author: JUSTICE SCARIANO

text:
    JIMMY CANO, Petitioner, v. THE VILLAGE OF DOLTON, Department of Public Works, et al., Respondents.
    First District (2nd Division)
    No. 1 — 92—0003
    Opinion filed July 20, 1993.

      Carl K. Turpin, of Chicago, and Cook County Legal Assistance Foundation, of Harvey (Eugene Edwards, of counsel), for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Kimberly W. White, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Human Rights Commission.
    Kusper & Raucci, Chartered, of Chicago (Stanley T. Kusper, Jr., of counsel), for respondent Village of Dolton.
   JUSTICE SCARIANO

delivered the opinion of the court:

Petitioner Jimmy Cano seeks direct review of an order of the Illinois Human Rights Commission which granted a summary decision in favor of respondent Village of Dolton. We affirm.

On February 23, 1988, petitioner filed with the Illinois Department of Human Rights (DHR) a notarized charge of discrimination alleged to have been perpetrated by respondent Village of Dolton, Department of Public Works (Dolton). His complaint claimed that he was informed by letter on February 17, 1988, that his application for a position as a laborer in the Dolton department of public works had been rejected because he was deemed unsuited for the position. He denied that contention, maintaining that he was fully capable of performing the duties of a laborer, a job which warrants minimal qualifications. He averred that the true reason he was denied employment was due to his Mexican heritage and also because he was 40 years old when he was rejected for the position.

In its answer to DHR’s complaint, Dolton generally denied that petitioner’s age played any role in its rejection of his employment application. It explained that the purported statement of one of its agents upon which DHR had based its complaint was taken out of context and, further, that the statement must be deemed to have expressed only the views of that person, as he had no authority to act as spokesperson for the many Dolton officials who participated in, and concurred with, the decision not to hire petitioner.

Dolton also raised two affirmative defenses to the alleged civil rights violation. The first asserted that petitioner initially learned that he would not be hired on January 12, 1988, two days before his fortieth birthday, and was therefore not within the purview of statutory protection from age discrimination when it allegedly occurred. Dolton’s alternate defense was the simple assertion that it based its decision not to employ petitioner on factors other than his age which were both proper and reasonable.

Dolton moved for “summary judgment pursuant to section 2— 1005 of the Code of Civil Procedure.” It alleged that because petitioner had failed to comply with the 28-day limit to respond to its discovery demand which had included a request for admissions, he must be deemed to have admitted the facts requested. Among the desired admissions was that when discriminated against, petitioner was not yet 40 years old. Dolton also included with its motion the affidavit of Robert Pilat, who served as Dolton’s director of personnel and who attested that petitioner phoned him on January 12, 1988, to inquire into the status of his job application. Pilat averred that he informed him on that date that petitioner would not be hired for the position as a laborer.

Dolton moved HRC seeking an order compelling petitioner to comply with its request for answers to interrogatories and for the production of documents, but the resolution of the motion was continued until August 20, 1990, providing petitioner an additional 21 days to comply with Dolton’s discovery requests. At the same time, he was granted leave until August 6, 1990, to serve his own discovery requests on Dolton. The administrative law judge reserved ruling on Dolton's motion for “summary judgment” until discovery was completed.

Petitioner filed a motion in opposition to Dolton’s motion for summary order on October 19, 1990, wherein he stated that he had complied with Dolton’s discovery requests on August 22, 1990, and explained that his tardiness was due to difficulties encountered by his counsel in obtaining his signature and that of a notary in order to verify his responses. He filed no counteraffidavit which contradicted Pi-lat’s attestation that petitioner learned that he would not be hired on January 12, 1988; instead, as an exhibit to his motion in opposition to summary decision, he affixed a copy of his answers to Dolton's interrogatories, which we presume, he had served on Dolton. In his responses to the interrogatories, he stated that he first learned he would not be employed by Dolton when he received the letter from Pilat dated February 17, 1988, officially announcing his rejection. He agreed that on January 12, 1988, he spoke with Pilat but he recalled that on that date he was informed only that no hiring decision had been reached. The copy filed with HRC, as it appears in the record before this court, was neither signed by petitioner nor notarized.

On January 14, 1991, administrative law judge Anne E. Whitney wrote to petitioner’s counsel of record to advise him that for the purposes of the pending motion for summary decision, the unverified copy of his answers to Dolton’s interrogatories would not serve as an adequate counterweight to the affidavit of Pilat. Emphasizing the word “verified,” her letter went on to explain that there must be verified responses presented to the Commission before a genuine issue of fact could be found to exist with regard to when petitioner first learned that he would not be offered a position by Dolton. She asked that petitioner correct the oversight by proffering the proper papers to HRC as soon as practicable.

Judge Whitney waited for a reply to her letter until April 9, 1991, when she made her recommendation to HRC on Dolton’s motion for summary decision. Since, even after the letter she sent to his counsel, petitioner still failed to file either an affidavit or a verified copy of his answers to Dolton’s interrogatories, she was forced to accept as true the facts averred in the Pilat affidavit and to conclude therefrom that petitioner was aware on January 12, 1988, that he would not be hired by Dolton. As a result, because he was 39 years old on that date and because the protection from ageism applies solely to persons from ages 40 to 70, she determined that he was not within the protected class of individuals as defined by section 1 — 102(a) of the Human Rights Act (Ill. Rev. Stat. 1989, ch. 68, par. 1 — 102(a)) when the purported age discrimination took place. She therefore recommended that a summary order be entered in Dolton’s favor and that the complaint be dismissed.

Before HRC entered an order on Dolton’s motion for summary decision, petitioner raised exceptions to the recommended order of the administrative law judge. He argued that his verified charge to DHR, the finding of a DHR investigator that there existed substantial evidence that he had been discriminated against because of his age, the verified complaint filed by DHR and the copy of his answers to Dolton’s interrogatories combined to create a question of fact as to when he learned that he would not be hired. He urged that until this question was resolved, no order should issue from HRC. HRC disagreed and found that the administrative law judge had ruled correctly. It accordingly adopted her recommendation and ordered petitioner’s complaint dismissed on November 27,1991.

I

The first issue before this court concerns our very ability to consider this petition. Dolton contends that under Supreme Court Rules 303(a)(l) and 335(h) (134 Ill. 2d Rules 303(a)(1), 335(h)), in order to vest this court with jurisdiction, a petition for direct appellate review of orders of HRC must be filed within 30 days of the issuance of that order. It argues, without conceding the point, that even if it were to grant that petitioner filed his petition on January 2, 1992, when he claims he did, that date would be an untimely 35 days after the order was handed down by HRC.

Dolton rests its argument on County of Cook, Cermak Health Services v. Illinois State Local Labor Relations Board (1991), 144 Ill. 2d 326, 579 N.E.2d 866, wherein our supreme court held that the period within which to file a petition for direct appellate review of a decision of a local labor board would be the 30 days provided in Supreme Court Rule 303 rather than the 35 days allowed by section 3 — 103 of the Administrative Review Law (Ill. Rev. Stat. 1991, ch. 110, par. 3— 103). Dolton reads this opinion to hold that the legislature may never exercise its constitutional power to provide for direct appellate review of administrative decisions (see Ill. Const. 1970, art. VI, §6) so as to allow petitioners any time other than 30 days to file petitions for review. It contends accordingly that the 35-day time frame for filing petitions as expressly provided in the Human Rights Act (Ill. Rev. Stat. 1991, ch. 68, par. 8 — 111(A)(l)) is of no import and that this court must dismiss the petition for want of jurisdiction.

