parole. The United States Court of Appeals for the Seventh Circuit held that the Illinois parole release statute at issue (Ill. Rev. Stat. 1979, ch. 38, par. 1003— 3 — 5(c)) was practically identical to the Nebraska statute in Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex (1979), 442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100, and therefore under the rationale of Greenholtz, the Illinois statute created a constitutional liberty interest, namely, the presumption that an eligible inmate would be paroled unless one of the statutorily specified grounds for denial was found to exist. Scott, 669 F.2d at 1190.

We note that Scott appears to be contrary to the prevailing law in Illinois, which holds that parole is in the nature of a gift. (Harris v. Irving (1980), 90 Ill. App. 3d 56, 62, 412 N.E.2d 976, 980.) Moreover, the fallacy of petitioner’s reliance on Scott, in arguing that the parole discharge statute invokes a constitutional liberty interest mandating a hearing prior to denying discharge, is that Scott concerned the Illinois parole release statute (Ill. Rev. Stat. 1979, ch. 38, par. 1003 — 3—5). We are herewith concerned with the Illinois Unified Code of Corrections discharge statute. (Ill. Rev. Stat. 1987, ch. 38, par. 1003 — 3—8.) The intrinsic difference between parole and discharge is clearly set forth in the definitional section of the Unified Code of Corrections section 3 — 1—2, which defines discharge as “the final termination of a commitment to the Department of Corrections.” (Ill. Rev. Stat. 1987, ch. 38, par. 1003 — 1—2(g).) Parole is defined as “the conditional and revocable release of a committed person under the supervision of a parole officer.” (Ill. Rev. Stat. 1987, ch. 38, par. 1003 — 1—2(k).) There is a vast difference between the denial of parole and a State’s refusal to commute a lawful sentence. Connecticut Board of Pardons v. Dumschat (1981), 452 U.S. 458, 466, 69 L. Ed. 2d 158, 166, 101 S. Ct. 2460, 2465.

In the case at bar petitioner alleges that the discharge procedures of the Board denied him procedural due process. In particular, petitioner argues that the record fails to show any reasonable basis for the Board’s decision to deny discharge. Petitioner asserts that if permitted to have a hearing before the Board, such will afford the Board an opportunity to articulate a reasoned basis for its action, thereby complying with minimal due process requirements. In support of his position, petitioner cites the Board’s “Commendation Regarding Discharge,” which was made part of the record on appeal. That document was the only record '¡given petitioner stating the reason for denial of his discharge. Aside Nom personnel statistics of petitioner, the commendation states that whife on release, petitioner has not had any arrests nor has he violated his parole. Under a paragraph entitled “Agent Summary,” the report stater:

“Face-to-face — 10-3-86. Subject’s adjustment continues to be above average. He has maintained full-time employment since his release and has always displayed a positive attitude. He also appears to be a very good father and family man. He will have completed three years of supervision on 10-31-86. Discharge: xx Recommended _ Not Recommended.”

Without delineating the basis for its action, the Board denied recommending the petitioner’s discharge. The preprinted explanation for denial was checked on the form and read, “The Board feels the best interest of the parolee and the community would be served by a longer period of supervision.”

That a State has no duty to establish a parole system is well established in Illinois. (Harris v. Irving (1980), 90 Ill. App. 3d 56, 62, 412 N.E.2d 976, 980.) Parole in Illinois is in the nature of a gift rather than a legal right; a prisoner cannot invoke it at his will and has no right to demand that he be discharged before the expiration of the maximum term of his sentence. (Perry v. Bensinger (N.D. Ill. 1973), 362 F. Supp. 195, 197; Greenholtz, 442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100.) We must be mindful, however, that although the presence of a parole system by itself does not give rise to a constitutionally protected liberty interest in parole discharge, the Illinois discharge statute may create an expectation of discharge protected by the due process clause of the fourteenth amendment. (See Greenholtz, 442 U.S. at 12, 60 L. Ed. 2d at 678, 99 S. Ct. at 2106.) Liberty interests protected by the fourteenth amendment may arise from two sources: the due process clause itself and the laws of the States. Hewitt v. Helms (1983), 459 U.S. 460, 466, 74 L. Ed. 2d 675, 685, 103 S. Ct. 864, 868-69.

We start with the premise that discharge is not part of a criminal prosecution, and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole discharge. Discharge arises subsequent to the criminal prosecution and imposition of sentence. (Morrissey v. Brewer (1972), 408 U.S. 471, 480, 33 L. Ed. 2d 484, 494, 92 S. Ct. 2593, 2600.) We focus, therefore, on the question whether the Illinois legislature has created a liberty interest protected by the due process clause through its enactment of the discharge statute. (Ill. Rev. Stat. 1987, ch. j88, par. 1003 — 3—8.) Using the two-prong analysis the Supreme Cou/rt adopted in Greenholtz, we can determine whether such a liberty .'interest exists via the Illinois discharge statute.

In Greenholtz (442 U.S. 1, 12, 60 L. Ed. 2d 668, 678, 99 S. Ct. 2100, 2106), the court held that the Nebraska parole statute created the expectancy of release and thus it conferred some measure of constitutional protection. The court based its finding on what it called “the statute’s unique structure and language,” namely the explicit mandatory language in connection with requiring specific substantive predicates. This analysis has been used in finding other State statutes as creating a constitutionally protected liberty interest. See Greenholtz, 442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100; Hewitt v. Helms (1983), 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864; Board of Pardons v. Allen (1987), 482 U.S. 369, 96 L. Ed. 2d 303, 107 S. Ct. 2415.

In this case, section 3 — 3—8(b) reads:
“(b) The Prisoner Review Board may enter an order releasing and discharging one from parole or mandatory supervised release, and his commitment to the Department, when it determines that he is likely to remain at liberty without committing another offense.” (Ill. Rev. Stat. 1987, ch. 38, par. 1003 — 3— 8(b).)

It is clear from a review of this section that the legislature has adopted discretionary language, stating that the Board may enter an order, upon a finding that a parolee is likely to remain at liberty without commiting another offense. This is in contrast to the Nebraska statutory procedures described in Greenholtz, which expressly mandated that the Nebraska Board of Parole shall order the inmate’s release unless it decided that one of four specified reasons for denial was applicable. (Greenholtz, 442 U.S. at 11, 60 L. Ed. 2d at 678, 99 S. Ct. at 2106.) Our Illinois discharge statute, with no definitions and no mandatory language, appears to create no analogous duty or constitutional entitlement. (See Connecticut Board of Pardons v. Dumsckat (1981), 452 U.S. 458, 466, 69 L. Ed. 2d 158, 166, 101 S. Ct. 2460, 2465.) Rather, section 3 — 3—8 gives the Illinois Prisoner Review Board discretionary authority to discharge a parolee from a lawfully imposed sentence.

