author: JUSTICE DUNN

text:
    WALTER E. OLDENBURG, d/b/a Walter E. Oldenburg Plastering Contractor, Plaintiff and Counterdefendant-Appellee and Cross-Appellant, v. RALPH L. HAGEMANN, d/b/a Ralph’s Lathing and Dry Wall, Defendant and Counterplaintiff-Appellant and Cross-Appellee.
    Second District
    No. 2—89—1325
    Opinion filed January 9, 1991.
    — Rehearing denied February 15, 1991.

      Reese & Reese, of Rockford (Bernard P. Reese, Jr., of counsel), for appellant.
    Downey, Yalden, Shriver & Yalden, and Joyce A. O’Neil, of Law Offices of Donald L. Shriver, both of Rockford (Donald L. Shriver, of counsel), for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Ralph Hagemann, doing business as Ralph’s Lathing and Dry Wall (Hagemann), appeals from a judgment of the circuit court of Winnebago County awarding $23,306.54 to plaintiff, Walter Oldenburg, doing business as Walter Oldenburg Plastering Contractor (Oldenburg). On appeal, Hagemann contends that certain comments made and questions asked of witnesses by the trial judge were improper and that the trial judge erred by barring the testimony of an expert witness he wished to call. Oldenburg cross-appeals and argues that he was entitled to an award of prejudgment interest on the underlying judgment. We affirm.

Prior to the instant disputes, Oldenburg and Hagemann worked together as subcontractors for many years on a number of construction projects in northern Illinois and southern Wisconsin. The disputes in this case arose from two construction projects in which the parties were engaged as subcontractors. The first of these was for construction in a municipal building in Beloit, Wisconsin. The second was a project at Fort Atkinson High School.

Oldenburg alleged in count I of his second amended counterclaim that in May 1982 his bid for the Fort Atkinson High School project was accepted. Taking 12 subsequent change orders into account, the contract price was $192,184, of which Hagemann was to be paid $104,446. Hagemann failed to complete the work he agreed to perform. At the time Hagemann terminated work on the project, he had been paid $50,200. Oldenburg was forced to expend $67,431.51 in order to complete the work and, therefore, sought $13,185.51.

Oldenburg alleged in count II that his bid to perform certain construction work on the Beloit Municipal Building project was accepted in June 1982. Taking five subsequent change orders into account, the price was $199,193.89, including a credit of $19,614.93 for exterior studding supplied by the general contractor. Of this amount, Hagemann was to be paid $132,193.82. Hagemann was paid a total of $142,314.85 for this project by Oldenburg and was thereby overpaid in the amount of $10,121.03, which he refused to return to Oldenburg.

In counts III and IV, Oldenburg basically repeated the allegations of count II. Oldenburg stated in count III that the $10,121.03 overpayment should be restored to him in equity and good conscience. In count IV, Oldenburg alleged that Hagemann held the overpayment in trust.

Hagemann filed a four-count counterclaim against Oldenburg. Count I alleged that a total of $151,608.75 was due him on the Beloit Municipal Building project and that $9,293.90 of this sum remained to be paid. Count II alleged that Hagemann was still owed $1,199.50 for a project at Beloit College. The trial court directed a verdict in Hagemann’s favor on this count, and it is not at issue here. Hagemann alleged in count III that he was not furnished with adequate specifications for the Fort Atkinson High School project, and he was owed a sum in excess of $15,000.

Count IV of the counterclaim was dismissed prior to trial, as was Hagemann’s third-party complaint against architect Richard Johnson. These dismissals were affirmed by this court in an earlier appeal (Oldenburg v. Hagemann (1987), 159 Ill. App. 3d 631) and are not at issue here. While the third-party complaint was still pending, Johnson, the third-party defendant, filed interrogatories requesting the name of any expert witness Hagemann intended to call at trial. Hagemann filed a response on March 12, 1986, in which he stated he would call David Jenkins, an architect, who. would testify about bidding procedures and the responsibilities of contractors, subcontractors, and architects in connection with bids and the materials to be used on jobs.

At a pretrial conference on April 21, 1989, the trial judge asked the attorneys for Hagemann and Oldenburg whether they intended to call any expert witnesses to testify at trial. Hagemann’s attorney responded, “No.” At a subsequent pretrial hearing on May 12, 1989, Hagemann’s attorney advised the court and opposing counsel that he intended to call David Jenkins as an expert witness and that his previous statement that he did not intend to call any experts was a mistake. Oldenburg’s counsel filed a motion to bar Jenkins from testifying pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220). The trial court granted the motion on the basis that Jenkins was not properly disclosed under the rule.

James Heidt testified that he was vice-president of Klobucar Construction Company, general contractor for the Beloit Municipal Building project. Heidt received a bid from Oldenburg of $220,000 on September 22, 1981, for light gage steel framing, lathing work, drywall work, acoustic ceiling tile, fireproofing, and insulation work. Oldenburg’s bid became a part of Klobucar’s bid proposal to the City of Beloit, which awarded the contract to Klobucar.

On March 8, 1982, Heidt had a meeting with Oldenburg and Hagemann to discuss the project. The three agreed to reduce the price for the project to $212,000. The $8,000 reduction occurred primarily because Oldenburg’s bid included $27,500 as the cost of purchasing studs, but Klobucar had already purchased such studs from Bostwick Company for $19,614.93.

Heidt testified that Klobucar originally assigned the purchase order from Bostwick in the above amount to Oldenburg at the March meeting by agreement. Bostwick subsequently demanded payment from Klobucar, however, and Klobucar paid the sum that was due. Klobucar then credited the $19,614.93 payment against the amount due to Oldenburg. As a result of several other change orders, which are orders varying the contract price because of modifications in the work to be performed as the project progresses, the final amount due Oldenburg was $199,193.19.

Kenneth Kline testified that he was president of Corporate Construction, Limited, the contractor on the Fort Atkinson High School project, from 1975 until 1988. Kline’s company received and accepted a bid of $142,071 from Oldenburg and Hagemann to perform subcontracting work on the project. After several change orders were issued, the price was modified to $192,184. Work commenced in June 1982 on the project. Oldenburg did plastering while Hagemann did some lathing and installed acoustical ceiling tile.

According to Kline, Hagemann failed to show up at the project site one day in April 1983 and refused thereafter to work on the project. Oldenburg finished the work Hagemann had failed to complete. Kline testified that Hagemann demanded an extra $10,000, which he did not receive. Kline also testified that section 9500 of the project manual called for the installation of fire-rated ceiling tile.

Richard Johnson testified that he was a design architect for the Fort Atkinson High project. His office prepared the project manual and several addenda regarding the project. According to Johnson, section 9500 of the project manual stated that fire-rated ceiling tile would be necessary in some areas. Addendum one specified where such tile would have to be installed. Johnson only gave the manual and addenda to the prime contractors, not to Oldenburg or Hagemann.

Johnson testified further that some time before the work commenced, Hagemann went to his office with ceiling tile samples. Johnson approved two of the samples for use on the project; one was fire-rated, and one was not. In June 1983, after Hagemann had ceased work, Johnson inspected the ceiling and noticed a number of areas in which the tile that had been installed was not fire-rated but should have been according to the specifications and the local fire code. Oldenburg tore out the tile and replaced it. Approximately 30% to 40% of the tile installed by Hagemann had to be torn out and replaced.

Walter Oldenburg testified that he and Ralph Hagemann bid a number of construction projects together. Oldenburg would usually submit the bid if the project was in southern Wisconsin, and Hagemann would submit the bid if the project was in northern Illinois. Oldenburg submitted a bid on the Beloit Municipal Building project after Hagemann supplied a figure for the work he would perform. Oldenburg was to do plastering and fire-proofing on the project; Hagemann was to install interior and exterior studs, do drywall and lathing work, and perform other tasks.

Oldenburg’s testimony concerning the amount of the original bid and the reasons for the subsequent $8,000 price reduction was consistent with James Heidt’s testimony. Oldenburg also agreed with Heidt that the Bostwick purchase order was assigned at the March 8, 1982, meeting at which Oldenburg, Heidt, and Hagemann were present. Several months later, Oldenburg received a change order from Klobucar deducting the $19,614.93 due Bostwick from the contract price. After several other change orders were issued, the final contract price was $199,193.89.

Originally, $152,582 was to be paid to Hagemann on the Beloit Municipal Building project, according to Oldenburg. Taking the Bostwick deduction and other change orders into account, however, the final amount due Hagemann was $132,193.82. Oldenburg paid Hagemann a total of $142,314.85, thus overpaying him $10,121.03. Oldenburg spoke to Hagemann about the overpayment. Hagemann said he had already spent the money but would see what he could do. Oldenburg also sent Hagemann a statement requesting Hagemann return the overpaid sum, but he never did so.