However, Dolton reads the Cermak Health case too broadly. The court did not express the expansive belief that whenever the legislature authorizes the filing of a petition for direct appellate review of administrative decisions which does not precisely comport with the 30-day time limitations of Rule 303(a), it will have unconstitutionally usurped the supreme court’s constitutionally recognized primacy over the State’s judiciary. Instead, the Cermak Health court recognized that under the constitution, where the concern is the promulgation of procedural rules addressing direct appellate review, the two branches share concurrent authority. (Cermak Health, 144 Ill. 2d at 334, 579 N.E.2d at 870.) Rather than the broad holding suggested by Dolton, we conclude that the court narrowly found that the legislature could not exercise its concurrent power by implication, and it therefore overruled an appellate court decision which had held that where the General Assembly authorizes direct appellate review, it was to be assumed that it intended to apply the 35-day limit of the Administrative Review Law. Ill. Rev. Stat. 1991, ch. 110, par. 3 — 103.

In Merwin v. State Board of Elections (1992), 229 Ill. App. 3d 236, 239, 593 N.E.2d 709, 712, this court summarized the rule of Cermak Health as follows:

“Generally, a supreme court rule will preempt a legislative enactment when the latter does not expressly state a period for filing an administrative review complaint. [Citation.] Conversely, a supreme court rule will not preempt a statute where the statute explicitly sets forth a time period for seeking administrative review, as the subject is initially considered to be within the province of the legislature. [Citation.]”

(See also Central City Education Association v. Illinois Educational Labor Relations Board (1992), 149 Ill. 2d 496, 533, 599 N.E.2d 892, 909, quoting Cermak Health for the proposition that “although the legislature could have explicitly stated in the [Act] a time within which direct review of administrative orders must be commenced, it did not do so” (emphasis added).) It is clear, therefore, that Dolton misapprehends Cermak Health, and it is likewise plain that the 35-day appeal period expressly set forth in the Human Rights Act controls review of the HRC orders; therefore, petitioner’s filing, if made on the thirty-fifth day after HRC served its order, would be timely and would vest this court with direct review jurisdiction.

II

Both respondents join in asserting next that even if this court applies the 35-day statutory limitation period, the petition for review in the instant case was filed on the thirty-sixth day following issuance of HRC’s final order as evidenced by the appellate court clerk’s file stamp bearing the date January 3, 1992. As a result, they maintain that no matter which limitation period is applicable, this court may not review the order because under either we lack jurisdiction.

As a rule, the file stamp or mark of the clerk’s office can be used to establish that a paper tendered to the court was filed within the requisite time frame. (See 1 C. Nichols, Illinois Civil Practice §380, at 497 (rev. ed. 1991) (“The file mark on a paper required to be filed raises the presumption that it was delivered to the proper officer for filing at a date indicated by the file mark”); see also Gage v. Nichols (1890), 135 Ill. 128, 25 N.E. 672; Polka v. Turner (1989), 182 Ill. App. 3d 705, 538 N.E.2d 640.) However, the file stamp is only prima facie proof of the date when the paper was filed, not a conclusive presumption of filing. It may be rebutted by an affidavit which attests that the filing was tendered on a date other than that appearing on the stamp. See Turner, 182 Ill. App. 3d 705, 538 N.E.2d 640 (holding that affidavits offered to show that the complaint was tendered five days before date reflected on file stamp were factually insufficient to rebut presumption created by file stamp).

Here, the petition bears two dates. The first has the date January 2, 1992, and the second shows January 3, 1992. The first date stamp was obscured by pen scratchings and was superscribed “Void.” In an affidavit accompanying his reply brief to this court, petitioner’s attorney related that on January 2, 1992, he tendered to the clerk of this court the petition for review, and it was time stamped January 2, 1992, 4:22 p.m. He was informed by a court official that he could not be assigned a case number that day because the clerk’s computers were not operating. He was instructed to call the office the next day in order to discover his case number. The affidavit went on to disavow any knowledge of the voiding of the January 2, 1992, file stamp and the subsequent restamping on the next day. He also averred that he served counsel for Dolton with a copy of the petition bearing only the January 2, 1992, stamp. Neither respondent offers anything which contradicts these assertions, which we find more than adequate to rebut the presumption arising from the multiple time stamps. Thus, we must conclude that, consistent with the affidavit, petitioner filed his petition for review on the thirty-fifth day after HRC rendered its final order. Pursuant to section 8 — 111 of the Human Rights Act, we may therefore assert jurisdiction and consider the merits of the petition.

Ill

The final issue to be reviewed is whether HRC properly granted a summary order in favor of Dolton, as authorized by section 8 — 106.1 of the Act. (Ill. Rev. Stat. 1991, ch. 68, par. 8 — 106.1.) Under the statute, HRC may render a summary decision in favor of either a complainant or a respondent “if the pleadings and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a recommended order as a matter of law.” Ill. Rev. Stat. 1991, ch. 68, par. 8 — 106.1.

The Illinois Human Rights Act prohibits discriminatory hiring practices where the decision to hire or not to hire is based on, inter alia, an applicant’s age. (Ill. Rev. Stat. 1991, ch. 68, par. 2 — 101.) In order to survive a respondent’s motion for summary decision, a complainant alleging age discrimination must be able to show that there exists a genuine issue of fact as to each of the following elements: (1) whether he is a member of a class of individuals protected; (2) whether he has applied for an available position for which he is qualified; and (3) that he was not given the position and it was filled by younger persons of equal or lesser qualification. (See Zaderaka v. Illinois Human Rights Comm’n (1989), 131 Ill. 2d 172, 545 N.E.2d 684.) Of the three, the factor pertinent to our review is whether petitioner was a member of the protected class which the statute limits to those individuals who have achieved the chronological age of at least 40 years when the discrimination occurs. Ill. Rev. Stat. 1991, ch. 68, par. 1 — 103; see also Ring v. R.J. Reynolds Industries Inc. (N.D. Ill. 1984), 597 F. Supp. 1277 (dismissing the plaintiff’s claim for age discrimination brought pursuant to the Illinois Act because he was 39 years old when terminated from his position).

This court has held that for the purpose of the 180-day limitation period to file a complaint with DHR, a discriminatory event will be complete and will be considered actionable at the first instant in which a complainant receives notice of the allegedly discriminatory conduct. (Constant v. Turris Coal Co. (1990), 199 Ill. App. 3d 214, 222, 556 N.E.2d 823, 829; accord Larrance v. Illinois Human Rights Comm’n (1988), 166 Ill. App. 3d 224, 519 N.E.2d 1203, appeal denied (1988), 122 Ill. 2d 577, 530 N.E.2d 248; Board of Governors of State Colleges & Universities for Northeastern Illinois University v. Rothbardt (1981), 98 Ill. App. 3d 423, 424 N.E.2d 742.) It would seem a necessary corollary to that rule to hold similarly that whether an individual is a member of the protected class turns on his chronological age on the day the discrimination against him is complete or, put another way, his age is fixed, for the purpose of determining whether he is a member of the protected class, on the day that he is first advised that he will not be hired. In the case at bar, HRC, after applying this rule, granted summary order in Dolton’s favor because, on the basis of the evidence before it, it fixed the date that petitioner was discriminated against to be January 12, 1988, two days before he fell within the aegis of the statute. It found, therefore, that no cognizable claim for age discrimination existed.