We are not unmindful of petitioner’s argument that while mandatory rather than discretionary language is a factor to consider, one must consider the totality of the statutory framework to determine if a liberty interest was created. It is too narrow a reading of Greenholtz to hold that because a statute lacked the precise shatt/un-les.s language and structure of Nebraska’s statute, it did not give rise to a constitutionally protected liberty interest. (Scott, 669 F.2d at 1188.) Under the statutory analysis of Greenholtz, we must also analyze whether specific criteria or substantive predicates are spelled out in the questioned statute. The only criterion imposed on the Board under section 3 — 3—8, in making a discharge determination, is that the Board exercise its discretion “when it determines that [the parolee] is likely to remain at liberty without committing another offense.” (Ill. Rev. Stat. 1987, ch. 38, par. 1003 — 3—8.) We discount the theory that this sole criterion amounts to a procedural guideline which creates an expectancy interest in parole discharge. Unlike the Nebraska statute in Greenholtz and those cases which have held statutes to confer a constitutionally protected liberty interest, the statute at issue does not specify the conditions under which discharge is to be granted. Section 3 — 3—8(b) directs the Board to use its discretionary power in applying statutorily unspecified criteria to determine whether to order discharge, once the Board finds the parolee is likely to remain at liberty without committing an offense. In fact there is no statute directing the Board as to what reports, testimony or evidence it must consider in making its section 3 — 3—8 finding. This is in direct contrast to the parole release statute, section 3 — 3—5, which operates in conjunction with section 3 — 3—4, directing the Board as to what documents and evidence it shall consider in making its parole determination. (Ill. Rev. Stat. 1987, ch. 38, pars. 1003 — 3—4, 1003 — 3—5.) The statute at issue does not specify criteria or substantive predicates to be used by the Board in determining when a parolee is likely to remain free without violating the law. We are thereby persuaded that the discretionary language of section 3 — 3—8, coupled with the absence of specified criteria to be applied by the Board, demands the conclusion that no protected liberty interest was created by the statute.

The requirement of a hearing that petitioner suggests is constitutionally required would provide at best a negligible benefit to the parties. As the “Commendation Regarding Discharge” stated in this case, there was before the Board a summary of the agent’s findings as to parolee’s adjustment to his home and community. Petitioner argues in his brief on appeal that, if allowed a hearing before the Board, he would show that he has been on parole for five years without incident, has worked full time, and has supported himself, his wife and his wife’s daughter. It is apparent that if granted a hearing petitioner would present evidence which is substantially identical to the evidence which was before the Board as shown in the “Agent Summary.” As the “Commendation Regarding Discharge” shows, the Board did have before it the records relating to petitioner’s case, and as best as can be determined from the briefs and record before this court, any evidence petitioner alleges he would have produced was before the Board in the form of the “Agent Summary.” Petitioner contends this is not enough, and that he is entitled to know what contrary evidence, if any, the Board considered in rendering its decision. We are not prepared to require the Board to give to the parolee detailed evidentiary findings upon which it rests its discretionary determination as to discharge.

We find nothing in the due process concepts as they have thus far evolved that requires the Board to specify the particular evidence in the inmate’s files or at its meeting upon which it bases the discretionary determination that an inmate.is not ready for discharge. To require the parole authority to provide a hearing and issue a summary of the evidence would tend to convert the process into an adversary proceeding and to equate the Board’s discharge determination with a guilt determination. (Greenholtz, 442 U.S. at 15-16, 60 L. Ed. 2d at 681, 99 S. Ct. at 2108.) A State cannot be required to explain its reasons for a decision when it is not required to act on prescribed grounds. Connecticut Board of Pardons v. Dumschat (1981), 452 U.S. 458, 466, 69 L. Ed. 2d 158, 166, 101 S. Ct. 2460, 2465.

Accordingly, the judgment of the circuit court is affirmed insofar as its finding that section 5 — 8—1 does not limit petitioner’s parole period to three years and is reversed with regard to its finding that petitioner is entitled to a hearing before the Prisoner Review Board.

Affirmed in part; reversed in part.

HOWERTON and RARICK, JJ., concur.


author: JUSTICE HOWERTON

text:
    LONNIE AHART, Plaintiff, v. LEE YOUNG, Indiv. and as Agent for South Louisiana Stud, Inc., et al., Defendants (The Jockey Club, Defendant-Appellee; Runge & Gumbel, P.C., Intervenor-Appellant).
    Fifth District
    No. 5—87—0737
    Opinion filed February 9, 1990.
    David C. Davis, of Runge & Gumbel, P.C., of Collinsville, for appellant.
    Curtis L. Blood, of Reed, Armstrong, Gorman, Coffey, Thomson & Gilbert, of Edwardsville, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Jurisdiction means power, and cases involving questions of jurisdiction are most serious, because they touch the foundation of a free society — the power of the sovereign, through her courts, to select the winner of a dispute between otherwise free parties, and, once selection is made, to coerce compliance with the decision; but, sometimes cases dealing with jurisdiction have the raciest facts. This is such a case.

Never Doubt, a thoroughbred stallion racehorse, was registered with The Jockey Club, a New York not-for-profit corporation. That registration made Never Doubt a racehorse, for no thoroughbred horse can race legally in Illinois unless registered with The Jockey Club. As “imprimatur” means “let it be printed,” so The Jockey Club’s certificate of registration means “let the horse be raced.”

No horse races forever though, and when a thoroughbred stallion has wheezed past his final finish line, his racing career run-dry, he is called upon to pass his bloodlines to the next horse generation by being put out to stud. But, racing is the key; it gives value to bloodlines, thereby opening the breeding barn door. The certificate of registration issued by The Jockey Club is, therefore, not only the exclusive ticket to the track, it is the main ticket for a stallion’s entry into the more pleasant pastures of retirement.

The certificate of registration issued by The Jockey Club in New York forms the nexus of the jurisdictional question.

Ahart, in Illinois, sent the application for Never Doubt’s certificate of registration together with the requisite fee and proof of ownership to The Jockey Club in New York.

The Jockey Club registered Never Doubt, issued the certificate in New York and sent it to Ahart in Illinois.

The Jockey Club has no office in Illinois, does not own, possess or control any property in Illinois, does not have a telephone number or mailing address in Illinois, has no stewards, officers, agents or employees residing in Illinois, sends no employees into Illinois, and has no bank account or corporate records in Illinois.

Never Doubt ran his last race, but, as was never doubted, he. was retired to stud. He was shipped to Louisiana to South Louisiana Stud, Inc., and Lee Young where he was to syndicate. Syndication meant that Never Doubt would pass on his bloodlines in the usual way and that his owner, Ahart, and Young and South Louisiana Stud, Inc., all would get money for Never Doubt’s efforts.

Although they had no ownership interest in Never Doubt, Young and South Louisiana Stud, Inc., applied to The Jockey Club for a duplicate certificate. The Jockey Club obliged and issued them a duplicate. Young and South Louisiana Stud, Inc.’s application, fee payment, and certificate issuance were handled in the same manner as Ahart’s was, except the application fee and certificate of registration flowed between Louisiana and New York, instead of between Illinois and New York.

Discovering its mistake, The Jockey Club asked for the duplicate certificate back. Young and South Louisiana Stud, Inc., refused, and held Never Doubt out as their own, allowing him to continue to service mares.