With regard to the Fort Atkinson High project, Oldenburg testified that he received a card from Corporate Construction inviting him to submit a bid. Oldenburg then picked up the specifications for the job, including the project manual and the addenda, and calculated his portion of the bid. He then gave Hagemann the manual, prints, and addenda so Hagemann could calculate his portion of the bid. Oldenburg subsequently received a bid from Hagemann and then submitted a bid of $124,071 to Corporate Construction, which he raised to $142,071 later in the day. Hagemann’s portion of the bid included drywall work and installation of steel studs and acoustic ceiling tile.

According to Oldenburg, Hagemann contacted him in May 1982 to explain that he had not noticed he would have to tear out some ceiling tile at Fort Atkinson High School. Oldenburg told Hagemann that he had an additional $18,000 available if Hagemann needed it. Hagemann accepted the additional funds and commenced work on the project.

Hagemann walked off the job in the spring of 1983 and refused to return to work. Shortly thereafter, Hagemann and Oldenburg met with Kenneth Kline to attempt to resolve the situation. Hagemann never returned to work on the site, however. At that point, Hagemann had been paid $50,200. Had he completed the job, Hagemann would have received $104,446. Oldenburg was forced to pay $67,431.51 to complete the remainder of the work that was to have been done by Hagemann. This included the cost of hiring carpenters and the cost of removing and replacing some of the ceiling tile Hagemann had installed. After Hagemann left the job, an inspection revealed that he had installed ceiling tile that was not fire-rated in many areas where fire-rated tile should have been installed. Oldenburg sought $13,185.51 in damages for Hagemann’s alleged breach of contract, the difference between the amount Oldenburg actually paid for the work Hagemann was to perform and the $104,446 he would have paid if Hagemann had finished the work.

Ralph Hagemann testified that at his March 1982 meeting with Oldenburg and James Heidt of Klobucar, the Bostwick purchase order was not mentioned, nor was any $19,000 credit to Klobucar. According to Hagemann, Heidt told Oldenburg that if he reduced his bid to match that of the lowest bidder, he could have the job. Oldenburg then asked Hagemann to lower his bid by $7,100, and Hagemann did so, enabling Oldenburg to reduce the bid to Klobucar. After the meeting, Hagemann submitted a proposed contract to Oldenburg which stated “general contractor to supply exterior studding” and set forth a price of $145,582. Myrna Hagemann, who kept her husband’s books, testified that Oldenburg paid Ralph $143,095.85 for the job and, taking into account several change orders, owed him an additional $9,560.89.

With regard to the Fort Atkinson High School project, Ralph Hagemann testified that he examined the project manual and the plans in preparing his portion of the bid, but he did not recall looking at any addenda. According to Hagemann, when he brought the ceiling tile samples to Richard Johnson’s office, he brought two types of tile. Neither of them was fire-rated. Johnson approved a tile which had a fissure design.

Hagemann testified further that he pulled off the job in May 1983 because Oldenburg owed him a $35,000 draw. He had told Oldenburg he could not proceed further on the project without payment, but Oldenburg did not explain why payment was not forthcoming. Hagemann did not find out about the problem with the ceiling tile until after he had pulled off the job. According to Myrna Hagemann, Oldenburg owed Ralph $62,850.50 for his work on this project.

Myrna Hagemann also testified that Oldenburg owed her husband $1,199.50 for work on a project at Beloit College, as alleged in count II of his counterclaim. Ralph Hagemann received a directed verdict in that amount on count II of the counterclaim, and it is not at issue here. The jury found in Oldenburg’s favor on the remaining counts of the counterclaim and on count I and II of his complaint and awarded him $23,306.54 in damages. The trial court denied Hagemann’s motion for a new trial and Oldenburg’s motion for prejudgment interest. Hagemann now appeals, and Oldenburg cross-appeals.

The first contention raised by Hagemann is that the trial judge improperly became involved in the questioning of witnesses and made remarks which exhibited hostility toward him and enhanced the credibility of Oldenburg’s witnesses. Hagemann complains primarily about the following exchange between the trial judge, Hagemann’s attorney, and witness James Heidt during cross-examination:

“Q. My question was why didn’t you deduct the $19,000 when you had your March meeting; instead of just taking $7,800 off, why didn’t you take $26,000 off?

A. Because that purchase order had already been let to Bostwick from our firm and he assigned that.

THE COURT: He’s trying to tell you. They don’t want to take Oldenburg, Bostwick, they *** we want our money. That’s why you didn’t do it, right? They didn’t want any money from Oldenburg, they wanted your money, didn’t they, Bostwick?

A. Correct.

Q. Why didn’t you take $26,000 off this?

A. They didn’t know it at the time.

THE COURT: He told you three times.

MR. REESE [Hagemann’s attorney]: I guess I’m dense, Judge.

THE COURT: I’m not trying to say you and I aren’t on the same level, Mr. Reese, but I think I got it.

MR. REESE: I’m just dense. I still don’t understand.

THE COURT: They wouldn’t take Oldenburg. They wanted their money, is that right, Mr. Heidt?

A. Yes, sir.

THE COURT: So at the time they acquired this order he didn’t have that from Bostwick, you didn’t have their telling you we don’t want any money from Oldenburg, you ain’t going to assign it to anybody else, you’re going to pay it?

A. That correct.

THE COURT: Now, the jury should disregard whatever I say and listen to the lawyers.

MR. REESE: Respectfully show an objection to Your Honor summarizing.

THE COURT: Objection sustained. Jury admonished to disregard any questions or remarks the court asked.”

The trial judge, as the dominant figure in the courtroom, should exercise caution and avoid making statements which could prejudice the jury against or in favor of a party. (Heiser v. Chastain (1972), 6 Ill. App. 3d 552, 557.) Ordinarily, a trial judge should avoid extensive questioning of a witness (Goshey v. Dunlap (1973), 16 Ill. App. 3d 29, 31), although if the questioning is done in a fair and impartial manner, the judge may inquire of a witness in order to elicit the truth or to clarify obscure issues. (In re Custody of Horbatenko (1988), 176 Ill. App. 3d 970, 974.) Wide latitude should be accorded the trial judge in conducting a trial; a new trial will be granted on the basis of a judge’s remarks or conduct only if the remarks or conduct result in prejudice to a party. Vinke v. Artim Transportation System, Inc. (1980), 87 Ill. App. 3d 400, 412; Crump v. Universal Safety Equipment Co. (1979), 79 Ill. App. 3d 202, 210.

In the case at bar, the above-quoted remarks and questions by the trial judge appear to have been motivated in part by a desire to clarify Heidt’s testimony which, as we have seen, is proper. Additionally, here, as in Vinke, the trial judge felt the line of questioning was repetitive and sought to move counsel on to another line of questioning. The trial judge’s comments in Vinke were held to be proper. Vinke, 87 Ill. App. 3d at 412.

Unlike Vinke, however, in the present case, the trial judge’s conclusion that counsel’s questioning was repetitive was not correct. Hagemann’s attorney sought an explanation as to why Heidt, at the March 1982 meeting, sought an $8,000 credit on the Oldenburg-Hagemann contract and assignment of the $19,000 plus Bostwick purchase order instead of merely seeking a credit on the contract for the entire sum, approximately $27,000. The trial judge’s statements that. Bostwick wanted payment from Klobucar, not Oldenburg, but that Heidt did not know this at the time of the March 8 meeting, statements with which Heidt agreed, would explain why Klobucar paid Bostwick after assigning the purchase order and took the credit on the Oldenburg-Hagemann contract instead. The judge’s statements do not explain, however, why Heidt did not merely seek such a credit in the first instance at the March 1982 meeting. Hagemann’s attorney therefore should have been permitted to obtain such an explanation from Heidt.

In our view, however, the trial judge’s remarks and his failure to permit counsel to pursue this line of questioning did not prejudice Hagemann. Although Hagemann was foreclosed from receiving an explanation as to why Klobucar initially assigned the Bostwick purchase order instead of paying it and taking a credit on the Oldenburg-Hagemann contract, the advantage of this course is rather apparent. Taking the $27,000 credit would have required Klobucar to pay the $19,000 sum to Bostwick and wait for reimbursement in the form of credit on payment for the services of Oldenburg and Hagemann. By assigning the purchase order, Klobucar obviously intended to avoid making the $19,000 payment at all. Since this advantage was rather apparent, Hagemann suffered no prejudice by not being able to bring out this explanation. We also disagree with Hagemann’s contentions that the judge’s remarks prejudiced him because of their disparaging nature and because they somehow enhanced Heidt’s credibility. The fact that the trial judge admonished Hagemann’s attorney for allegedly seeking to elicit repetitive testimony did not cause prejudice; the judge admonished the attorneys for both parties several times. Nor was Heidt’s testimony enhanced because the trial judge briefly explained it and briefly questioned Heidt in order to clarify it.