A summary decision is the administrative agency procedural analogue to the motion for summary judgment in the Code of Civil Procedure. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005.) Because of the similarities of the two, it would seem appropriate to employ the case law which has grown out of the summary judgment motion practice when reviewing the propriety of such an order on direct review, the only difference being that while this court reviews motions for summary judgment de novo (see Myers v. Health Specialists, S.C. (1992), 225 Ill. App. 3d 68, 72, 587 N.E.2d 494, 497, appeal denied (1992), 145 Ill. 2d 635, 596 N.E.2d 630), the Human Rights Act empowers this court to reverse a decision made by HRC only if it is against the manifest weight of the evidence. Ill. Rev. Stat. 1991, ch. 68, par. 8— 111(A)(2) (“In any proceeding brought for judicial review, the Commission’s findings of fact shall be sustained unless the court determines that such findings are contrary to the manifest weight of the evidence”). (Emphasis added.)

Petitioner contends that the record presents a factual question with regard to when he first learned that he would not be hired, and thus it was against the manifest weight of the evidence to grant summary order in Dolton’s favor. He protests that it was not until he received the letter from Dolton dated February 17, 1988, at which time he was a member of the protected class of individuals between 40 and 70 years old. Respondents maintain that because petitioner offered nothing which contradicted the affidavit of Pilat wherein he swore that he notified him on January 12, 1988, that he would not be employed, his statement must be accepted as true, and in accord with that truth, petitioner has no viable claim for age discrimination.

Respondents are correct. Petitioner has filed no supplemental evidence with HRC which would be a legally sufficient contradiction of Pilat’s affidavit. He asks this court to find that his initial charge, which was signed and notarized, along with the complaint brought by DHR, which was also verified, create a factual question because each asserts that his first notice of discrimination was on February 17, 1988, after he had reached the age of 40. But it has become axiomatic that the allegations contained in pleadings which are controverted by affidavit will not in and of themselves give rise to a triable issue of fact to deny a movant summary judgment. (Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457; Pearson v. Partee (1991), 218 Ill. App. 3d 178, 578 N.E.2d 81.) If the party seeking summary judgment supplies facts via affidavit, which, when left uncontradicted, would warrant judgment in its favor as a matter of law, the opponent may not sit idly by and rely on his pleadings to create a genuine material factual issue. Zannis v. Lake Shore Radiologists, Ltd. (1982), 104 Ill. App. 3d 484, 432 N.E.2d 1108.

Petitioner also cites the copy of his answers to Dolton’s interrogatories which he attached to his motion in opposition to summary decision and maintains that they negate the effect of Pilat’s affidavit because one answer stated that he first learned he would not be hired on February 17, 1988. While this court has determined that, in the context of summary judgment, answers to interrogatories can serve as the functional equivalent of affidavits (Komater v. Kenton Court Associates (1986), 151 Ill. App. 3d 632, 636, 502 N.E.2d 1295, 1298), that decision can apply only in those instances where the answers comport with the dictate of Supreme Court Rule 213(c) (134 Ill. 2d R. 213(c)), which holds that only sworn answers may be filed. (See also 56 Ill. Adm. Code §5300.720(a)(l) (1991) (procedural rule of HRC which mandates that interrogatories be either answered under oath or affirmation or that an objection to a question be noted instead).) Here, the copy of petitioner’s answers which were filed with HRC were not even signed, let alone verified, and thus, they may not be considered a legally recognized substitute for a signed and notarized affidavit. See Wolf v. Liberia (1987), 153 Ill. App. 3d 488, 505 N.E.2d 1202 (declining to ascribe any weight to unsigned and unsworn statements relied upon by plaintiff in an attempt to avoid summary judgment and holding that such evidence could not be considered on review).

It does not affect the validity of HRC’s order that petitioner may have served his signed and notarized answers to the interrogatories on Dolton. Under section 8 — 106.1 of the Act, the decision to grant summary order is to be based on the pleadings and affidavits before the board. This court has held in the past that where a party has ample opportunity to file counteraffidavits in opposition, and yet declined to do so, the granting of summary judgment on that basis will be affirmed. (Smith v. South Shore Hospital (1989), 187 Ill. App. 3d 847, 854, 543 N.E.2d 868, 871.) The omission in the instant case is particularly egregious in view of Judge Whitney’s letter to petitioner’s counsel where she distinctly warned him that unless he provided the verified answers to the interrogatories rather than an unverified copy of them, she would have no choice but to grant Dolton’s motion for “summary judgment.” She waited for the proper response for nearly three months, and when none arrived, she finally recommended summary decision in Dolton’s favor, which ultimately was approved and adopted by HRC.

The need for sworn affidavit-substitutes also forebodes a similar fate for the report of DHR’s investigator wherein he found substantial evidence of age discrimination. The investigator’s findings were not based on any statements made by petitioner under oath and, as a result, cannot serve as a legitimate substitute for an affidavit. Finally, petitioner relates in his brief to this court that he attempted to file the verified answers with HRC after the administrative law judge had recommended dismissal of his complaint, but was denied leave to file. However, even if we were to agree that this belated attempt could have some effect on the validity of HRC’s order, there is nothing in the record which evidences the purported tendering. Therefore, we cannot utilize this evidence to find that HRC’s grant of summary decision was against the manifest weight of the evidence. (See In re Marriage of Naylor (1991), 220 Ill. App. 3d 366, 581 N.E.2d 25.) Accordingly, since in the record before this court there is no competent evidence which counteracts the affidavit of Pilat wherein he swore that on January 12, 1988, he informed petitioner that he would not be hired by Dolton, and that on that day, being less than 40 years old, petitioner was not yet protected by the Human Rights Act, summary decision in Dolton’s favor was proper.

Affirmed.

McCORMICK, P.J., and DiVITO, J., concur.

      Since the pending complaint was brought not before any circuit court of this State, but before the Human Rights Commission, we believe that the Code of Civil Procedure is inapplicable. Instead, we assume that Dolton was referring the Commission to the summary decision procedure offered by the controlling statutory scheme: section 8 — 106.1 of the Illinois Human Rights Act. Ill. Rev. Stat. 1989, ch. 68, par. 8-106.1.

      The statute provides in pertinent part:
      “Judicial Review. Any complainant or respondent may apply for and obtain judicial review of a final order of the [Human Rights] Commission entered under this Act by filing a petition for review in the Appellate Court within 35 days after entry of the order of the Commission, in accordance with Supreme Court Rule 335.” Ill. Rev. Stat. 1991, ch. 68, par. 8 — 111.


source: Caselaw Access Project

author: JUSTICE HOFFMAN JUSTICE JOHNSON,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARNOLD BICKHAM, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 92—0468
    Opinion filed July 22, 1993.