Then things really went sour. Never Doubt got venereal disease and for a time Never Doubt never could. Sterile stallions command no stud fees; Ahart suffered financial loss.

Ahart sued Young, South Louisiana Stud, Inc., and The Jockey Club. Runge & Gumbel, P.C., lawyers who own a piece of Never Doubt, intervened.

The Jockey Club objected to Illinois jurisdiction by filing a special and limited appearance to quash the summons and dismiss the action for lack of jurisdiction. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 301.

The circuit court of Madison County granted The Jockey Club’s special and limited appearance. The case against The Jockey Club was at an end. But then the most curious things happened. Ahart filed a motion to reconsider. Before the motion to reconsider was heard, The Jockey Club filed a motion to dismiss plaintiff’s complaint. Interve-nors then filed a motion to reconsider. Both motions to reconsider, as they pertained to The Jockey Club, were denied.

Only intervenor appeals, and The Jockey Club is the only defendant to this appeal.

We reverse and remand, holding that Illinois has jurisdiction over The Jockey Club.

I

There are two kinds of appearances, one called “special,” the other “general,” and the distinction between them is critical insofar as jurisdiction is concerned.

Special appearances are made to contest jurisdiction and are ere-ated by statute. The Code of Civil Procedure provides:
(a) Prior to filing any other pleading or motion, a special appearance may be made either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person of the defendant. A special appearance may be made as to an entire proceeding or as to any cause of action involved therein. Every appearance, prior to judgment, not in compliance with the foregoing is a general appearance. Ill. Rev. Stat. 1985, ch. 110, par. 2 — 301.

A general appearance, however, is a horse of a different color; a general appearance does not contest jurisdiction and can confer jurisdiction:

“[A] defendant may waive the service of process and confer jurisdiction over his person upon the court. This may be done where a defendant fails to limit his appearance before the court to the narrow issue of service of process and instead at the same time seeks further relief from the court.” Community Bank & Trust Co. v. Pavlich (1980), 84 Ill. App. 3d 1080, 1082, 406 N.E.2d 164, 166.

The Jockey Club made a general appearance in the circuit court, and therefore, waived its right to contest that court’s in personam jurisdiction.

The Jockey Club’s first motion was entitled “Special and Limited Appearance,” and was a proper special appearance, limited to asserting that Illinois lacked jurisdiction. Its second motion, however, entitled “Motion to Dismiss,” was a general appearance, because of the absence of the special and limited appearance language. A special appearance must be designated a special appearance to prevent it from being construed as a general appearance (Greenberg v. Neiman (1943), 320 Ill. App. 99, 49 N.E.2d 817), and an appearance not shown as special must be taken as general. Flake v. Carson (1864), 33 Ill. 518.

The Jockey Club, however, argues that its motion to dismiss was a nullity, saying: (1) the circuit court had dismissed the complaint, ruling that it lacked jurisdiction, (2) the motion to reconsider did not stay the effect of dismissal, and therefore, (3) the circuit court, even if it had had jurisdiction, had lost it because more than 30 days had elapsed from entry of the order sustaining the special and limited appearance. The net result, defendant argues, is that since 30 days had elapsed, the motion to dismiss filed by The Jockey Club is a nullity, conferring no jurisdiction.

This argument fails. The question is not the effect of the motions to reconsider. The question is whether The Jockey Club submitted to the jurisdiction of the court by filing the motion to dismiss after the court had sustained its special and limited appearance. Whereas the effect of motions to reconsider focuses on the court and its retention of jurisdiction, submission to jurisdiction focuses on the defendant and the defendant’s acts. (See, e.g., Bradshaw v. Pellican (1987), 152 Ill. App. 3d 253, 256, 504 N.E.2d 211, 213 (“[t]he critical question is whether defendant has taken any step”); McKnelly v. McKnelly (1976), 38 Ill. App. 3d 637, 639, 348 N.E.2d 500, 502 (“[ajny action”); Hackler v. Cardinal Newman College (1979), 71 Ill. App. 3d 665, 389 N.E.2d 960; People ex rel. Covington v. Johnson (1967), 79 Ill. App. 2d 266, 224 N.E.2d 664.) Accordingly, in the case at bar, we look to defendant’s act of filing its motion to dismiss, and find that such conduct was sufficient to constitute a waiver of the jurisdictional issue, and submission to the power of Illinois courts. Therefore, the effect of the motion to reconsider is irrelevant.

To drive the point past the finish line, assume The Jockey Club’s strongest position is true. Assume the court did not have jurisdiction, that the motion to reconsider did not operate to stay the time, and whatever jurisdiction that once existed evaporated. By analogy then, the case would look like a case where the court never had obtained jurisdiction, for example, because of no service of process, but in which defendant appeared anyway, thereby conferring jurisdiction. In that case, the lack of jurisdiction before submission by defendant is irrelevant. Likewise, here it is irrelevant whether jurisdiction existed before The Jockey Club filed its second document, its motion to dismiss. By so filing, The Jockey Club agreed to “race” its case in Illinois and to abide by the judge’s call at the finish line.

II

Illinois also has jurisdiction over The Jockey Club because it is doing business here. Under the “doing business” doctrine, if a nonresident corporation is doing business in Illinois, it will be considered to have consented to being sued in Illinois. (Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 199, 429 N.E.2d 847, 851.) Doing business for the purposes of jurisdiction has been defined as operating within a State not occasionally or casually, but instead with a fair measure of performance and continuity. Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 429 N.E.2d 847.

The Jockey Club’s business activities in Illinois are neither occasional nor casual. Instead it operates in Illinois with a “fair measure of permanence and continuity,” and the Illinois legislature ensured this fact when it passed the Horse Racing Act of 1975. This Act provides that defendant will do business with every owner or breeder who wishes to race a thoroughbred in Illinois. Ill. Rev. Stat. 1985, ch. 8, par. 37 — 3.06(e).

The Jockey Club complains that even though the effect of the Illinois Horse Racing Act of 1975 creates a monopoly for the defendant, the monopoly came about because of the actions of the Illinois legislature and not through any actions of the defendant. We find this argument unpersuasive. The record does not reflect that defendant is an unwilling participant in the field of Illinois thoroughbred racing.

The Jockey Club further argues that the certificates of registration, necessary for thoroughbreds to race in Illinois, are not “products” or “goods.” Well, the livelihood of Illinois thoroughbred owners and breeders depends on The Jockey Club certificates.

The Jockey Club has purposefully directed its commercial efforts toward Illinois residents by sending them pamphlets which describe its services and its certificates and by selling them those services and certificates. The record establishes that The Jockey Club sent plaintiff literature explaining its services and fees. When plaintiff paid the fee and provided proof of ownership, The Jockey Club sent plaintiff a certificate of registration. But, that is not the end of the matter. There are ongoing obligations between The Jockey Club and its Illinois registrants which continue after the purchase of the original registration certificate. For example, every stallion owner must file a detailed yearly report of all thoroughbred mares bred to that stallion during that year. Additionally, all sales, transfers and deaths of registered horses promptly must be reported to defendant.