Hagemann also complains that after Oldenburg’s counsel objected to a certain question asked of James Heidt on cross-examination, the trial judge’s vehemence in sustaining the objection caused him prejudice. No reference was made to this incident in Hagemann’s post-trial motion, however, and he has therefore waived the issue on appeal. (See Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 350.) Hagemann also alleges that the trial judge acted improperly by asking Heidt certain questions relating to the purchase of studs from Bostwick and whether those studs were a part of the OldenburgHagemann bid. Hagemann’s post-trial motion made no specific reference to this questioning, however. The motion only contained a general statement that the trial judge “injected himself into the trial *** by interrogating witnesses.” A post-trial motion must contain the- specific grounds relied upon by the movant for relief or else the issues raised therein are waived on appeal. (See Brown, 83 Ill. 2d at 350-51.) Hagemann has therefore also waived the issue of the allegedly improper questioning of Heidt by the trial judge. Furthermore, our review of the record with regard to these two incidents reveals that Hagemann would not have suffered any prejudice from them.

Although Hagemann argues in his brief that the trial court made several erroneous evidentiary rulings, he only cites authority with regard to one of those rulings, the trial judge’s conclusion that the parol evidence rule did not prohibit the admission of certain evidence. Failure to cite pertinent authority in support of an issue is a violation of Supreme Court Rule 341(e)(7) (113 Ill. 2d R. 341(e)(7)) which results in waiver of the issue on appeal. (In re Marriage of Strauss (1989), 183 Ill. App. 3d 424, 428.) Hagemann has therefore waived review of the evidentiary rulings he complains of, with the exception of the parol evidence issue.

After the March 1982 meeting between Hagemann and Oldenburg, Hagemann sent Oldenburg a document entitled “Proposal” for the Beloit Municipal Building project. This document listed the work Hagemann was to perform, including gypsum sheathing, metal lathing, and steel studs, interior and exterior. It then stated “General Contractors to supply exterior studding.” Hagemann argues on appeal that evidence he was to pay for the Bostwick studs violated the parol evidence rule because it was contrary to this contractual term.

The initial question for the applicability of the parol evidence rule is whether the writing was intended to be a final and complete expression of the parties’ agreement. (Pecora v. Szabo (1981), 94 Ill. App. 3d 57, 63.) The trial court could reasonably have concluded that the “Proposal,” which was not signed by Oldenburg, and which merely generally outlined the work to be performed by Hagemann, was not intended to be a final or complete agreement between the parties. Accordingly, it was not error to permit evidence that Hagemann was to pay for the Bostwick studs.

Hagemann’s final contention is that the trial court erred in determining that his disclosure of David Jenkins as an expert witness was untimely under Supreme Court Rule 220(b) (107 Ill. 2d R. 220(b)), and by barring Jenkins from testifying as a sanction. The rule states in relevant part as follows:

“[T]he identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party either within 90 days after the substance of that expert’s opinion first becomes known to that party or his counsel or, if the substance of the expert’s opinion is then known, at the first pretrial conference in the case, whichever is later. *** Failure to make the disclosure required by this rule or to comply with the discovery contemplated herein will result in disqualification of the expert as a witness.” (107 Ill 2d R. 220(b).)

One of the objectives of Rule 220 is to ensure that the parties are “adequately advised regarding the critical opinions which may be offered in support of their opponent’s claims or defenses.” Ill. Ann. Stat., ch. 110A, par. 220, Committee Comments, at 438 (Smith-Hurd 1985).

According to Hagemann, there was no violation of Rule 220(b) because he named Jenkins as an expert witness in his March 1986 supplemental answers to interrogatories that had been filed by third-party defendant Richard Johnson. Johnson had requested, among other things, the names of expert witnesses Hagemann intended to call at trial. A copy of Hagemann’s supplemental response was served upon Oldenburg’s attorney in 1986.

Hagemann’s supplemental response in 1986 would have only served to notify Oldenburg of Hagemann’s intention to call Jenkins as an expert witness against Johnson in the third-party action. Hagemann’s desire to call Johnson as an expert witness against Oldenburg in the initial action and counterclaim remained a surprise to Oldenburg and his attorney until it was revealed at the second pretrial hearing, 10 days before trial. This is precisely the type of surprise last-minute disclosure that Rule 220 was designed to prevent. Thus, the supplemental response to interrogatories filed in 1986 was not adequate disclosure under Rule 220(b) of Hagemann’s intent to call Jenkins as an expert witness to testify against Oldenburg.

Rule 220(b), as quoted above, requires disclosure of an expert’s identity at the later of the following times: (1) within 90 days after the substance of the expert’s opinion is first known to the party intending to call the witness or that party’s counsel; or (2) at the first pretrial hearing. Hagemann’s counsel obviously knew the substance of Jenkins’ opinions in March 1986 when the supplemental response to Johnson’s interrogatories was filed. Since Hagemann’s attorney did not advise Oldenburg’s attorney of his desire to have Jenkins testify against Oldenburg until May 1990, it is obvious Hagemann did not comply with the 90-day deadline. Hagemann therefore violated Rule 220(b) because he also failed to make the above disclosure at the initial pretrial hearing. Accordingly, under the rule, the trial judge had no alternative but to bar Jenkins from testifying. (Phelps v. O’Malley (1987), 159 Ill. App. 3d 214, 223-24.) The imposition of this sanction and the trial court’s determination that Hagemann violated Rule 220(b) were both proper.

We now turn to Oldenburg’s cross-appeal. Oldenburg argues that the trial court erred by denying his motion for prejudgment interest under a statutory provision which states that prejudgment interest at the rate of 5% per annum shall be awarded “for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing *** and on money withheld by an unreasonable and vexatious delay of payment.” (Ill. Rev. Stat. 1989, ch. 17, par. 6402.) The decision of the trial judge on whether prejudgment interest should' be awarded will not be reversed on appeal unless it is against the manifest weight of the evidence. Pietka v. Cheleo Corp. (1982), 107 Ill. App. 3d 544, 558.

Prejudgment interest will only be awarded for amounts due on an instrument of writing if the amount due was liquidated or subject to easy computation. (Stevenson v. ITT Harper, Inc. (1977), 51 Ill. App. 3d 568, 579.) An amount due under a contract is liquidated if the parties agree on the amount. (E.M. Melahn Construction Co. v. Village of Carpentersville (1981), 100 Ill. App. 3d 544, 551.) The amounts sought by Oldenburg were clearly not liquidated, nor, in our view, were they easily computed. The $10,123.03 overpayment on the Beloit Municipal Building project can only be calculated by considering the original Oldenburg-Hagemann bid, the subsequent reduction of that bid, numerous change orders and their effect upon Hagemann’s portion of the bid, and the credit of approximately $19,000 resulting from the Bostwick studs. Calculating the amount due Oldenburg as a result of the breach of the Fort Atkinson High School project requires consideration of the amount originally due Hagemann, modifications of that amount due to change orders, the amount Hagemann had been paid when he left the job, and the expenses incurred by Oldenburg in having the work completed, including payments to other subcontractors. The fact that the final calculations of the amounts allegedly due Oldenburg were provided to the jury in Oldenburg’s testimony does not mean these amounts were subject to easy computation. In light of the above considerations, the trial court could reasonably have concluded they were not subject to easy calculation.

Additionally, Oldenburg argues that prejudgment interest should have been awarded because the amounts due him were “withheld by an unreasonable and vexatious delay of payment.” (Ill. Rev. Stat. 1989, ch. 17, par. 6402.) An honest dispute concerning the existence of a legal obligation does not constitute unreasonable or vexatious delay of payment, nor does defense of a lawsuit. (Pietka v. Cheleo Corp. (1982), 107 Ill. App. 3d 544, 557.) Considering the longstanding prior relationship between Oldenburg and Hagemann, and the complex and confusing circumstances which surrounded their dispute, the trial court could reasonably have determined that Hagemann’s refusal to pay Oldenburg was not unreasonable or vexatious. The denial of interest was not against the manifest weight of the evidence.

Finally, Oldenburg contends that the trial court erred by refusing to enter judgment on counts III and IV, both of which he labels equitable counts. Counts III and IV, however, merely restate the allegations of count II that Hagemann was overpaid on the Beloit Municipal Building project. Count III does state additionally that the overpaid sum should be returned to Oldenburg, while count IV states additionally that the overpaid sum was held in trust by Hagemann for Oldenburg. We do not perceive any prejudice to Oldenburg from the fact that judgment was entered in his favor on only one of these three redundant counts.

Oldenburg argues that count IV alleges the existence of a constructive trust and states that any increase in the trust res due to interest would belong to him. (See People ex rel. Daley v. Warren Motors, Inc. (1985), 136 Ill. App. 3d 505, 513.) Oldenburg then acknowledges that he presented no evidence that Hagemann earned any interest on the overpaid funds but states, under these circumstances, he should receive the 5% statutory prejudgment interest amount from the date he first demanded payment. This argument is waived under Supreme Court Rule 341(e)(7) (113 Ill. 2d R. 341(e)(7)) for failure to cite supporting authority, and it is without merit, as we have already determined Oldenburg is not entitled to prejudgment interest under the relevant statute (see Ill. Rev. Stat. 1989, ch. 17, par. 6402).