      JOHNSON, J., dissenting.
    James D. Montgomery & Associates, Ltd., of Chicago (James D. Montgomery and Geneace Williams, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and Christine Cook, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HOFFMAN

delivered the opinion of the court:

The defendant, Arnold Bickham, was indicted along with a co-defendant for various violations stemming from their alleged performance of abortions without a medical license. Count V of the indictment charged that the defendant violated section 49 of the Medical Practice Act (Ill. Rev. Stat. 1987, ch. 111, par. 4400 — 49) (hereinafter the Act), by performing a pelvic examination upon the complainant, Charlene Wells, without a medical license. Following a bench trial, the defendant was acquitted on all charges except those under count V, for which he was found guilty and sentenced to 30 months’ probation, a $10,000 fine, 2,600 hours of community service, and six months’ imprisonment which was stayed as long as the community service was promptly and continuously performed. The defendant now appeals his conviction.

The defendant received his license to practice medicine in Illinois in 1966, but that license was revoked for a period of five years on October 31, 1988.

On June 8, 1989, the complainant went to the Friendship Medical Clinic accompanied by her mother, Diane Sykes, for the purpose of determining whether the complainant was pregnant. When a nurse called the complainant into an examining room, Sykes stood up to accompany her daughter but was told by the defendant that the complainant had to come in alone. The defendant took the complainant to an examining room where he performed a pelvic examination on her by inserting his fingers into her vagina while pressing on her stomach with his other hand. No licensed physician was in attendance during the course of the examination. After the examination, the defendant walked out of the examining room and told Diane Sykes that the complainant was six to eight weeks pregnant. When Sykes expressed disagreement with this estimate, the defendant responded “I’m the doctor.” After completing various forms, the complainant was scheduled to undergo an abortion on the following day.

On June 9, 1989, the complainant returned to the Friendship Medical Clinic, where an abortion was performed upon her by Dr. Inno Obasi. Prior to performing the procedure, Dr. Obasi gave the complainant a second pelvic examination and informed her that she was 13 weeks pregnant. The defendant was also present during this exam.

Under section 49 of the Act, as effective on June 8, 1989, it was a crime for any person without a medical license to hold himself out to the public as being engaged in the diagnosis or treatment of ailments of human beings, or to diagnose or attempt to diagnose, operate upon, profess to heal, prescribe for, or otherwise treat any ailment or supposed ailment of another. Ill. Rev. Stat. 1987, ch. 111, par. 4400-49.

The defendant argues that his conviction should be reversed because his performance of a pelvic examination under the circumstances of this case did not constitute the practice of medicine. In support of this contention, the defendant advances several arguments.

Relying primarily upon the decision of our supreme court in Biogenetics, Ltd. v. Department of Public Health (1982), 89 Ill. 2d 92, 431 N.E.2d 1042, the defendant contends that his performance of a pelvic examination upon the complainant on June 8, 1989, did not constitute a violation of the Act because it was done under the authority and supervision of Dr. Obasi, a licensed physician, who conducted his own pelvic examination prior to performing the complainant’s abortion on June 9, 1989. The defendant’s contention in this regard must fail for two reasons.

First, although the defendant testified that he only performed pelvic examinations at the request of a licensed physician, Dr. Obasi testified that he never authorized the defendant to do a pelvic examination for any of his patients. On this point, the defendant argues that Dr. Obasi’s testimony should be viewed with suspicion because Obasi had reason to believe that if he admitted he authorized the defendant to perform the examination, Obasi might place himself at risk for criminal prosecution. However, that theorized motivation on Obasi’s part was no more compelling than the motivation of the defendant, who had already been charged with a crime, to testify to the contrary. In any case, the trial judge heard the testimony of the witnesses and observed their demeanor; the question of their credibility and the weight to be given to their testimony was for him to determine as the trier of fact. (People v. Jimerson (1989), 127 Ill. 2d 12, 535 N.E.2d 889; People v. Brisbon (1985), 106 Ill. 2d 342, 478 N.E.2d 402.) The trial judge determined that the defendant did not perform the pelvic examination upon the complainant under the direction or supervision of a licensed physician. When we view the evidence in this case in the light most favorable to the State (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267), we are unable to say that no rational trier of fact could have so found.

Second, the defendant’s reliance upon Biogenetics, Ltd. v. Department of Public Health, 89 Ill. 2d 92, is misplaced because the facts and issues in that case are readily distinguishable from those in the case at bar. Biogenetics, Ltd., was an ambulatory surgical treatment center licensed to perform first-trimester abortions. It appealed from the suspension of its license for several alleged violations of the Ambulatory Surgical Treatment Center Act (Ill. Rev. Stat. 1979, ch. 111½, par. 157 — 8.1 et seq.) (ASTC Act). One such violation was the performance by Dr. Shaista Khan, a physician awaiting licensing in the United States, of screening pelvic examinations upon patients who had received negative or inconclusive pregnancy test results. Khan made no diagnosis; she simply looked for any evidence of pregnancy and reported her findings to a licensed physician. (Biogenetics, 89 Ill. 2d at 97.) In contrast, the defendant in this case not only diagnosed the complainant’s pregnancy, but also announced the length of gestation to her and her mother without consulting anyone, much less a licensed physician. Doctor Khan did not identify herself as a doctor to the patients, but the defendant here did so. Doctor Khan performed under the direct supervision of a licensed physician whereas, as indicated earlier, the trial judge in this case found that the defendant did not perform the pelvic examination at issue under the direction or supervision of a licensed physician. It is true that the court in Biogenetics found that the performance of a pelvic examination by an unlicensed doctor did not constitute the practice of medicine “when performed under the direct supervision of a licensed physician.” (Biogenetics, 89 Ill. 2d at 98.) However, the court never passed upon the question of whether such an examination would constitute the practice of medicine when done without direction or supervision.

Next, the defendant argues that his performance of a pelvic examination was not conduct proscribed by the Act. He maintains that his actions did not amount to the diagnosis of an ailment, but merely constituted an inspection to determine if the complainant was pregnant, and if so, the length of her pregnancy.

As indicated above, the Act as it existed at the time of the defendant’s conduct barred the diagnosis of ailments but not conditions. In determining the legislative intent behind a particular statute, the plain meaning of the language employed must be given primary consideration. (Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 557 N.E.2d 873.) To that end, to “diagnose” means to “identify (as a disease or condition) by symptoms or distinguishing characteristics *** [or] to determine the causes of or the nature of by diagnosis.” (Webster’s Third New International Dictionary 622 (1986).) An “ailment” is defined as “a bodily sickness, disorder, or chronic disease.” Webster’s Third New International Dictionary 45 (1986).

There is no question that the defendant’s acts in performing the complainant’s pelvic examination and announcing to her and her mother that she was pregnant constituted a diagnosis. The record also established that the defendant held himself out to both the complainant and her mother as being a doctor at the time he announced his diagnosis. The question for this court is whether it can be said that the defendant diagnosed or attempted to diagnose an “ailment.”

Our research found no reported case in Illinois passing upon the question of whether, for purposes of the Act, pregnancy is considered to be an ailment. In People v. Shaver (1937), 367 Ill. 339, 11 N.E.2d 400, the issue was raised but left unanswered. We are of the opinion, as was Dr. Julian Schink, the State’s expert witness, that pregnancy is a condition as opposed to an ailment.

Thus, under the Act, if the only purpose of a pelvic examination was to determine whether a woman was pregnant, and if so, the length of the pregnancy, then although diagnostic in nature, such an examination would constitute the diagnosis of a condition rather than an ailment, and the defendant’s argument might have merit. However, Dr. Schink testified that in addition to the above, a pelvic examination is also performed to confirm that a pregnancy is in the woman’s uterus as opposed to her fallopian tube. An ectopic pregnancy is not a condition but is a bodily disorder, or an ailment. As such, we are of the opinion that the purpose of a pelvic examination is not solely to diagnose the condition of pregnancy, but also involves the diagnosis of the presence or absence of an ailment, an ectopic pregnancy.