“There is no all-inclusive test for determining whether a foreign corporation is doing business in this State.” (Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 201, 429 N.E.2d 847, 852.) Our supreme court has stated that, “in general, the term means that the corporation is conducting business in Illinois ‘of such a character and extent as to warrant the inference that the corporation has subjected itself to the jurisdiction’ *** [of Illinois].” Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 201, 429 N.E.2d 847, 852, quoting Pembleton v. Illinois Commercial Men’s Association (1919), 289 Ill. 99, 104, 124 N.E. 355, 358, appeal dismissed (1920), 253 U.S. 499, 64 L. Ed. 1032, 40 S. Ct. 483.

While admittedly there is no all-embracing test for determining whether a foreign corporation is doing business in Illinois for jurisdictional purposes, measured by any reasonable standard, we are satisfied that subjecting The Jockey Club to the jurisdiction of Illinois courts does not offend traditional notions of fair play. Defendant has more than minimal contacts with Illinois; it carries on its usual and customary business in Illinois when it routinely sends to and receives from Illinois literature, applications, fees, certificates of registration, and yearly reports.

An out-of-State corporation cannot fire economic salvos into this State, monopolize inside this State an entire economic field, force all who would compete to secure its imprimatur before being able to enter into business, reap the benefits of a monopoly granted by the People of this State, and then claim it is not doing business in this State, claim that the piece of paper which is the sine qua non, a Latin term meaning “that without which the thing cannot be,” is neither product nor goods. Such an out-of-State corporation is doing business in Illinois, is constructively present in Illinois, and the law of Illinois justifiably implies the assent of that corporation to service upon its agent in Illinois. See Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 199, 429 N.E.2d 847.

The circuit court has jurisdiction for two reasons. First, defendant entered a general appearance when it filed its second motion to dismiss. Second, defendant was doing business in Illinois.

Therefore, the order of the circuit court of Madison County quashing service of process and dismissing defendant from this action is reversed and this cause is remanded for further proceedings.

Reversed and remanded.

LEWIS, P.J., and GOLDENHERSH, J., concur.

      The Illinois Horse Racing Act of 1975 (Ill. Rev. Stat. 1985, ch. 8, par. 37— 3.06(e)) defines thoroughbred horse racing as:
      “ ‘Thoroughbred horse racing’ means the form of horse racing in which each participating horse is a Thoroughbred horse, registered as such with and meeting the requirements of and approved by The Jockey Club of New York (including racing permits issued to foreign Thoroughbred horses), mounted by a jockey and engaged in races on the flat. Thoroughbred horse racing shall include a steeplechase or hurdle race.”

      The second motion to dismiss also contained assertions beyond the jurisdictional question. Specifically, defendant alleged that it had not received a copy of a bankruptcy order or certain other discovery material even though more than 30 days had elapsed since plaintiff had been ordered to produce such materials.


author: JUSTICE GOLDENHERSH

text:
    GOLDEN RULE INSURANCE COMPANY, Plaintiff-Appellant, v. BRIAN ROBEZA, Adm’r of the Estate of Vivian Robeza, Defendant-Appellee.
    Fifth District
    No. 5—89—0228
    Opinion filed February 16, 1990.
    Guy E. McGaughey, Jr., of McGaughey & McGaughey, Ltd., of Lawrenceville, for appellant.
    Max C. Tedford, of Cox, Phillips, Weber, Tedford & Heap, of Robinson, and Robert G. Dyer, of Dyer & Walton, of San Diego, California, for appel-lee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

This is an interlocutory appeal pursuant to Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307(a)(1)) brought by plaintiff, Golden Rule Insurance Company, from an order of the circuit court of Lawrence County denying plaintiff’s motion to vacate the stay of the trial proceedings and for immediate trial of the issues in the Illinois case because of the status of a pending case between the same parties in California. In this cause plaintiff raises four issues: (1) whether the trial court abused its discretion in denying plaintiff’s request to vacate the stay; (2) whether the California trial court’s post-trial orders and judgment have res judicata or collateral estoppel effect in lili-nois; (3) whether the preexisting condition clause in the Golden Rule policy was addressed in the California litigation; and (4) whether defendant, Brian Robeza, administrator of the estate of Vivian Ro-beza, has abused the Illinois trial and appellate process. We affirm and remand.

In this appeal both parties filed motions to supplement the record on appeal to include a decision of the California Court of Appeals, Fourth Appellate District. This court denies both parties’ motions. Plaintiff also filed a motion to impose sanctions against defendant pursuant to Supreme Court Rule 375(b) (134 Ill. 2d R. 375(b)). We likewise deny this motion. Therefore, our review today is limited to the same facts that were before the trial court. We will briefly summarize those facts.

Defendant, Brian Robeza, is the administrator of the Illinois estate of his deceased mother, Vivian Robeza. Vivian resided in Illinois and applied to plaintiff for a health insurance policy on May 1, 1984. She made the application through an independent insurance agent who sold policies for plaintiff. A policy was issued to Vivian stating it was effective May 2, 1984. Shortly after this date, Vivian became ill. She traveled to California to stay with her daughter, where her condition worsened and she was hospitalized. She ultimately died at her daughter’s home in California on August 1, 1987. Due to her illness, her family submitted claims to plaintiff. Plaintiff refused to pay any benefits on the policy, contending that it had never gone into effect since Vivian had failed to answer question number 13 on the application form, and plaintiff, through the independent agent, had informed her that she would have to sign an amendment to the policy incorporating her answer to question number 13 before the policy would take effect. Plaintiff had insisted Vivian execute this amendment in the presence of the independent agent. On July 3, 1984, plaintiff notified Vivian that her file was being closed because she had not returned to Illinois to sign the policy. The claims remain unpaid.

On November 2, 1984, Vivian’s family filed an action in San Diego County, California, against plaintiff, alleging tortious breach of the insurance contract. On November 5, 1984, plaintiff filed a complaint in the circuit court of Lawrence County, Illinois, requesting declaratory relief by finding: (1) that insurance coverage for Vivian Ro-beza had never gone into effect; (2) that the medical expenses incurred were not covered under the policy because they arose from a preexisting condition; or (3) that the insurance contract should be rescinded due to misrepresentations by the applicant.