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

Affirmed.

UNYERZAGT and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GEIGER

license: Public Domain

text:
      In re MARRIAGE OF JAMES J. HANNON, Petitioner-Appellee and MARY LOU HANNON, Respondent-Appellant (The City of Aurora Firefighters’ Pension Fund, Intervenor-Appellee).
    Second District
    No. 2—90—0268
    Opinion filed January 8, 1991.

      Bruce A. Brown and Lisa E Rauch, both of Goldsmith, Thelin, Schiller & Dickson, of Aurora (Bruce Goldsmith, of counsel), for appellant.
    Atwell & Atwell, of Aurora, (Charles H. Atwell, Jr., of counsel), for appellee James J. Hannon.
   JUSTICE GEIGER

delivered the opinion of the court:

The respondent wife, Mary Lou Hannon, appeals from the court’s modified order dissolving her marriage with the petitioner husband, James J. Hannon. She challenges the order’s provision which precludes her receipt of survivor benefits from the intervenor-appellee City of Aurora Firefighters’ Pension Fund (the Fund).

The parties were married in 1956 and lived together until 1985. During the process of dissolving their marriage, they reached a negotiated settlement. On February 8, 1989, the court filed its original dissolution judgment including the parties’ agreed “Qualified Domestic Relations Order” (QDRO). The QDRO was based upon section 414(p) of the Internal Revenue Code (Revenue Code) (26 U.S.C. §414(p) (1988)). Under the agreed QDRO the wife received 50% of the husband’s pension benefits, payable directly from the Fund. Also, the QDRO provided that the wife “shall be treated as a surviving spouse with respect to [her] portion of the plan benefits.” When the order was filed, the husband was already retired from employment as a fire fighter and receiving a retirement pension from the Fund.

After the initial dissolution order was filed, and pursuant to the wife’s motion to modify, the court granted the Fund leave to intervene and scheduled briefing and a hearing. The intervenor Fund argued that the parties could not effectively designate the wife as “surviving spouse.”

After the hearing, the court found that under the Firefighters’ Pension Fund provisions of the Illinois Pension Code (the Pension Code or the Code) (Ill. Rev. Stat. 1989, ch. 108x/2, par. 4 — 101 et seq.), the parties could not designate the wife to receive survivor benefits following the dissolution. The court also rejected the wife’s argument that section 414(p) of the Revenue Code mandated the possibility of that kind of designation because its provision allowing a QDRO to designate a former spouse as “surviving spouse” preempted contrary provisions of the Code. Under section 414(p), a QDRO may order that a former spouse shall receive surviving spouse benefits; the former spouse may, thus, deprive a current spouse of those benefits.

Based on its findings, the court entered a new judgment with a modified QDRO. Under that new order, the wife received sole interest in 50% of the husband’s total pension entitlement, so long as he receives fund benefits; the order provided that she would be paid directly from the Fund. The order further provided, basically, that the husband’s survivor benefits were not marital property and that, in the event the husband predeceased the wife, they would be awarded not to the parties, but to the persons entitled to them under the Pension Code.

The wife brought this appeal. She argues generally that she should be entitled to survivor benefits from the Fund. Specifically, she argues that survivor benefits provided under the Code are marital property under the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act or the Act) (Ill. Rev. Stat. 1989, ch. 40, par. 503) and are distributable to her in a manner similar to retirement benefits. She also argues that the Pension Code itself should be read to include a former spouse as a “surviving spouse” to receive survivor benefits (Ill. Rev. Stat. 1989, ch. 1081/2, par. 4 — 114). Alternatively, the wife argues that section 414(p) of the Revenue Code, with its provision for a former spouse to be designated as “surviving spouse” and, thus, survivor benefit recipient, preempts the Pension Code’s definition of “surviving spouse.” We find that the trial court’s careful analysis was correct, and we affirm.

We first consider the wife’s arguments relying upon the language of the Pension Code and the Marriage Act. In those arguments, the wife emphasizes that the husband’s pension was earned during the parties’ long-term marriage. Also, she emphasizes the general rule that pension rights accumulated during a marriage are marital property and subject to equitable division upon dissolution. (See In re Hackett (1986), 113 Ill. 2d 286.) The Fund properly acknowledges those factors.

In the portion of her argument focusing on the Marriage Act, the wife argues that the fire fighter surviving spouse benefits (Ill. Rev. Stat. 1989, ch. IO81/2, par. 4 — 114(a)) should be subject to equitable distribution because they are included within the Act’s section 503 definition of marital property (Ill. Rev. Stat. 1989, ch. 40, par. 503). She notes that section 503 of the Act defines “marital property” as “all property acquired by either spouse subsequent to the marriage, except” for a limited list of property categories which do not include pension benefits (Ill. Rev. Stat 1989, ch. 40, par. 503(a)).

The wife goes on to focus on the Pension Code. She asserts that section 4 — 114 of the Code includes a former spouse as a “surviving spouse.” To reach that conclusion the wife examines references to “surviving spouses” made by portions of the Pension Code covering groups other than fire fighters. (Ill. Rev. Stat. 1989, ch. 1081/2, pars. 2 — 121(b), 3-120, 7-154, 11-147(f), 12-123.1, 15-127, 17-121, 18 — 128(b).) She also notes that the fire fighter pension provisions do not define “surviving spouse” and that pension statutes must be construed to favor the rights of pension beneficiaries. See Johnson v. Retirement Board of the Policemen’s Annuity & Benefit Fund (1986), 114 Ill. 2d 518, 521.

Initially, we reject the wife’s argument that we should find from reading the Pension Code as a whole that the legislature intended that the term “surviving spouse” in Code section 4 — 114(a) would include former spouses. As the the Fund correctly notes, an unambiguous statute shall be construed consistent with the ordinary and popularly understood meanings of its words. (See People v. Dednam (1973), 55 Ill. 2d 565, 568.) Given that fact, and the absence of any contrary suggestion in the legislative language, we find inescapably clear that section 4 — 114(a)’s reference to a “surviving spouse” includes only a person who is married to a pensioner and alive at the time of the pensioner’s death. (See In re Estate of Morrissey (1976), 38 Ill. App. 3d 981, 983.) A former spouse, having had his marital relationship severed by dissolution, is not included in that designation. 38 Ill. App. 3d at 983.

In reaching our decision we specifically reject the wife’s reliance on other pension provisions that mention surviving spouses. It is proper to compare separate statutes addressing the same subject to ascertain legislative intent. (Illinois-Indiana Cable Television Association v. Illinois Commerce Comm’n (1973), 55 Ill. 2d 205, 220.) However, the language used in a statute is the primary source for determining the legislature’s intent, and, where that language is certain and unambiguous, the courts’ role is to enforce the statute as enacted. (People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 369.) With reference to the fire fighters’ pension code’s clear and unambiguous use of the term “surviving spouse,” we find no reason to resort to dissection of the language used in separate pension provisions.

Similarly, we agree with the wife that there is no need to divine the legislative intent through analysis of fire fighter pension code section 4 — 114(g). Subsection 4 — 114(g) provides that “[i]f a judgment of dissolution of marriage between a firefighter and spouse is judicially set aside subsequent to the firefighter’s death, the surviving spouse is eligible for [a surviving spouse’s] pension *** only if the judicial proceedings are filed within 2 years after the date of the dissolution *** and within one year after the firefighter’s death and the board is made a party to the proceedings.” Ill. Rev. Stat. 1989, ch. 1081/2, par. 4 — 114(g).

According to the wife, section 4 — 114(g) should not be construed to otherwise exclude former spouses from survivor benefits. Although we do not adopt the wife’s precise analysis, we agree with her that reliance on section 4 — 114(g) is inappropriate here. Because, as we have found, the fire fighter pension provisions are clear on the category of persons entitled to “surviving spouse” benefits, we find no reason to rely upon section 4 — 114(g) to determine the legislature’s intended meaning for the term “surviving spouse.”

Given the clear meaning of the Pension Code term “surviving spouse,” it is of secondary importance that “marital property,” as defined in section 503 of the Marriage Act, has been held to include pension benefits, even those contingent upon future events and those which are not vested (see In re Marriage of Papeck (1981), 95 Ill. App. 3d 624; In re Marriage of Bodford (1981), 94 Ill. App. 3d 91, 92). As the Fund correctly notes, because pension rights originate not in the Marriage Act but in the Pension Code, analysis of their division upon dissolution must begin with the Pension Code. That fact emerges from the way other courts examining pension rights in dissolution proceedings have begun with analysis of pension provisions. See Papeck, 95 Ill. App. 3d at 629; see also In re Hackett (1986), 113 Ill. 2d 286, 292-93.