Additionally, the defendant maintains that pelvic examinations do not constitute the practice of medicine under the Act because they may be performed by nurses and physician’s assistants. (See Biogenetics, 89 Ill. 2d at 98; Sermchief v. Gonzalez (Mo. 1983), 660 S.W.2d 683.) However, both the Illinois Nursing Act of 1987 (Ill. Rev. Stat. 1987, ch. 111, par. 3501 et seq.) and the Physician Assistant Practice Act of 1987 (Ill. Rev. Stat. 1987, ch. 111, par. 4601 et seq.) require the practitioner to be licensed or certified by the State and to perform at the direction or under the supervision of a licensed physician. The defendant possessed no license or certificate and, as found by the trial court, did not perform the pelvic examination at issue under the direction or supervision of any licensed physician. The fact that licensed professionals other than physicians may be permitted to perform certain medical procedures under the supervision of a licensed physician does not render the performance of those same procedures by unsupervised and unlicensed individuals outside the ambit of the Medical Practice Act, especially when, as in this case, the unlicensed individual represents himself to be a doctor.

By reason of the foregoing, the defendant’s conduct in performing a pelvic examination upon the complainant constituted action proscribed by the Act. The fact that Dr. Obasi conducted his own examination prior to performing complainant’s abortion and did not rely upon the defendant’s diagnosis is of no consequence, because the Act prohibits the very making of a diagnosis and contains no requirement that the diagnosis form the basis of any medical treatment.

Lastly, the defendant contends that, because a pelvic examination may be performed by physicians’ assistants under the supervision of a licensed physician, he should have been charged under the Physician Assistant Practice Act (Ill. Rev. Stat. 1991, ch. 111, par. 4601 et seq.) rather than the Medical Practice Act. The argument fails on its merits. The defendant was neither certified under the Physician Assistant Practice Act nor performing the pelvic examination under the supervision of a licensed physician. Additionally, when the State’s Attorney has probable cause to believe that a person has committed an offense as defined by any given statute, it is left to his discretion to decide upon the charge to be presented to a grand jury. People v. Travis (1981), 94 Ill. App. 3d 983, 419 N.E.2d 433.

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

Affirmed.

CAHILL, J., concurs.

JUSTICE JOHNSON,

dissenting:

I respectfully disagree with the majority. Based on my careful review of the evidence, much of which the majority fails to discuss, I cannot join in the majority opinion. For the reasons set forth below, I would reverse the judgment of the trial court.

It is important to note at the outset that defendant was convicted of performing a pelvic examination upon the complainant without a medical license. The majority concedes that an unlicensed individual with sufficient knowledge and training may properly perform a pelvic examination under the direction or supervision of a licensed physician. (See Biogenetics, Ltd. v. Department of Public Health (1982), 89 Ill. 2d 92.) Defendant contends that his conviction should be reversed because the conduct for which he was convicted did not constitute the practice of medicine and did not violate the Medical Practice Act (Ill. Rev. Stat. 1987, ch. 111, par. 4400 — 49). In support of this contention, defendant offers numerous arguments, two of which I will discuss and also which I believe are implausibly rejected by the majority.

Defendant argues that Dr. Obasi authorized him to perform complainant’s pelvic examination. The majority rejects this argument, relying heavily on Dr. Obasi’s testimony. However, I agree with defendant that Dr. Obasi’s testimony that he never authorized defendant to perform pelvic examinations on any of his patients must be viewed with great suspicion. First, copies of an agreement between defendant and Dr. Obasi were introduced which stated that all medical services performed at the Friendship Medical Center (FMC) were under Dr. Obasi’s exclusive control, and that Dr. Obasi had complete responsibility and authority over all medical procedures and staff. Second, Dr. Obasi testified that he was told by Investigator Harris that cooperating in defendant’s investigation may affect the charges brought against himself. I cannot join in the majority’s attempt to discount Dr. Obasi’s strong motivation to testify less than truthfully.

Notwithstanding the inherently suspicious nature of Dr. Obasi’s testimony, other evidence presented at trial casts strong doubt on Dr. Obasi’s testimony that he never authorized defendant to perform pelvic examinations. Dr. Moragne, a licensed doctor at FMC, testified that he authorized defendant to perform pelvic examinations and give injections to his patients. Peggy Broadway testified at trial that while defendant performed a pelvic examination upon her, Dr. Obasi was present in the examining room.

Additionally, complainant testified that prior to receiving a second pelvic examination on June 9, 1989, defendant gave her an in-, jection in Dr. Obasi’s presence. Then prior to performing complainant’s abortion, Dr. Obasi discussed the length of gestation with defendant indicating that Dr. Obasi knew defendant had also performed a pelvic exam upon the complainant. Given the unsatisfactory nature of the evidence upon which defendant’s conviction rests, even when viewed in the light most favorable to the prosecution, I am constrained to find that a reasonable doubt exists as to defendant’s guilt. People v. Collins (1985), 106 Ill. 2d 237, 261.

Likewise, I cannot agree with the majority’s conclusion that Biogenetics, Ltd. v. Department of Public Health (1982), 89 Ill. 2d 92, is inapposite here. In the present case, there is no dispute that defendant’s conduct was virtually identical to that of Dr. Khan as described in Biogenetics. In Biogenetics, our supreme court emphatically held that none of the activities for which Dr. Khan was charged constituted the practice of medicine when performed under the direct supervision of a licensed physician. (Biogenetics, 89 Ill. 2d at 98.) Consequently, Biogenetics should control here, especially since the agreement between defendant and Dr. Obasi required that FMC be operated in accordance with the Ambulatory Surgical Treatment Center Act (the Act). Moreover, the fact that FMC may not have been licensed pursuant to the Act is insignificant when compared to the admitted similarities between defendant’s and Dr. Khan’s conduct.

In spite of Biogenetics, the majority would affirm defendant’s conviction because he identified himself as a doctor and announced his findings to complainant and her mother. However, defendant was neither charged with nor convicted of holding himself out as a physician. To the contrary, defendant was convicted of performing a pelvic examination without a medical license. Strong and convincing evidence presented at trial suggests that defendant was authorized to perform complainant’s pelvic exam. Given the import of this evidence, and in light of Biogenetics, I cannot agree that defendant was proved guilty beyond a reasonable doubt.

Defendant also argues on appeal that his performance of a pelvic examination was not proscribed by the Medical Practice Act (Ill. Rev. Stat. 1987, ch. 111, par. 4400 — 49). In rejecting this argument, the majority states “the [Medical Practice] Act as it existed at the time of defendant’s conduct barred the diagnosis of ailments but not conditions.” (250 Ill. App. 3d at 145.) The majority further reasons that pregnancy is a condition, not an ailment. If this is so, then defendant’s argument should prevail. However, citing Dr. Schink’s testimony that pelvic examinations reveal whether a pregnancy is normal or ectopic, the majority strains to conclude that pelvic examinations constitute diagnosing an ailment. Yet, defendant testified that he performed complainant’s pelvic examination under Dr. Obasi’s direction to determine only whether complainant was pregnant and, if so, the gestational age. No evidence contradicted defendant’s testimony in this regard.