The case in California and the case in Illinois have been a constant source of conflict for over 4Nz years. On August 7, 1985, defendant filed an amended notice of interlocutory appeal under Supreme Court Rule 307 (107 Ill. 2d R. 307), a petition for leave to appeal under Supreme Court Rule 306(a)(l)(ii) (107 Ill. 2d R. 306(a)(l)(ii)), and a motion to stay the Illinois proceedings. Defendant’s appeals were dismissed by this court in No. 5 — 85—0513. Plaintiff then took evidentiary depositions of witnesses. Thereafter, defendant obtained a certification under Supreme Court Rule 308 (107 Ill. 2d R. 308) on the issue of another cause pending between the parties. We granted leave to appeal, and in a published decision dated December 8, 1986, held against defendant. (Golden Rule Insurance Co. v. Robeza (1986), 151 Ill. App. 3d 801, 502 N.E.2d 1070 (hereinafter referred to as Golden Rule I).) Defendant filed a petition for leave to appeal to the supreme court, which was denied. Defendant filed another motion on May 28, 1987, seeking a change of venue intermixed with a claim of forum non conveniens, citing Macoupin County, Illinois, as a proper and more convenient forum. Before the case could be set for trial in Illinois, the California case commenced a jury trial on June 2, 1987. The California jury returned a verdict that Vivian had made material misrepresentations on her application which allowed this plaintiff to void the policy. However, the California court entered a judgment n.o.v. in favor of this defendant on a number of issues, holding this plaintiff liable to the estate of deceased for bad faith and to deceased’s children for negligent infliction of emotional stress. A new trial was also granted by the court. An appeal and cross-appeal to the California appellate court followed. Defendant’s motion to transfer venue to Macoupin County intermixed with forum non conveniens was denied by the Illinois circuit court, and an order was entered on January 27, 1988, that the Illinois trial should proceed on May 16, 1988. Defendant again came before this court seeking review of the trial court’s ruling on venue intermixed with the forum non conveniens issue. On April 29, 1988, we entered an amended order denying defendant’s petition for leave to appeal. On April 11, 1988, defendant filed a motion to dismiss plaintiff’s complaint, arguing that the California trial court’s post-trial orders and judgment were res judicata as to the issues to be tried on plaintiff’s complaint in this cause. On May 9, 1988, defendant filed a motion to stay these proceedings which the trial court granted on May 11,1988. It is this decision that plaintiff appeals.

Plaintiff’s first issue on appeal is whether the trial court abused its discretion in denying plaintiff’s request to vacate the stay. Plaintiff argues that the pendency of the California action and its relationship to the Illinois case were considered in depth by this court in our 1986 published opinion in Golden Rule I. In that case, we affirmed the trial court’s decision to allow the Illinois case to proceed despite the fact that an action involving virtually the same parties and the same issues had been filed in California. Plaintiff contends that the trial court disregarded our “mandate” in that opinion by later staying the Illinois trial. Ultimately, plaintiff seeks to have the trial court’s decision reversed with directions to proceed to trial. Defendant responds that Golden Rule I was not a “mandate” requiring the Illinois action to proceed to trial, but was merely a finding that the lower court had not abused its discretion in refusing to stay the Illinois action. Defendant also contends that the circumstances between the parties changed substantially once the California court returned its judgment. Allowing the Illinois action to proceed to judgment with the California judgment as substantial evidence could create a legal monstrosity, as the California judgment was still pending on appeal. Defendant argues that the trial court was within its discretion to order a stay in order to avoid the risk of conflicting judgments. We agree that the circuit court acted within its discretion.

The instant issue is virtually identical to. the issue we decided in Golden Rule I. As such, our discussion here will parallel that opinion. Section 2 — 619(a)(3) of the Code of Civil Procedure provides that a motion for dismissal “or for other appropriate relief” may be made where “there is another action pending between the same parties for the same cause.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(3).) The purpose of this statute is to avoid duplicative litigation. (A.E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 252, 419 N.E.2d 23, 27.) Nevertheless, even when the “same cause” and “same parties” requirements are met, this section does not require automatic dismissal. The decision to grant or to deny the motion is clearly discretionary with the trial court. (Kellerman v. MCI Telecommunications Corp. (1986), 112 Ill. 2d 428, 447, 493 N.E.2d 1045, 1053.) In Golden Rule I we found that the issue, therefore, was not whether we would have dismissed or stayed the Illinois action, but whether the trial court abused its discretion in refusing to do so. We found that the trial court did not abuse its discretion and remanded the cause for further proceedings consistent with our opinion. Our decision in Golden Rule I did not order the trial court to proceed to trial as plaintiff suggests. We found that the trial court did not abuse its discretion by refusing to dismiss or stay the Illinois action at that time.

Today, we are again asked to decide whether the trial court abused its discretion, this time by staying the trial. Since we decided Golden Rule I, on December 8, 1986, the California action proceeded to trial with the resulting verdict, judgment and appeal described above. These additional events distinguish the instant case from that of Golden Rule I.

In the instant case, the trial court relied on Wiseman v. Law Research Service, Inc. (1971), 133 Ill. App. 2d 790, 270 N.E.2d 77, in granting defendant’s motion to stay the Illinois trial. In Wiseman, the defendant moved to stay the trial in Illinois pending the outcome of an appeal in New York between the same parties concerning the same cause of action. The Wiseman court reversed the decision of the trial court and granted the defendant’s motion to stay, finding that while it was unclear to what use the New York judgment following appeal might be put, indications were that it could be used as res judicata. The Wiseman court therefore found it best to restrain the plaintiffs from prosecuting the case in Illinois pending the outcome of the New York case, with the caveat that should the trial court subsequently determine that the New York action was not proceeding apace, the stay could be set aside.

Plaintiff contends that Wiseman is distinguishable from the instant case because it involves a New York judgment, which, unlike a California judgment, is final for purposes of res judicata while on appeal. A California judgment is not final while an appeal therefrom is pending. (People ex rel. Gow v. Mitchell Brothers’ Santa Ana Theater (1980), 101 Cal. App. 3d 296, 161 Cal. Rptr. 562.) While plaintiff is correct that the cases are distinguishable, we cannot say that the trial court abused its discretion. The trial court recognized the potential for inconsistent judgments once the appeal was final and found that judicial economy was better served by granting a stay. This is not to say that the trial court may not determine at a future date, especially with the publication of the California appellate court decision, that the Illinois case should proceed to trial.

Although plaintiff raised several other issues, this court finds that these issues need not be addressed at this time. Just as our prior decision in Golden Rule I was not a mandate to proceed to trial immediately, we likewise are not saying by this decision that the instant case should never be heard in Illinois. Our decision focuses on our determination that the trial court did not abuse its discretion in granting defendant’s motion to stay the case and in denying plaintiff’s request to vacate the stay.

For the foregoing reasons, the order of the circuit court of Lawrence County is affirmed and the cause is remanded for proceedings not inconsistent with this opinion.

Affirmed and remanded.

HARRISON and WELCH, JJ., concur.


author: PRESIDING JUSTICE LEWIS

text:
    JANE A. BISHOP et al., Plaintiffs-Appellants, v. ROCKWELL INTERNATIONAL CORPORATION et al., Defendants-Appellees.
    Fifth District
    No. 5—89—0114
    Opinion filed February 16, 1990.
    William W. Schooley, of Law Offices of William W. Schooley, of Granite City, for appellants.