Unlike retirement pension rights, which the courts clearly recognize as distributable marital property (see Hackett, 113 Ill. 2d 286), survivor pension rights are not generally defined as the property of the covered employee (see, e.g., Ill. Rev. Stat. 1989, ch. 1081/2, par. 4 — 109). Rather, they are generally defined under the Code as the property of the survivors of a deceased former employee (see, e.g., Ill. Rev. Stat. 1989, ch. 1081/2, par. 4 — 114). Thus, they arise only upon the death of a pensioner, and, in the case of “surviving spouse” rights, they accrue to the spouse at the time of the employee’s death.

In that regard, we briefly address Pension Code section 4 — 115. Section 4 — 115 provides that if a fire fighter marries subsequent to his retirement, his surviving spouse is entitled to survivor benefits if the couple was married at least 12 months before the employee’s death. According to the wife, if after this dissolution the husband was remarried for at least 12 months so that his subsequent spouse met the requirement of section 4 — 115, then predeceased his subsequent spouse, the subsequent spouse would be entitled to only 50% of the surviving spouse benefits. The initial 50% would be this former wife’s entitlement.

As the wife observes, by her interpretation the Fund is exposed to no additional survivor pension expenses, that is except, we note, for possible litigation expenses to resolve parties’ respective entitlements. Nevertheless, the wife’s construction has no statutory support. The fire fighter pension provisions clearly designate an employee’s “surviving spouse,” that is, the person married to him at the time of his death, to receive “surviving spouse” benefits. (See Ill. Rev. Stat. 1989, ch. IO81/2, pars. 4 — 114, 4 — 115.) That designation is clear and unqualified. The wife’s interpretation, whereby an otherwise qualified “surviving spouse” could be deprived by a former spouse of his full statutory entitlement to survivor benefits, is clearly inconsistent with the Pension Code’s language.

As we have already observed, by using the unambiguous term “surviving spouse,” the Illinois Firefighters’ Pension Code provides for full survivor benefits for a “surviving spouse” and does not include a former spouse as “surviving spouse” for those benefits. (See In re Estate of Biewald (1984), 127 Ill. App. 3d 269, 272.) There is no basis to limit the statute’s unambiguous, unqualified award of a “surviving spouse” share of survivor benefits to the spouse of the employee at the time of the employee’s death.

In conclusion, we note that it is clear that an employee has a benefit from the anticipation of pension payments to his survivors, similar to his benefit from the expectation of retirement benefits. In that sense and because survivor benefits may be “earned” during a marriage which later is dissolved, survivor benefits are like the pension rights that courts divide as marital property. However, unlike other pension rights, survivor benefits have no possibility of becoming available for the employee's direct enjoyment. Rather, they are statutorily designated for survivors and not for the control of the employee. We determine that they are not subject to division as marital property.

The wife alternatively argues that if section 4 — 114 does not include her, as a former spouse, within the category “surviving spouse,” then under the supremacy clause of the United States Constitution (U.S. Const., art. VI), section 414(p) of the Revenue Code preempts the “surviving spouse” limitation of section 4 — 114 of the Pension Code. She relies on the fact that the Revenue Code provides that to the extent provided by a QDRO, “the former spouse of [a pension plan] participant shall be treated as a surviving spouse of such participant” for purposes of survivor benefit distribution (26 U.S.C. §414(p)(5) (1988)).

We find no merit to the wife’s preemption argument. As the Fund observes, unless a Federal act manifests an intent to preempt State law, we should not presume that preemption was intended. (See Praznik v. Sport Aero, Ine. (1976), 42 Ill. App. 3d 330, 340.) This record does not support preemption.

The Internal Revenue Code provisions upon which the wife relies are a portion of the Congress’ requirements for “qualified” pension, profit, or stock bonus plans. A “qualified” plan is entitled to particular Federal income tax treatment. (26 U.S.C. §401 et seq. (1989).) Even if for the sake of argument we presume that the fire fighter pension provisions are covered by section 414(p) of the Revenue Code, we find no expression of congressional intent that the pension plan for fire fighters must be designated as a “qualified” plan and, thus, must comply with requirements for a plan to be “qualified.”

The pension code for fire fighters may exclude, as it has excluded, a “former spouse” from its definition of “surviving spouse.” Federal tax consequences might result from that exclusion. However, we find no obstacle to Congress’ purposes resulting from any conflict between the Illinois legislature’s definition and the Revenue Code. (See Kellerman v. MCI Telecommunications Corp. (1986), 112 Ill. 2d 428, 438-39.) Consequently, this is no case for State law preemption. Correspondingly, Congressional debate on the meaning of section 414(p) of the Revenue Code, to which the wife refers, has no bearing on a proper interpretation of the Illinois pension provisions for fire fighters.

Based on the foregoing, we affirm the judgment of the circuit court of Kane county.

Affirmed.

REINHARD, P.J., and McLAREN, J., concur.


text:
    SHARON YOUNG, Plaintiff-Appellee and Cross-Appellant, v. FIKRY MAKAR, Defendant-Appellant and Cross-Appellee.
    Second District
    No. 2—90—0337
    Opinion filed January 14, 1991.

      Robert R. McWilliams, of Kostantacos, Traum, Reuterfors & McWilliams, P.C., of Rockford (Lawrence R. Kream, of counsel), for appellant.
    Peter S. Switzer and Robert C. Pottinger, both of Barrick, Switzer, Long, Balsley & Van Evera, of Rockford (Thomas G. Ruud, of counsel), for appellee.
    Shaun McFarland Baldwin, of Tressler, Soderstrom, Maloney & Priess, of Wheaton, for amicus curiae Illinois Association of Defense Trial Counsel.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant’s attorney, Robert McWilliams, appeals from a trial court’s order holding him in contempt for informing the court he would not comply with its pretrial order prohibiting a private interview between him and the plaintiff’s treating physicians. At issue in this case is whether the prohibition against ex parte contact continues even after the physicians have been deposed and whether a defense attorney can be held in contempt for refusing to comply with that prohibition. We affirm the trial court’s order holding defense attorney McWilliams in contempt and prohibiting him from conducting a private interview with the plaintiff’s treating physicians.

Plaintiff, Sharon Young, brought suit against the defendant, Fikry Makar, M.D., to recover damages for injuries sustained when Dr. Makar performed a hysterectomy upon her. During pretrial discovery, depositions were taken from two of the plaintiff’s subsequent treating physicians, Drs. Dennis Corcoran and William Gorski. After the doctors were deposed, defendant’s attorney, Robert McWilliams, moved for leave to conduct a private interview with these physicians to review their testimony and prepare them for testifying at trial or, in the alternative, to bar plaintiff’s attorney from interviewing these physicians prior to trial.

The trial court denied the motion. Defendant’s attorney then informed the court that he would not comply with the court’s order. The court found him in contempt and imposed a fine of $100. In addition, the court ruled that defendant would be barred from introducing the testimony of these physicians at trial if he in fact interviewed them, but that the fine would be remitted to McWilliams if he did not interview them. Defendant timely appeals. The Illinois Association of Defense Trial Counsel has submitted a brief as amicus curiae, pursuant to Supreme Court Rule 345 (107 Ill. 2d R. 345).

Plaintiff filed a section 2 — 611 motion for sanctions on the basis that the defendant’s motion to conduct an ex parte interview with the plaintiff’s treating physicians was not in good faith or supported by existing law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.) The trial court denied this motion. Plaintiff filed a cross-appeal.

Before addressing the issue of whether Illinois law prohibits ex parte communication between the defense and the plaintiff’s treating physicians after the physicians have been deposed and for the purpose of preparing them for trial, we must address a preliminary jurisdictional issue raised by the plaintiff. Plaintiff contends on appeal that this court does not have jurisdiction to consider the validity or correctness of the pretrial order itself but only the correctness of the order of contempt entered against defendant’s counsel for his “inappropriate conduct” in court. The plaintiff argues that the pretrial order was never actually violated by McWilliams; therefore, no actual controversy concerning the order exists. The plaintiff contends that under these circumstances the issue of the correctness of the pretrial order is interlocutory until and unless it is actually violated. We disagree.

A contempt order is collateral to and independent of the case in which it arises. As such, a contempt order is final and appealable despite appearing to be interlocutory. (People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 172.) In contrast, a pretrial discovery order is an interlocutory order. In People ex rel. Scott v. Silver-stein, our supreme court stated:

“Where an unappealable interlocutory order results in a judgment of contempt including fine or imprisonment, such a judgment is a final and appealable judgment and presents to the court for review the propriety of the order of the court claimed to have been violated.” (Silverstein, 87 Ill. 2d at 174.)

Once defense attorney McWilliams refused to obey the order and a final contempt order imposing sanctions was entered against him, the contempt order became final and appealable, as well as that part of the underlying pretrial discovery order upon which it was based.