Lastly, I would note, as has the majority, that no Illinois court has held that performance of a pelvic examination constitutes the practice of medicine when done without direction. The only Illinois court faced with the question, Biogenetics, Ltd. v. Department of Public Health (1982), 89 Ill. 2d 92, declined to answer it. I am persuaded neither by the facts of this case nor by the majority opinion that this court should answer the question in the affirmative.

For the foregoing reasons, I would reverse the judgment of the circuit court.


author: JUSTICE HOFFMAN

text:
    SHEA, ROGAL AND ASSOCIATES, LTD., Plaintiff-Appellee, v. LESLIE VOLKSWAGEN, INC., Defendant-Appellant.
    First District (4th Division)
    No. 1 — 92—1231
    Opinion filed July 22, 1993.

      Edward T. Graham, of Wheaton (Max Rittenberg, of counsel), for appellant.
    Susan M. Coleman, of Westchester, for appellee.
   JUSTICE HOFFMAN

delivered the opinion of the court:

This action commenced on September 21, 1988, when the plaintiff, Shea, Rogal and Associates, Ltd. (SRA), filed a complaint against its former client, the defendant, Leslie Volkswagen, Inc., seeking to recover the balance of attorney fees it claimed were due on Leslie’s account. With its answer to SRA’s amended complaint, Leslie raised the affirmative defense of accord and satisfaction, contending that on September 21, 1987, it sent a check to SRA which recited that it was “payment in full for all legal services rendered,” and that SRA accepted the conditional draft by endorsing it, depositing it in the bank, and retaining the funds.

On January 30, 1990, Leslie moved for summary judgment based upon its affirmative defense. In support of its motion, Leslie relied upon SRA’s response to a request to admit facts wherein SRA admitted that it had received the check on or about September 21, 1987; that the reverse side of the check bore the words “this check is payment in full for all legal services rendered”; and that SRA subsequently endorsed the check and credited it to SRA’s account at its depository bank. Leslie also relied upon the affidavit of its president, Ralph Rosengarden, which asserted that between March 6, 1987, and September 21, 1987, a bona fide dispute existed between Leslie and SRA regarding the amount of fees charged for legal services and that on September 21, 1987, Rosengarden issued the check purportedly in full satisfaction of all amounts claimed by SRA.

SRA filed its response to the motion supported by the affidavits of Gerald W. Shea, an officer of SRA, and his secretary, Kathleen H. Lightfoot. SRA argued that summary judgment in favor of Leslie would be improper because there had in fact been no dispute amongst the parties as to the amounts due, and it had not intended to accept the subject check as a full satisfaction of all sums due. In support of the latter argument, SRA maintained that none of its firm members had been aware prior to the deposit of the check that the check bore the “payment in full” language. Rather, the check was received by Lightfoot, the firm’s secretary, who completed SRA’s standard endorsement procedures and then deposited the check into the firm’s bank account.

On March 13, 1990, following a hearing, the trial court granted Leslie’s summary judgment motion, but on April 10, 1990, on motion to reconsider by SRA, the court reversed its decision and set the matter for a jury trial.

During the trial, Leslie twice moved for a directed verdict. In denying the motions, the court found that a factual dispute existed as to whether the alleged accord and satisfaction was the result of a meeting of the minds between SRA and Leslie.

The jury subsequently returned a verdict for SRA in the amount of $6,000. The trial court denied a motion by Leslie for judgment notwithstanding the verdict.

On October 23, 1990, Leslie appealed the verdict and this court reversed the judgment and remanded the case for entry of judgment in Leslie’s favor. (Shea, Rogal & Associates, Ltd. v. Leslie Volkswa gen, Inc. (1991), 216 Ill. App. 3d 66, 576 N.E.2d 209.) This court determined that (1) a bona fide dispute existed over the amount of fees due SEA; and (2) because Lightfoot was SRA’s agent, her action in endorsing the check despite its conditional nature could be imputed to SEA, manifesting its intent to accept the check as an accord and satisfaction. Shea, 216 Ill. App. 3d at 71-72.

Pursuant to the mandate of this court, the trial court entered judgment notwithstanding the verdict on behalf of Leslie. Leslie then filed a motion pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137), seeking an award of attorney fees and costs incurred in the defense of this action.

Following a hearing, the trial court denied Leslie’s motion and Leslie now appeals that denial. For the reasons which follow, we affirm the decision of the trial court.

Rule 137 provides in pertinent part as follows:

“Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record ***. *** The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. *** If a pleading, motion, or other paper is signed in violation of this rule, the court *** may impose *** an appropriate sanction, which may include an order to pay *** reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney fee.” 134 Ill. 2d R. 137.

The purpose of Rule 137, formerly section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 611), is to prevent abuse of the judicial process by penalizing claimants who bring vexatious or harassing actions based upon unsupported allegations of law or fact. (Singer v. Brookman (1991), 217 Ill. App. 3d 870, 879, 578 N.E.2d 1; Lewy v. Koeckritz International, Inc. (1991), 211 Ill. App. 3d 330, 334, 570 N.E.2d 362.) Because the rule is penal in nature, a court must strictly construe its provisions. Lewy, 211 Ill. App. 3d at 334.

Rule 137 mandates that signing attorneys or parties make reasonable inquiry into the basis for a pleading before filing it. (Chi cago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 622, 532 N.E.2d 595.) In evaluating the signing party’s conduct in this regard, a court must consider reasonableness based upon circumstances existing at the time the pleading was filed, rather than engage in hindsight. (Chicago Title, 177 Ill. App. 3d at 623; Lewy, 211 Ill. App. 3d at 334.) The standard to be employed is an objective one; it is not sufficient that the attorney “honestly believed” the case was well-grounded in fact or law. (See Cmarko v. Fisher (1990), 208 Ill. App. 3d 440, 567 N.E.2d 352.) Furthermore, an attorney has an obligation to promptly dismiss a lawsuit once it becomes evident that it is baseless. In re Custody of Caruso (1989), 185 Ill. App. 3d 739, 744, 542 N.E.2d 375.

In this appeal, Leslie contends its fees should have been allowed because SRA’s complaint was not well-grounded in fact or warranted by existing law but instead was interposed “to harass Leslie and its owner, Rosengarden, into paying the disputed SRA bill.” Leslie claims it is undisputed that the check at issue was conditionally tendered, and SRA either knew or should have known the inescapable legal consequences which resulted when it accepted the check and retained its proceeds: namely, that it constituted an accord and satisfaction. Thus, according to Leslie, there was “irrefutable evidence” that SRA’s claim was barred. SRA, on the other hand, maintains that its claim was a reasonable attempt to collect an unpaid bill, and that it reasonably believed the facts in this case failed to establish a valid accord and satisfaction.

As SRA correctly observes, a claimant is not required to anticipate defenses to its claim or withdraw an action the moment a defense is interposed in order to avoid the imposition of sanctions. Rule 137 was not intended to penalize litigants and their attorneys simply because they were not successful in litigation. Couri v. Korn (1990), 202 Ill. App. 3d 848, 857, 560 N.E.2d 379.

The determination of whether to grant sanctions under the rule is entrusted to the sound discretion of the trial court, whose decision will not be disturbed absent an abuse of that discretion. (Singer, 217 Ill. App. 3d at 879.) The record reveals no such abuse in the case at bar.