      Churchill & McDonnell, of Belleville (Allen D. Churchill and Joseph M. Leberman, of counsel), for appellee R and R Decorators, Inc.
    Michael Reda, of Evans & Dixon, of Edwardsville, for appellee Rockwell International Corporation.
    David A. Bloch, of Bernard & Davidson, of Granite City, for appellee Lipps Construction Company..
    Daniel L. Schmidt, of Shepherd, Sandberg & Phoenix, P.C., of St. Louis, Missouri, for appellee Pre-Fab Sheeting Erectors.
   PRESIDING JUSTICE LEWIS

delivered the opinion of the court:

The plaintiffs, Jane A. Bishop, Russell Keith Bishop, Crystal Bishop Hefner, John Paul Burge and Christopher E. Burge, brought an action in St. Clair County against the defendants, Rockwell International Corporation, Lipps Construction Company, Pre-Fab Sheeting Erectors and R and R Decorators, Inc., to recover damages for the death of Russell H. Bishop, spouse of Jane A. Bishop, which resulted from an alleged violation of the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.) by the defendants. Each of the defendants separately moved to transfer the action under the doctrine of forum non conveniens, and the trial court granted the motions to transfer. This court granted plaintiffs petition for leave to appeal under Supreme Court Rule 306(a)(l)(ii) (107 Ill. 2d R. 306(a)(l)(ii)). The sole issue presented to this court is whether the trial court abused its discretion in granting the defendants’ motions for transfer.

The plaintiffs’ complaint alleged that Russell Bishop was killed on a construction project while he was tightening bolts while standing on a man-lift or crane. The complaint was in four counts and alleged that each of the defendants, in different counts, was liable under the Structural Work Act.

In each of the defendants’ motions to transfer this case from St. Clair County to Marion County under the doctrine of forum non con-veniens, the defendants had conceded venue. However, before the trial court and on appeal, the defendants argue that St. Clair County has no relevant connection with the plaintiffs’ suit, that Marion County has a greater number of relevant connections and that the case can be more conveniently tried in Marion County. The plaintiffs maintain that there are no strong factors for any particular county; that there is a balance of accessibility for witnesses and that this, combined with plaintiffs’ right to choice of venue, mandates the reversal of the trial court’s order.

The record before the trial court consisted of affidavits, memo-randa and arguments concerning connections and convenience. This record reflects that the situs of the accident was the Rockwell facility in Marion County and that Russell Bishop was pronounced dead at St. Mary’s Hospital in Centraba, Illinois, Marion County.-The inquest of Bishop’s death was held by the Marion County coroner, and the accident was investigated by the Marion County authorities. Most of the witnesses live in Marion County and the surrounding counties. The large platform crane upon which Bishop’s accident occurred is stored in Marion County. The owner of the equipment, one of the defendants, is located in Marion County, and another of the defendants has its place of business in Marion County. The evidence before us shows that there is a greater congestion of cases on the court’s docket in St. Clair County than in Marion County. The plaintiffs live in Jefferson County, which is adjacent to Marion County, as did the deceased. Plaintiffs maintain that the list of witnesses shows addresses from numerous counties, and the trial court, in its order, gave the defendants an option as to which county they desired this case transferred. While the trial court did not specify a particular county in its order for transfer, it appears from the record that most of the witnesses and parties were in either Marion or Jefferson Counties.

On the issue of intrastate forum non conveniens, the case of Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 506 N.E.2d 1291, is instructive. The Bland case sets forth the law in this field. Bland dictates that broad discretion is vested in the trial court in determining whether particular circumstances require transfer of a cause under forum non conveniens, but that a court’s decision can be reversed on review if it can be shown that the court abused its discretion in deciding this issue as it did. Bland states that the following factors are to be considered by the trial court in deciding a forum non conveniens motion:

“Factors relating to the private interests of the litigants include the ‘relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.’ [Citations.]
Public factors relevant here include the administrative difficulties flowing from court congestion; ‘a local interest in having localized controversies decided at home’; and the unfairness of burdening citizens in an unrelated forum with jury duty. [Citations.]” Bland, 116 Ill. 2d at 224, 506 N.E.2d at 1294.

Whether a forum non conveniens motion should be granted or denied rests within the sound discretion of the trial court, and its ruling will not be disturbed absent an abuse of discretion. (Darnell v. Ralph Korte Equipment Co. (1986), 144 Ill. App. 3d 564, 494 N.E.2d 1206.) Thus, on review of a trial court’s decision regarding a forum non con-veniens motion, the question is not whether a reviewing court would have weighed the factors differently or would have resolved the issue as the trial court did, but is whether the trial court’s decision constitutes an abuse of discretion. Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 497 N.E.2d 745; Darnell, 144 Ill. App. 3d 564, 494 N.E.2d 1206.

The supreme court went on in Bland to state:

“Forum non conveniens is an equitable doctrine. It presupposes the existence of more than one forum with jurisdiction over the parties and the subject matter. (Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 364; People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 112.) Under the doctrine, a court may decline to exercise jurisdiction of a case whenever it appears that there is another forum with jurisdiction of the parties in which trial can be more conveniently had. Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 514; Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill. 2d 73, 76.
In deciding whether the doctrine applies, a court must balance private interest factors affecting the convenience of the litigants and public interest factors affecting the administration of the courts. See Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67 S. Ct. 839, 843.” Bland, 116 Ill. 2d at 223-24, 506 N.E.2d at 1294.

In the instant case the trial court granted the defendants’ motions rather than denying them. Although most of the cases come up under the latter situation, we conclude that the rule of law on abuse of discretion is applicable whether the motion is denied or granted. Certainly, under the facts in this case the trial court did not abuse its discretion.

In connection with the public interest factors, particularly those which relate to the administration of the courts, the courts have long held that the trial court is in a better position to assess the burden posed by its own docket, and we will not second-guess its judgment. Baker v. Burlington Northern R.R. Co. (1986), 149 Ill. App. 3d 674, 679, 500 N.E.2d 1113, 1118; Darnell, 144 Ill. App. 3d 564, 494 N.E.2d 1206.

The doctrine of forum non conveniens permits a court to decline to exercise jurisdiction over a case properly before it where there appears to be another forum that could better serve the convenience of the litigants and promote the ends of justice. It is not our duty to reweigh the various factors set forth in Bland, but merely to determine whether or not the trial court abused its discretion in granting the motions. We find that the trial court did not abuse its discretion in granting the defendants’ motions to transfer this action.

We therefore affirm the judgment of the trial court and remand for further proceedings consistent with this opinion.

Affirmed and remanded.

HOWERTON and GOLDENHERSH, JJ., concur.


text:
    GARY ZITZMANN, Plaintiff-Appellant and Cross-Appellee, v. KENNETH L. MILLER et al., Defendants-Appellees and Cross-Appellants (Lynn Zitzmann, Plaintiff).
    Fifth District
    No 5—88—0292
    Opinion filed February 21, 1990.