Plaintiff argues that McWilliams’ statement that he would not comply with the court’s order did not create an actual controversy because McWilliams never intended to actually violate the order, only to manufacture an appeal by stating that he would violate the order. However, our supreme court has stated that exposing one’s self to contempt proceedings has long been recognized as an appropriate method of testing the validity of a court order. (People v. Skukovsky (1988), 128 Ill. 2d 210, 219.) In fact, this method was also used to test the appropriateness of the trial court’s order in Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, appeal denied (1987), 113 Ill. 2d 584. Accordingly, the issue concerning the validity of that part of the pretrial discovery order barring ex parte contact between the defense and the plaintiff’s treating physicians outside of formal discovery is properly before this court. We now turn to that issue.

The defendant contends that the trial court erred in prohibiting defense counsel from conducting ex parte interviews with plaintiff’s treating physicians after the physicians had been deposed. Specifically, the defendant argues that the trial court erred in extending the Petrillo doctrine to cover the circumstances surrounding this case.

In its amicus brief, the Illinois Association of Defense Trial Counsel requests that this court overrule Petrillo and its progeny. Plaintiff argues that this argument is waived because it was not raised in the trial court. In any event, we are not inclined to reconsider Petrillo or any of the subsequent cases following the Petrillo doctrine.

Petrillo was the first Illinois case dealing squarely with the issue of whether an interview between defense counsel and a plaintiff’s treating physician, without the plaintiff’s knowledge, violates the physician-patient privilege. The court held that such ex parte conferences are prohibited because modern public policy strongly favors the confidential and fiduciary relationship existing between a patient and his or her physician. Petrillo, 148 Ill. App. 3d at 587.

The court explained that society possesses an established and beneficial interest in the sanctity of the physician-patient relationship, which is reflected in both the medical profession’s own code of ethics and the fiduciary relationship existing between a patient and his or her physician, long recognized by both Illinois and United States courts. (148 Ill. App. 3d at 588.) Because of the threat posed to the sanctity of this relationship, the court held that extrajudicial, ex parte discussions of a patient’s medical confidences are prohibited. 148 Ill. App. 3d at 588.

The court did recognize that the patient does implicitly consent to a physician’s releasing medical information related to the condition he or she has placed in issue when that patient files a lawsuit, but that this consent is necessarily limited to the release of relevant information pursuant to court-authorized discovery. (148 Ill. App. 3d at 591.) The court concluded that discussions between defense counsel and the plaintiff’s treating physicians should be made pursuant to court-authorized rules of discovery only. 148 Ill. App. 3d at 610.

This court adopted the Petrillo holding in Karsten v. McCray (1987), 157 Ill. App. 3d 1. In keeping with the goals sought by the Petrillo court, we held that ex parte interviews with the plaintiff’s treating physicians are prohibited and that barring the testimony of a plaintiff’s treating physician is an appropriate sanction to protect the patient’s confidences and to preclude such interviews from taking place. (157 Ill. App. 3d at 14.) We expressed the same concerns raised in Petrillo. The risk of potential harm to the physician-patient relationship exists in an ex parte situation because the physician may disclose patient confidences which are irrelevant and unrelated to the condition placed at issue in the lawsuit. (157 Ill. App. 3d at 14.) We concluded that the use of formal discovery puts a plaintiff in a position to protect his or her physician-patient relationship by objecting to irrelevant inquiries before the privilege is compromised. 157 Ill. App. 3d at 14.

Defendant contends that the policy considerations supporting the ban on ex parte interviews with treating physicians do not apply once the information conveyed by the patient to the physician has been properly revealed through discovery. We do not agree. The risk of potential harm to the physician-patient relationship created by ex parte contact between defense counsel and plaintiff’s treating physicians, present in both Petrillo and Karsten, survives even after formal discovery. As such, ex parte communications between defense counsel and plaintiff’s treating physicians are prohibited both before formal discovery and after.

Defendant argues that, after formal discovery, the information disclosed is no longer confidential and therefore no reason exists to prohibit ex parte interviews after discovery has taken place. This argument assumes there is nothing left of the privilege to protect after discovery has occurred. This is simply untrue.

When the plaintiff filed her lawsuit, she implicitly consented to her physician releasing any medical information related to the condition she placed at issue in the lawsuit. (Petrillo, 148 Ill. App. 3d at 591.) However, the law in Illinois is clear. This consent is limited to only the release of medical information relevant to the lawsuit, pursuant to the methods of discovery authorized by Supreme Court Rule 201(a) (107 Ill. 2d R. 201(a)). The Petrillo court was clear when it stated:

“A patient certainly does not, by simply filing suit, consent to his physician discussing that patient’s medical confidences with third parties outside court-authorized discovery methods, nor does he consent to his physician discussing patient’s confidences in an ex parte conference with the patient’s legal adversary.” (Emphasis added.) (Petrillo, 148 Ill. App. 3d at 591.)

The fact that plaintiff consents to the release of relevant information through court-authorized discovery methods does not extinguish what remains of the physician-patient privilege as defendant would have us believe.

Defendant argues that our decision in Karsten v. McCray (157 Ill. App. 3d 1) limits the Petrillo doctrine by permitting ex parte contacts with treating physicians where no confidential information is revealed. To the contrary, our decision in Karsten emphasized the need to rely on formal discovery to insure the physician-patient privilege is protected before it is compromised. We stated:

“Discussion of the patient’s confidences under circumstances other than through formal discovery is potentially harmful to the interests of the patient in that the physician might disclose intimate facts regarding the patient which are unrelated and irrelevant to the mental or physical condition placed at issue in the lawsuit. [Citation.] A plaintiff should be allowed to protect his physician-patient privilege before it is compromised. Requiring utilization of formal discovery procedures places the plaintiff in a position to object to irrelevant inquiries. Court supervision would protect the interests of both parties.” (Emphasis in original.) (157 Ill. App. 3d at 14.)

Nothing from our opinion in Karsten should be construed as limiting the Petrillo doctrine.

It is true that the information disclosed through discovery is no longer confidential and that the physician-patient privilege is waived to that extent, but the threat to what remains of the confidential and fiduciary relationship between the patient and her physician is still present. It would be quite difficult for the defense to discern to what extent the privilege is waived and to stick strictly to those areas without creating a risk to what remains of the privilege. Permitting ex parte interviews between defense counsel and the treating physicians would subject the physicians to improper pressures to disclose information without the presence of the plaintiff to insure protection of the privilege.

Defendant argues that society’s interest in ascertaining the truth outweighs society’s interest in protecting the physician-patient privilege. We disagree. This same argument was addressed in Petrillo. Again, the law is clear. The Petrillo court emphasized the strong public policy favoring protection of the “sanctity of the physician-patient relationship.” (Petrillo, 148 Ill. App. 3d at 588.) Contrary to what the defendant argues, the ban on ex parte conferences does not impair society’s interest in ascertaining the truth because it does not prevent the truth from being discovered. “[I]t merely regulates the discovery process so as to protect the confidential relationship existing between a patient and his treating physician.” Petrillo, 148 Ill. App. 3d at 606.

Defendant argues that, by denying the defendant access to the plaintiff’s treating physician in order to prepare his testimony, the rule impedes the truth from being discovered at trial. The defendant claims that without the opportunity to go over the physician’s testimony before trial, the presentation of the physician’s testimony would be adversely impacted which, in turn, increases the chances that the truth will not be ascertained at trial. We believe the defendant greatly overstates the risk that the truth will not be ascertained. The physician is required to testify truthfully at trial, and the defense is entitled to cross-examination. With these safeguards intact, the risk that the truth will not be ascertained is very small and does not outweigh society’s interest in protecting the sanctity of the physician-patient relationship.

In sum, we reaffirm the holdings in Petrillo and Karsten. Ex parte communications between defense counsel and the plaintiff’s treating physicians pose an impermissible threat to the sanctity of the physician-patient relationship. That threat survives even after formal discovery has taken place. As such, to avoid undermining this relationship, such ex parte communications are prohibited.

Accordingly, for the reasons set forth above, we rule that discussions between defense counsel and a plaintiff’s treating physician should be pursuant to the rules of. discovery only. The decision of the circuit court of Winnebago County is affirmed.

We now turn to the plaintiff’s cross-appeal. This court only has jurisdiction to review final orders unless the order falls within one of the exceptions for interlocutory orders set forth in the supreme court rules, none of which applies here. (Renzulli v. Zoning Board of Appeals (1988), 176 Ill. App. 3d 661, 662.) Pursuant to section 2 — 611 of the Code, plaintiff’s cross-appeal must be dismissed. Section 2 — 611 states in part as follows:

“All proceedings under this Section shall be within, and part of the civil action in which the pleading, motion or other paper referred to herein has been filed, and no violation or alleged violation of this Section shall give rise to a separate cause of action, or another cause of action within the civil action in question, by, on behalf of or against any party to the civil action in question, and by, on behalf of or against any attorney or insurance company involved in the civil action in question.” Ill. Rev. Stat. 1987, ch. 110, par. 2-611.