Leslie does not appear to argue here that SRA’s claim was based upon unsupported allegations of fact. Neither party has disputed that Leslie tendered a check containing a restrictive endorsement or that SRA’s secretary signed and deposited the check without informing SRA’s attorneys of this restriction. Indeed, as this court observed in its opinion disposing of Leslie’s prior appeal, “the parties essentially agree as to what happened in the case; the controversy centers on what legal effect flows from the actions of the parties.” (Shea, 216 Ill. App. 3d at 71.) Leslie’s argument centers around the question of whether, based upon the known facts, SRA’s action was well-grounded in law.

It is true that this court found SRA’s action barred as a matter of law under the doctrine of accord and satisfaction when we addressed Leslie’s prior appeal; however, a filing need not ultimately prevail in order to be warranted by existing law. (See Davis v. Chicago Housing Authority (1988), 176 Ill. App. 3d 976, 531 N.E.2d 1018; Allcare, Inc. v. Bork (1988), 176 Ill. App. 3d 993, 531 N.E.2d 1033.) In order to escape sanctions under Rule 137, pleaders need not be correct in their view of the law; they need only present an objectively reasonable argument for their views. Rule 137 is intended to provide a sanction when a party or an attorney asserts a proposition of law which is contrary to established precedent. However, it was not intended as a vehicle to punish those who might misapply the law. See International Amphitheater Co. v. Vanguard Underwriters Insurance Co. (1988), 177 Ill. App. 3d 555, 532 N.E.2d 493; Frisch Contracting Service Co. v. Personnel Protection, Inc. (1987), 158 Ill. App. 3d 218, 511 N.E.2d 831.

SRA opposed Leslie’s theory of accord and satisfaction based in part upon the argument that it never intended to accept Leslie’s check in full satisfaction of the amounts due. This theory is not without recognition at law. (See Amoco Oil Co. v. Segall (1983), 118 Ill. App. 3d 1002, 455 N.E.2d 876.) We disagreed with SRA’s application of the law to the facts of this case, but that does not mean that the position taken by SRA was frivolous or unreasonable so as to render it sanctionable under Rule 137. The fact that the trial judge twice refused to grant Leslie the relief that this court ultimately granted provides significant evidence that SRA’s legal position in this case was not frivolous or unreasonable. See Indianapolis Colts v. Mayor & City Council of Baltimore (7th Cir. 1985), 775 F.2d 177, 182.

Leslie also argues that the trial court improperly disallowed the sanctions without granting an evidentiary hearing, at which Leslie would have introduced “additional evidence to show that [SRA] was motivated by an improper purpose in filing and maintaining the action.” This argument fails for three reasons. First, Leslie alleged nothing about such additional evidence in its motion for fees. Second, the record indicates that the trial court did entertain arguments over the sanction motion. And third, contrary to Leslie’s argument, an evidentiary hearing is not always required under Rule 137. If it is apparent from the record as a whole that sanctions under Rule 137 are not warranted, no evidentiary hearing is required in order to support a denial of relief. See In re Application of Cook County Collector (1986), 144 Ill. App. 3d 604, 472 N.E.2d 170.

Finally, although it is true that Rule 137 requires a judge to specifically set forth the reasons and basis for any sanction imposed, there is no specificity requirement when sanctions are denied. (134 Ill. 2d R. 137.) We believe it to be sufficient for the trial court to deny the requested relief upon a finding that no frivolous pleadings were filed, as was done in this case.

For these reasons, we find that the trial court did not abuse its discretion in denying Leslie’s request for relief under Rule 137.

Affirmed.

JIGANTI, P.J., and CAHILL, J., concur.


author: JUSTICE COUSINS

text:
    SEAN KENNAN, Plaintiff-Appellee, v. CHECKER TAXI COMPANY, INC., Defendant-Appellant (Shibli Khalil, Defendant).
    First District (5th Division)
    No. 1 — 91—0961
    Opinion filed July 23, 1993.
    — Rehearing denied August 26, 1993.

      Torshen, Schoenfield & Spreyer, Ltd., of Chicago (Jerome H. Torshen and Abigail K. Spreyer, of counsel), for appellant.
    Brian J. O’Connor III, of Chicago (David A. Novoselsky, of counsel), for appellee.
   JUSTICE COUSINS

delivered the opinion of the court:

Defendant, Checker Taxi Company, Inc. (Checker), appeals from a judgment for compensatory and punitive damages entered in favor of the plaintiff, Sean Kennan. This action arose from an altercation between plaintiff, a blind man, and a Checker cab driver. Plaintiff’s fifth and final amended complaint contained three counts: count I alleged assault and battery; count II alleged wrongful ejectment; and count III sought punitive damages. Prior to the commencement of trial, plaintiff voluntarily dismissed the defendant driver. At the conclusion of the trial, the jury returned a verdict finding Checker liable and awarding plaintiff $120,000 in compensatory damages and $193,000 in punitive damages. Judgment was entered on the verdict.

Checker raises the following issues on appeal: (1) whether the trial court erred in submitting the question of punitive damages to the jury when there was no evidence of corporate complicity by Checker in the driver’s conduct; (2) whether the $120,000 award of compensatory damages was excessive and beyond the range of damages reasonably supported by the proofs; and (3) whether the defendant was denied a fair trial due to the improper conduct of plaintiff’s counsel and/or other trial errors.

We affirm in part and vacate in part.

Background

Plaintiff is blind and relies on his seeing eye dog for assistance. At approximately 8 a.m. on the morning of February 5, 1985, plaintiff was on his way to work. He got off the elevated at Chicago Avenue and proceeded with his guide dog, Ives, to the southwest comer of Chicago and Franklin, where he sought to hail a cab. Plaintiff placed his guide dog on the curb, extended the leash and stepped into the street to wave down a cab. He was not wearing dark glasses or carrying a cane at the time.

While he was standing on the street, a woman passerby offered to help plaintiff hail a cab. Plaintiff accepted her assistance and the woman hailed Checker Cab number 3711. "When the cab stopped, plaintiff opened the door, and summoned his dog, which entered the cab and sat on the backseat behind the driver. Plaintiff then got in and sat next to the dog.

After plaintiff told the driver his destination, the driver began screaming over and over, “get out, I no take bitch.” Plaintiff then heard the rear door open and he moved his hand over Ives to protect him. When plaintiff felt the driver’s hand touch the back of his hand and the back of Ives’ head, he pushed the driver away from his dog. At this point plaintiff either got himself out of the cab or was pulled out of the cab by the driver. The driver slammed plaintiff against the side of the cab and hit him in the head and the face several times.

Ellen Karp, who was waiting at the bus stop, observed the altercation and stepped into the street between plaintiff and the driver. She said to the driver, “Are you an idiot? Can’t you tell the guy is blind?” The driver stopped scuffling with the plaintiff and responded, “No, I couldn’t tell he was blind, but look what the dog did to may [sic] car.” Ms. Karp testified that she saw nothing wrong with the cab.

At this point, an unidentified woman escorted plaintiff and the dog away from the cab, hailed another cab and helped plaintiff get inside it. The Checker driver got back in his cab and drove away.