      Robert L. Douglas and Fred W. Johnson, both of Law Offices of Robert L. Douglas, Ltd., of Robinson, for appellant.
    James C. Kearns and John D. Flodstrom, both of Heyl, Royster, Voelker & Allen, of Urbana, for appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

In this negligence action, plaintiffs Gary and Lynn Zitzmann brought suit against defendants Kenneth L. Miller and Prairie Pizza, Inc., d/b/a Domino’s Pizza, for injuries sustained by Gary when a pizza delivery truck driven by defendant Miller struck the plaintiff’s vehicle. Lynn Zitzmann’s claim was based on a loss of consortium. Prior to trial, the court entered summary judgment in favor of the plaintiffs on the issue of liability, and trial was held solely on the issue of damages. The trial court’s finding of liability is not at issue in this appeal. After hearing the evidence, the jury returned a verdict in favor of Gary Zitzmann in the amount of $69,000, which was itemized as follows:

aggravation of a preexisting condition: $ 3,000
disability and disfigurement: $ 3,000
past and future pain and suffering: $ 6,000
past and future medical expenses: $15,000
past and future lost wages: $42,000.

The jury also returned a verdict in favor of Lynn Zitzmann for loss of consortium in the amount of $13,500. Plaintiff Gary Zitzmann appeals from the denial of his post-trial motion seeking a new trial or an addi-tur; defendants cross-appeal from the denial of their motion for a remittitur. We affirm.

The evidence adduced at trial indicates that on February 20, 1986, a pickup truck driven by plaintiff Gary Zitzmann was struck from behind by defendant’s pizza delivery truck while waiting at a red light in Effingham, Illinois. Defendant Miller testified that he was traveling approximately 10 miles per hour at the time of impact. The damage to plaintiff’s truck was slight, while the pizza truck sustained approximately $1,100 damage. Approximately a week following the accident, the plaintiff went to Dr. Serra complaining of neck pain. The plaintiff subsequently developed pain in his lower back and was referred to Dr. Menguy, an orthopedic surgeon at Carle Clinic in Urbana, Illinois, on March 21, 1986. Dr. Menguy determined that the plaintiff had a defect of the spine known as spondylolisthesis, a condition which causes instability and slippage of the vertebra. The doctor believed that this condition existed before the automobile accident and was aggravated by it. In June of 1986 the plaintiff underwent a spinal fusion. After the operation plaintiff had to wear a corset-type back brace and could not work. Follow-up examinations indicated that the surgery was successful, but the plaintiff continued to complain of some pain. On December 23, 1986, Dr. Menguy advised plaintiff that he could stop wearing the back brace and he should begin exercising to strengthen his back. The plaintiff last saw Dr. Menguy on January 27, 1987, at which time the plaintiff was told he could return to work, but that he should not lift objects weighing more than 50 pounds. Because the plaintiff missed his next appointment and Dr. Menguy did not see him thereafter, the doctor was unable to say whether the weight restriction was permanent.

The plaintiff was also treated by Dr. Eric A. Baddour, a pain specialist at the Carle Clinic. Dr. Baddour recommended that if the plaintiff continued to have problems with pain after he was released by Dr. Menguy, then he should be placed in an in-patient pain management program. The cost of this program was $6,000 to $8,000.

The plaintiff’s employer testified that he would not rehire the plaintiff because of the weight restriction. Prior to the accident, plaintiff was employed as a machinist earning approximately $25,000 to $30,000 per year.

Richard Brown, a vocational rehabilitation specialist, was retained by the defendants to meet with plaintiff and determine what types of work he was capable of doing. Brown testified that the plaintiff was qualified for employment in such areas as quality control, instrument and machine repair, and machine shop and mechanical maintenance supervision. Brown performed a labor market survey and found several potential jobs for the plaintiff.

Plaintiff Gary Zitzmann testified that he was in good health prior to the accident, but had experienced pain ever since. He stated that his physical activities, such as working around the house and fishing and dancing, were hampered by his pain. Plaintiff stated that there were lots of jobs he could do, but they were not in his field.

The plaintiff’s initial contention on appeal is that the jury’s verdict was inconsistent with the judicial admissions of defense counsel in closing argument. Specifically, plaintiff refers to the following portion of defendants’ closing argument to the jury:

“It would be silly to suggest it would not be painful and uncomfortable here. Mr. and Mrs. Zitzmann said he had to wear a corset for two months constantly. I think for the two of them, I’ll try not to go line by line as Mr. Douglas did, but I think $25,000 is a very fair figure for that year of discomfort. So that comes to about $50,000 in wages, a little over $6,000 in medical bills, I think a tad under $6,000 is what it is, and $25,000 for other things.”

Plaintiff argues that the jury’s award of $42,000 for lost wages is not in accord with defense counsel’s “unequivocal and certain” admission that plaintiff was entitled to $50,000 for lost wages. Plaintiff relies primarily on Lowe v. Kang (1988), 167 Ill. App. 3d 772, 521 N.E.2d 1245, where the court held that statements made by an attorney in closing argument may be the basis upon which a trial court finds a judicial admission.

Lowe, however, is clearly distinguishable from the instant case. In Lowe, the plaintiff was struck by defendant’s car in a shopping center parking lot and plaintiff sued under a negligence theory. Defendant denied he was negligent and also pleaded the defense of comparative negligence. During defense counsel’s closing argument, counsel repeatedly and unambiguously stated that both parties were at fault. Illustrative of the comment made by defense counsel are the following:

“There is no question that there was fault on the part of both parties to this occurrence. *** I’m not trying to say here that Steven Kang did nothing wrong. I said that in the beginning. No one is saying that you’re going to return a not guilty verdict in my client’s favor. No way. I would be less than reasonable. I would be not very frank with you if I tried to argue that to you today. There is no question that he is somewhat responsible for this. He is in part responsible. *** I’m not saying that Steven Kang is totally innocent in this case, but there is also some responsibility on the part of Mrs. Lowe. You have to determine the comparative fault of the plaintiff in the case. I am going to suggest to you that I believe the fault of my client and the fault of Mrs. Lowe are equal. *** As I’ve said, I believe this is a 50/50 case. Both parties were equally at fault.” Lowe, 167 Ill. App. 3d at 778-79, 521 N.E.2d at 1249.

After defense counsel’s closing argument, the plaintiff in Lowe moved for a directed verdict as to defendant’s liability, arguing that defense counsel had admitted the liability of his client. The trial court agreed that defense counsel had admitted that defendant was at fault and directed a verdict on the issue of defendant’s liability in favor of plaintiff. On appeal, the defendant argued that the trial court abused its discretion in finding that defense counsel’s statements were a judicial admission of liability. The appellate court recognized that whether a statement by an attorney in the course of trial is a judicial admission depends on the circumstances of the case, and that the statement must be given a meaning consistent with the context in which it is found. (Lowe, 167 Ill. App. 3d at 777, 521 N.E.2d at 1248.) The court held that, viewed in the context of defendant’s entire closing argument, counsel’s statements were not advertent or simple misstatements, but were clear admissions of fault.