Clearly, section 2 — 611 claims must be considered a part of the civil action which gave rise to the claim, not a separate action. (In re Marriage of Strauss (1989), 183 Ill. App. 3d 424, 430.) Plaintiff’s claim for sanctions against McWilliams arises from the civil action for malpractice which has not yet been resolved. Until that action is resolved, we cannot consider whether the trial court’s order dismissing plaintiff’s motion for section 2 — 611 sanctions was proper. Accordingly, the plaintiff’s cross-appeal is dismissed.

Affirmed in part; dismissed in part.

UNVERZAGT and WOODWARD, JJ., concur.


author: JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KRYSTYNA J. TELLER, Defendant-Appellant.
    Second District
    No. 2—89—1337
    Opinion filed January 16, 1991.

      Jerome S. Feder, of Geneva, for appellant.
    James E. Ryan State’s Attorney, of Wheaton (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Krystyna Teller, appeals from an order of the circuit court denying her petition to rescind the summary suspension of her driver’s license. Defendant raises four issues on appeal: (1) whether the process of the subpoena duces tecum is available to a defendant in a misdemeanor case; (2) whether defendant’s right to the process of the subpoena duces tecum is limited by her right to discovery pursuant to People v. Schmidt (1974), 56 Ill. 2d 572, 575; (3) whether a defendant may compel the production of documents at a summary suspension rescission hearing (rescission hearing) via the subpoena duces tecum procedure; and (4) whether the trial court erred in granting the State’s motion to quash defendant’s subpoena duces tecum. We will briefly summarize only those facts necessary to the resolution of the issues presented in this appeal.

Defendant was arrested for driving under the influence of alcohol (DUI) and driving with a blood-alcohol concentration of .10 or more (Ill. Rev. Stat. 1989, ch. 951/2, pars. 11 — 501(a)(1), (a)(2)). Defendant submitted to a breathalyzer test which yielded a result of a blood-alcohol concentration of .22. Defendant subsequently received notice that her driving privileges had been suspended.

On October 9, 1989, defendant issued a subpoena duces tecum to the Addison police department requesting the following documents: (1) the arrest report; (2) the case report; (3) the alcohol influence report form; (4) a list of witnesses; (5) any written or recorded statement by defendant; (6) evidence that would be favorable to defendant; (7) all orders and directives of the police department regarding coordination and chemical tests in DUI cases; (8) the make and model number of the breathalyzer machine (machine) used to test defendant’s blood-alcohol level; (9) a copy of the operation manual of the machine; (10) all maintenance and repair logs for the machine; (11) the breath sample analysis log and certification log; (12) a copy of the certificate issued to the police officer who operated the machine; (13) a copy of the page in the log book containing the entry of the result of defendant’s test and the last certification of the machine; (14) all information regarding repairs made to the machine; (15) the name and star number of the female officer who drove defendant home following defendant’s release from custody; and (16) the name and star number of the officer who accompanied the arresting officer at the time of defendant’s arrest. The return date on the subpoena was October 18, 1989.

On October 18, 1989, the State filed in court a motion to quash the subpoena. A hearing on the State’s motion was held at that time. The court initially granted the motion to quash; however, defendant moved the court to reserve its ruling to afford defendant the opportunity to brief the issue for the court. Defendant’s request was granted, and the matter was set over to November 7, 1989.

On October 20, 1989, defendant filed a petition for a hearing to rescind the summary suspension. It is unclear whether this petition was intended to be retroactive because the petition states, “I understand that the State will be ready for the hearing on the arraignment date which is 10/19/89.”

On November 7, 1989, defendant filed a motion to vacate the order quashing the subpoena. On that date, the hearing on the motion was held. Defendant argued that the materials in the subpoena were necessary for her preparation for the rescission hearing because it was her contention that the police officer did not have probable cause to believe that defendant was under the influence of alcohol and her blood-alcohol content reading was .22. Defendant also argued that Schmidt discovery (see People v. Schmidt (1974), 56 Ill. 2d 572, 575) cannot be equated with the right of subpoena, nor is the subpoena process a discovery procedure. According to defendant, the power of subpoena applies in all criminal cases. Finally, defendant maintained that the subpoena was not “a general fishing expedition.” The State disagreed, arguing that the order to quash was proper because the subpoena was nothing more than a “fishing expedition,” and the State intended to comply with Schmidt discovery.

The court denied the motion to vacate the order quashing the subpoena. The court found that a rescission hearing is not equivalent to a preliminary hearing and thus the case law regarding preliminary hearings is inapplicable to a rescission hearing. The court explained that it found the subpoena to be a “general fishing expedition” and that requiring the police department to produce all of the documents requested would nullify the effect of Schmidt.

On November 21, 1989, the court denied defendant’s petition to rescind the summary suspension. Defendant’s timely appeal followed.

Defendant first contends that the process of subpoena duces tecum is available to defendants in misdemeanor cases. We need not address this issue, however, because a summary suspension rescission hearing is civil in nature (People v. Moore (1990), 138 Ill. 2d 162, 167) and is not part of the criminal process (Koss v. Slater (1987), 116 Ill. 2d 389, 395). The rescission hearing is an administrative device designed to remove impaired drivers from the road promptly; it is not a punishment imposed by the court. (Koss, 116 Ill. 2d at 395.) As such, the rules of criminal procedure do not apply. Moore, 138 Ill. 2d at 169.

Defendant next contends that a defendant’s right to the subpoena duces tecum process is not limited by her right to discovery as enunciated in People v. Schmidt (1974), 56 Ill. 2d 572, 575. In Schmidt, the supreme court was faced with determining the extent of discovery permissible in misdemeanor cases. The court held that in such cases discovery is limited to: (1) a list of witnesses, (2) any confessions of defendant, and (3) evidence negating defendant’s guilt. Schmidt, 56 Ill. 2d at 575.

Subsequently, the appellate court in People v. Finley (1974), 21 Ill. App. 3d 335, relied on the holding in Schmidt to determine the discovery permissible in an implied-consent hearing. Citing language in the statute which read, “[s]uch hearing shall proceed in the Court in the same manner as other civil proceedings” (Ill. Rev. Stat. 1973, ch. 951/2, par. 11 — 501.1(d)), the court stated that the rules of civil procedure govern matters of evidence and burden of proof in an implied-consent hearing. (Finley, 21 Ill. App. 3d at 341.) Nonetheless, after analyzing Schmidt, the Finley court relied on Schmidt to hold that pretrial civil discovery should be available without making application to the court in matters concerning an implied-consent hearing to the extent that such matters involve: (1) a list of witnesses, (2) any confessions by defendant, and (3) evidence negating defendant’s guilt. (Finley, 21 Ill. App. 3d at 342.) However, the court went on to hold that the allowance of any further discovery is within the discretion of the trial court. Finley, 21 Ill. App. 3d at 342-43.

We find Finley to be persuasive in the case at bar. Like the statute governing an implied-consent hearing, section 2 — 118.1 of the

Illinois Vehicle Code specifically states that rescission hearings “shall proceed in the court in the same manner as in other civil proceedings.” (Ill. Rev. Stat. 1989, ch. 951/2, par. 2 — 118.1(b).) Therefore, Schmidt does not limit the discovery to which a defendant is entitled in a rescission hearing because such a hearing is civil in nature (Koss, 116 Ill. 2d at 395) and Schmidt involved the discovery permissible in a misdemeanor case. However, according to Finley, the limited discovery provided in Schmidt should be allowed upon demand in such a hearing, and the allowance of any further discovery is within the discretion of the trial court.

Defendant next contends that the subpoena duces tecum procedure is available at a rescission hearing. As the above discussion indicates, the allowance of such a procedure is within the discretion of the trial court.

Finally, defendant contends that the trial court erred in quashing the subpoena duces tecum. The trial court quashed the subpoena on the ground that it would be inappropriate under Schmidt. When considering legal questions, we are not bound by the trial court’s reasoning but may affirm the judgment on any basis supported by the record. Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387.

There are two types of subpoenas duces tecum: that used as part of the discovery process and that used to compel at trial the production of documents to be introduced into evidence. (See Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 325-26.) Section 2— 1101 of the Code of Civil Procedure provides that a court may quash a subpoena requesting the production of documents at trial “[flor good cause shown.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1101.) Under Supreme Court Rule 201(c), the trial court may deny a discovery request “to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression.” (134 Ill. 2d R. 201(c)(1).) As defense counsel’s comments during the hearings indicate, this was a discovery subpoena duces tecum since defense counsel sought the documents in advance of the rescission hearing date so that defendant could prepare a defense.

The list of materials defendant sought in her subpoena was lengthy. However, the record indicates that the State agreed to comply with Schmidt discovery, and, according to defendant’s brief, only five items fell outside the scope of Schmidt. Specifically, defendant argues that unavailable under Schmidt are: (1) the arrest report; (2) the case report; (3) all orders and directives of the police department regarding coordination and chemical tests in DUI cases; (4) all maintenance and repair logs for the machine used to test defendant’s breath; and (5) all information regarding repairs made to that machine. At the November 7 hearing, defense counsel acknowledged having received the arrest report and the case report. Thus, the need to obtain that material by subpoena is consequently moot, and the last three materials on the list are apparently the only materials defendant asserts to be subject to the subpoena process.

It is well settled that a court should deny a discovery request not only when the material requested is irrelevant or immaterial but also when the request is oppressive. (Leeson v. State Farm Mutual Automobile Insurance Co. (1989), 190 Ill. App. 3d 359, 366-68.) In the present case, the trial court ruled that the subpoena was nothing more than “a general fishing expedition.”

It is clear that the legislature intended the summary suspension and rescission hearing process to be swift and of limited scope. (Moore, 138 Ill. 2d at 169.) The only issues which a driver may raise at such hearings are: “(1) whether the person was placed under arrest; (2) whether the arresting officer had probable cause to believe that the person was driving while under the influence; (3) whether the person refused to take a chemical test; and (4) whether the person failed a test to which that person submitted.” (Moore, 138 Ill. 2d at 167.) The arresting officer need not even appear, as the written report of the officer will suffice. (Moore, 138 Ill. 2d at 167.) The trial court found that the discovery request in the present case was too broad for a rescission hearing, and, in light of the limited questions at issue, we cannot say this conclusion was erroneous. Thus, the trial court did not abuse its discretion in quashing the subpoena duces tecum.

The judgment of the circuit court is affirmed.

Affirmed.

WOODWARD and NICKELS, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID J. GORDON, Defendant-Appellant.
    Second District
    No. 2—89—0181
    Opinion filed March 6, 1991.
    G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, David Gordon, was charged by separate informations filed on December 13, 1988, and February 20, 1986, with one count of criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 13(a)(3)), and two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(b)(1)). Defendant, an enlisted man assigned to the United States Army (Army) facility at Fort Sheridan, Illinois, was released from the county jail on a $100,000 recognizance bond. One of the conditions of the bond was that “defendant shall follow orders issued by the Army.” On November 10, 1988, defendant entered a plea of guilty to the charge of criminal sexual assault, a Class 1 felony, and the remaining charges were subsequently nol-prossed.

On February 1, 1989, the trial court sentenced defendant to a 48-month period of probation conditioned on psychological counseling and substance abuse treatment, 100 hours of public service, 120 days of incarceration in the county jail to be served at the rate of 30 days per year for four years, and court costs. After the court pronounced the sentence, defendant raised the issue whether he should be allowed credit for time served while he was restricted to certain areas of the military facility at Fort Sheridan for a 19-month period as a result of the condition imposed by the recognizance bond. The trial court continued the matter, and, at a hearing held February 23, 1989, defendant was allowed to file his motion raising that issue. The trial court denied defendant’s motion for credit for time served.

Defendant appeals the denial of his motion pursuant to People v. Wilk (1988), 124 Ill. 2d 93. According to our reading of Wilk, a defendant need not file a written motion to withdraw a guilty plea pursuant to Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)) as a condition precedent to an appeal from his sentence where the defendant has presented a timely motion in the trial court seeking only the reconsideration of his sentence. (See People v. Israel (1989), 181 Ill. App. 3d 851, 859, citing People v. Favelli (1988), 176 Ill. App. 3d 618; see also People v. Carroll (1990), 195 Ill. App. 3d 445.) We will consider the merits of this appeal as it involves only an issue regarding sentencing.

On appeal, defendant again contends that he should have been allowed credit for time spent “in custody” pursuant to section 5— 8 — 7(b) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—7(b)). Defendant argues that, as a result of the condition of his bond, he was placed under significant restrictions at his military post which amounted to “custody” as that term is used in the Code. We disagree. We, therefore, affirm.

At the sentencing hearing, defendant presented evidence in mitigation.

Defendant underwent psychological counseling with his family from November 1985 until the time of the hearing in February 1989. The trial court heard the testimony of defendant’s wife and of his clinical psychologist. The psychologist stated that the defendant’s family would benefit from defendant’s support and that he could successfully complete a probationary sentence. The trial court accepted defendant’s plea and imposed sentence.

Subsequently, defendant timely requested that credit be given for the period of time when he was restricted to his military post at Fort Sheridan. Defendant’s motion averred that, upon his release on bond and pursuant to Army orders, he was confined to his barracks and had limited freedom of movement.

At the hearing on this motion, defendant testified that, upon his release from jail on the recognizance bond, the Army monitored his whereabouts 24 hours a day. He was not allowed out of the company area without an escort. When he was in his barracks, he had to report to someone every hour until he went to bed. He was allowed to go to the mess hall without an escort, but if he had to go to the judge advocate’s office or the gym or off post for any reason, he had to have an escort. Defendant went off post for therapy or for court proceedings. Defendant was permitted to go to church, but he chose not to do so because an escort would be required. For the first year, defendant was not allowed to visit his family, and he was not allowed to make telephone calls to his home from October 31, 1985, until April 1986.

Defendant was not shackled, handcuffed or put behind bars, and was not placed under guard. He was allowed to go to work unescorted, although he was under supervision there. He was allowed to go without an escort to a type of college on the base called the CLC learning center, but had to call in on his hourly breaks. Defendant testified that the restrictions and living apart from his family continued for 19 months from the time of his release on bond.

First, the trial court found that the restrictions were not directly imposed by the court. Second, the trial court found that the conditions imposed by the Army did not amount to confinement under Illinois law for purposes of computing “bond time.” The trial court then disallowed credit against his sentence for time spent under the Army’s restrictions.

Citing People ex rel. Morrison v. Sielaff (1974), 58 Ill. 2d 91, defendant argues that the condition imposed as a result of the bond resulted in surveillance and restrictions tantamount to confinement and that custody, for purposes of construing section 5— 8 — 7(b) of the Code, is the equivalent of confinement. Therefore, he believes he should be given credit for that confinement. Defendant relies additionally on People v. Ramos (1989), 181 Ill. App. 3d 1062, rev’d (1990), 138 Ill. 2d 152, for the proposition that, although a defendant is not imprisoned or detained in a penal institution, the restrictions placed on a defendant may be such that they amount to confinement or custody and defendant is therefore entitled to credit for time served.

In Ramos, following his arrest, the defendant was released from custody on a $50,000 recognizance bond with home detention a condition of the bond. In imposing sentence, the trial court denied the defendant’s request for credit for time served in home detention. The appellate court reversed the judgment, holding that the defendant was entitled to credit because of the degree of restriction imposed on him. The defendant was permitted to leave his confinement only with the consent of the court or his probation officer. The three times that he was actually permitted to leave were occasions of necessity and not of convenience. Moreover, defendant was not permitted to work or attend school. The appellate court reasoned that, although the defendant’s home detention did not amount to imprisonment, it was not far from it. The Ramos court concluded that the detention was the equivalent of custody for purposes of credit against the sentence. 181 Ill. App. 3d at 1065.

Our supreme court disagreed with the appellate decision in Ramos and reversed it. The supreme court agreed with the State’s contention that time spent “in custody” as used in section 5 — 8—7(b) does not include the period of time during which a defendant is released on bond, regardless of the restrictions that might be imposed as conditions of release. (138 Ill. 2d at 156-57.) The court further amplified its prior decision in Morrison by explaining that, in the context of section 5 — 8—7(b) of the Code, custody is to be construed as confinement in a penal institution. 138 Ill. 2d at 158.

The supreme court also pointed out that section 110 — 10(b)(13) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 110 — 10(b)(13)) authorizes the trial judge to require as a condition of bond that a defendant remain in the custody of such designated person or organization agreeing to supervise his release, but that the legislature’s use of the term “custody” in that section was not meant to blur the previously recognized distinction between individuals who are held in institutional confinement and those who are released on bond. In the context presented, the court concluded that the term “custody” was not intended to apply to the period of time during which a defendant is released on bail and held that the defendant was not entitled to sentencing credit under section 5 — 8—7(b) of the Unified Code of Corrections for his period of pretrial home confinement. Ramos, 138 Ill. 2d at 162.

We find the supreme court’s decision in Ramos dispositive of the cause before us. Even if the restrictions imposed on defendant could be attributed to the trial court (rather than the Army) by virtue of the conditions of the bond, we must conclude that the time spent by defendant under the Army’s restrictions does not qualify as time spent “in custody” for purposes of allowing credit under section 5 — 8—7(b) of the Code. The type of custody intended by that provision applies only to confinement in a penal institution and does not apply to a defendant who is released on bond, regardless of the restrictions imposed on him during that time. Certainly, defendant does not contend that he was imprisoned or placed in a penal institution, and we do not equate his circumstances with confinement in a penal institution. Defendant was, in fact, released on bond notwithstanding the restrictions imposed on him by the military. Following the supreme court’s decision in Ramos, we hold that, despite .the pretrial restrictions imposed on defendant, he is not entitled to credit against his sentence under section 5 — 8—7(b) of the Unified Code of Corrections.

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

Affirmed.

REINHARD, P.J., and DUNN, J., concur.