In the instant case, we find that defense counsel’s reference to lost wages of “about $50,000” does not constitute a binding judicial admission. Viewed in the context of counsel’s entire closing argument, it would appear that this remark was, at best, a mere suggestion to the jury regarding this particular element of damages. Earlier in his argument, defense counsel referred to the testimony of Richard Brown regarding the plaintiff’s prospects for employment and stated:

“There are plenty of jobs in the machinist specialty that don’t require lifting 50 pounds. But the problem is Mr. Zitzmann doesn’t think he can do those things. Again, I don’t think we are responsible for that. If Mr. Zitzmann is capable of going back to work and doesn’t, I don’t think we are responsible for that. And I think the evidence shows there is no good explanation why Mr. Zitzmann hasn’t had employment of any kind in the last two years. So ladies and gentlemen, we are not responsible for that.”

Under the circumstances of this case, and when viewed in the context of defense counsel’s entire closing argument, we find that counsel’s rather casual remark was not a judicial admission of the amount of plaintiff’s lost wages.

Plaintiff next contends that the jury’s award of damages was inadequate and bears no reasonable relationship to plaintiff’s loss. Plaintiff points out that he has not worked since the accident and that his employment prospects are diminished, he had to undergo spinal surgery, he may be permanently disabled, and he has in the past and continues to suffer great pain. Plaintiff also argues that the jury’s award of $6,000 to him for pain and suffering is inconsistent with the $13,500 awarded to his wife for loss of consortium. Plaintiff maintains that if his wife’s derivative claim is worth $13,500, then his direct claim for injuries “is worth at least as much or more.”

“The determination of an adequate verdict is peculiarly within the province of the jury and great weight must be given to its determination.” (McMahon v. Richard Gorazd, Inc. (1985), 135 Ill. App. 3d 211, 230, 481 N.E.2d 787, 800.) A reviewing court will not disturb the jury’s findings unless the damages are manifestly inadequate, a proven element of damages has been ignored, or if the amount awarded bears no reasonable relationship to the loss suffered. Collins v. Straka (1987), 164 Ill. App. 3d 355, 359, 517 N.E.2d 1147, 1150.

After reviewing the entire record, we find that the jury’s award is not manifestly inadequate and bears a reasonable relationship to the plaintiff’s loss. While the evidence of plaintiff’s injuries could have supported a larger verdict, the jury’s determination may have been influenced by any number of factors, including: (1) plaintiff’s failure to initially complain of lower back pain; (2) Dr. Menguy’s testimony that the plaintiff had experienced back trouble before the accident and that it was possible that the plaintiff would have had to undergo a spinal fusion even if the accident had not occurred; and (3) the testimony of Richard Brown, the vocational rehabilitation specialist, that jobs were available to the plaintiff. While some of these matters were disputed at trial, it was the jury’s function to determine the credibility of the witnesses and weigh the evidence. (Collins, 164 Ill. App. 3d at 360, 517 N.E.2d at 1151; Beckmeyer v. Alcala (1985), 135 Ill. App. 3d 166, 174, 481 N.E.2d 893, 898.) We will not substitute our judgment for that of the trier of fact. The mere fact that the plaintiff was disappointed by a verdict that was lower than expected does not require reversal. (Lee v. Chastang (1979), 79 Ill. App. 3d 622, 625, 398 N.E.2d 1250, 1252.) Nor do we believe that the “inconsistency” perceived by plaintiff between the amount of damages awarded to his wife for loss of consortium and his damages for pain and suffering requires a different result. Plaintiff offers no authority for the proposition that damages for pain and suffering must exceed those awarded to a spouse for loss of consortium, and we find nothing inherent in such a result to warrant disturbing the jury’s verdict.

We now address the defendants' contention on cross-appeal that the trial court erred in admitting the deposition testimony of Dr. Bad-dour regarding the possibility of future medical treatment at the Ca-rle Pain Clinic. The substance of Dr. Baddour’s testimony was that after examining the plaintiff and consulting with other members of the staff at the pain clinic, he recommended that the plaintiff enter an inpatient pain management program if the plaintiff was still experiencing pain after being released from' Dr. Menguy’s care. When asked whether he had an opinion based on a reasonable degree of medical certainty whether the pain program was necessary, the doctor answered:

“At the time we felt that it would be a possible necessity. We wanted to wait until Doctor Menguy was finished with his treatment. We were concerned at the time that that was a strong possibility.”

The defendants argue that Dr. Baddour’s opinion regarding the necessity of further treatment was mere speculation. They point out that the plaintiff’s last visit to Dr. Baddour was on January 6, 1987, at which time he was still under Dr. Menguy’s care; therefore, Dr. Baddour could not know whether treatment at the pain clinic was necessary since the plaintiff was still being treated. Defendants note that “damages may not be awarded on the basis on conjecture or speculation” (Schoeneweis v. Herrin (1982), 110 Ill. App. 3d 800, 808, 443 N.E.2d 36, 42) and “possible future damages are not compensable unless they are reasonably certain to occur” (Harp v. Illinois Central Gulf R.R. Co. (1977), 55 Ill. App. 3d 822, 827, 370 N.E.2d 826, 829), and they maintain that in the absence of testimony by Dr. Baddour that he believed at the time of his testimony that it was necessary for the plaintiff to attend the pain clinic, it was improper to allow testimony about the cost of the clinic and to allow the jury to consider it as an element of damages. We do not agree.

In Jeffers v. Weinger (1985), 132 Ill. App. 3d 877, 477 N.E.2d 1270, a doctor testified that it “was within the realm of possibility” that plaintiff would lose her foot as a result of the defendant’s negligence (Jeffers, 132 Ill. App. 3d at 884, 477 N.E.2d at 1275). On cross-examination, the doctor stated that tbe possibility of losing the foot was less than 1%. In rejecting the defendants’ argument that the testimony was speculative and should not have been admitted, the court stated: “We find that whether there is a 1% possibility or a 99% possibility, each is an element of damage which should be considered by the jury.” Jeffers, 132 Ill. App. 3d at 884, 477 N.E.2d at 1276.

In Cummings v. Chicago Transit Authority (1980), 86 Ill. App. 3d 914, 408 N.E.2d 737, a defendant argued that plaintiffs future medical expenses for a laminectomy were hot recoverable because they were not reasonably certain to occur. Plaintiffs witness had testified that such an operation was necessary ,to relieve the plaintiffs back pain; however, it had been postponed in 1975 and 1978 because of the risks posed by plaintiffs other health problems. When asked the status of the decision concerning future surgery, the witness stated that such a decision would require a balancing of the risks to the patient against the potential benefits. The appellate court found that the jury could have concluded from this testimony that the surgery was reasonably certain to occur in the future. Cummings, 86 Ill. App. 3d at 921, 408 N.E.2d at 742.

We believe Dr. Baddour’s testimony that after examining the plaintiff he agreed that there was a “strong possibility” that treatment at the pain clinic would be necessary was admissible as evidence of future damages. While it might have been preferable for the doctor to base his opinion on a recent consultation with the plaintiff, we find no error by the trial court in allowing the jury to weigh the testimony. Moreover, when Dr. Baddour’s testimony is considered in conjunction with that of the plaintiff that he intended to seek treatment at the pain clinic, it is apparent that there was sufficient evidence to support the jury’s award.

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

Affirmed.

WELCH and HOWERTON, JJ., concur.