Plaintiff proceeded to work without further incident. Upon arriving at work, plaintiff did not relate the incident to anyone or call the police. Plaintiff sustained painful bruises on his face and head due to the altercation with the cab driver, but he did not seek medical attention for the bruises and he did not lose time from work due to the incident. Plaintiff testified that the pain from the bruises lasted for several days.

Later that day, plaintiff telephoned Dr. Janice Swope, the psychiatrist he had been seeing since 1980, and related the incident. Dr. Swope did not prescribe any medication for plaintiff as a result of the incident. During the month after the occurrence, he did not see her any more often than he had prior to the occurrence.

On the day of the occurrence, Rebecca Smith, who was a witness to the altercation, called Checker, the city department of consumer services, and the city licensing division to report the incident. Ms. Karp also called Checker, and at Checker’s suggestion, called the city where she was transferred to the corporation counsel’s office.

Within a day or two of the incident, an investigator from Checker visited plaintiff at his home and made a written report of plaintiff’s account. A sighted friend of plaintiff’s was present and read the report to him before he signed it.

Plaintiff testified that since the incident, he was frightened in most transportation situations; if he had to use a cab, he didn’t know whether there would be a similar occurrence and he was concerned about how distressed and upset he might appear when he reached his destination. Thus, plaintiff sought to arrange his commuting schedule in a manner which allowed him to use the bus and elevated system and to avoid taking cabs.

Dr. Swope testified that plaintiff telephoned her on the day of the occurrence, that she and plaintiff dealt with the incident in every session for a number of sessions and that it continued to be part of their ongoing discussions. It was her opinion that plaintiff’s condition prior to February 5, 1985, made him susceptible to a heightened emotional injury as a result of the cab incident on February 5, 1985. In her opinion, as a result of the incident, plaintiff suffered from post-traumatic stress disorder. She explained that he continued to view cabs as potentially traumatic, anxiety-provoking, humiliating events. It was her opinion that his condition would probably continue in the future to some extent but she could not say for how long.

At the conclusion of the trial, the jury returned a verdict finding Checker liable and awarding plaintiff $120,000 in compensatory damages and $193,000 in punitive damages. Judgment was entered on the verdict, and Checker’s post-trial motion was denied. This appeal followed.

Opinion

I

Checker first contends that the trial court erred in submitting the question of punitive damages to the jury because plaintiff failed to present any evidence of corporate complicity by Checker in the driver’s conduct. In other words, Checker argues that the trial court should have directed the verdict for Checker at the close of the evidence because plaintiff failed to prove an element of his case.

Plaintiff maintains that Checker has waived this argument because it did not raise the corporate complicity issue until the post-trial motion. We disagree. Although Checker did not move for a directed verdict based upon this argument, Checker did make a post-trial motion for judgment n.o.v. on this basis. Checker’s failure to move for a directed verdict on the ground that plaintiff failed to prove an element of his case did not preclude Checker from seeking judgment n.o.v. in a post-trial motion on the same ground. Section 2 — 1202 of the Code of Civil Procedure sets forth the relief available via a post-trial motion and provides in relevant part:

“Relief after trial may include the entry of judgment if under the evidence in the case it would have been the duty of the court to direct a verdict without submitting the case to the jury even though no motion for directed verdict was made or if it was denied or ruling thereon reserved.” Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1202(b).

A post-trial motion for judgment n.o.v. is an appropriate vehicle to challenge the plaintiff’s failure to prove an element of his case. (See Quad County Distributing Co. v. Burroughs Corp. (1979), 68 Ill. App. 3d 163, 166-67.) We conclude that Checker has not waived the right to challenge plaintiff’s alleged failure to prove the necessary elements of a claim for punitive damages.

The standard for reviewing the refusal to direct a verdict or grant judgment n.o.v. is well settled. (See Knight v. Haydary (1992), 223 Ill. App. 3d 564, 569, appeal denied (1992), 145 Ill. 2d 635.) Verdicts should be directed and judgments n.o.v. entered only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (See Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) Keeping this standard in mind, we turn now to the merits of Checker’s argument.

It is well settled that punitive damages may be awarded when torts are committed with “fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others.” (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 186.) Punitive damages are not awarded as compensation, but serve instead to punish the offender and to deter that party and others from committing similar acts of wrongdoing in the future. (Loitz v. Remington Arms Co. (1990), 138 Ill. 2d 404.) Certainly, there was evidence presented at trial which tended to show that the Checker driver acted willfully and wantonly when he assaulted and battered the plaintiff. However, the driver was dismissed from the case prior to trial; plaintiff sought to hold Checker liable solely on the theory of respondeat superior.

When the liability of a corporate defendant is predicated upon a theory of respondeat superior, the imposition of punitive damages is narrowly circumscribed. (See Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31.) In Mattyasovszky, the Illinois Supreme Court stated:

“[T]he punitive and admonitory justifications for the imposition of punitive damages are sharply diminished in those cases in which liability is imposed vicariously. [Citations.] With respect to this problem, section 217C of the Restatement (Second) of Agency (1958) states:
‘Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if:
(a) the principal authorized the doing and the manner of the act, or
(b) the agent was unfit and principal was reckless in employing him, or
(c) the agent was employed in a managerial capacity and was acting in the scope of his employment, or
(d) the principal or a managerial agent of the principal ratified or approved the act.’ ” (Mattyasovszky, 61 Ill. 2d at 36-37.)

The principles set forth in Mattyasovszky have been repeatedly applied by our courts of review. See, e.g., Deal v. Byford (1989), 127 Ill. 2d 192; Kemner v. Monsanto Co. (1991), 217 Ill. App. 3d 188; Lohrenz v. Country Mutual Insurance Co. (1989), 189 Ill. App. 3d 810; Riley v. Fair & Co. Realtors (1986), 150 Ill. App. 3d 597; Pendowski v. Patent Scaffolding Co. (1980), 89 Ill. App. 3d 484; Oakview New Lennox School District No. 122 v. Ford Motor Co. (1978), 61 Ill. App. 3d 194; Samuels v. Checker Taxi Co. (1978), 65 Ill. App. 3d 63; Tolle v. Interstate Systems Truck Lines, Inc. (1976), 42 Ill. App. 3d 771.

The rationale for requiring the plaintiff to show complicity on the part of the principal before punitive damages may be awarded against the principal was aptly explained in Tolle:

“The complicity rule *** seems consistent with the rationale behind the concept of punitive damages. Either as a basis for punishment or for deterrence of wrongdoers, some deliberate corporate participation should be shown before this sanction is applied. [Citation.] The complicity analysis will allow punitive damages where the institutional conscience of the corporate master should be aroused while protecting the corporate master from liability for punitive damages when a properly supervised employee acts with requisite circumstances of aggravation. [Citation.]” Tolle, 42 Ill. App. 3d at 773-74.

Plaintiff concedes that Illinois law requires a showing of complicity before punitive damages will be awarded against a corporate defendant charged solely with vicarious liability, but argues that an exception exists for common carriers. Plaintiff relies on several early cases from the Illinois Supreme Court which allowed punitive damages to be awarded against common carriers on the basis of the willful and wanton conduct of the conductors employed by the carriers. (Chicago Consolidated Traction Co. v. Mahoney (1907), 230 Ill. 562; Chicago Union Traction Co. v. Brethauer (1906), 223 Ill. 521; Illinois Central R.R. Co. v. Davenport (1898), 177 Ill. 110; Chicago, Burlington & Quincy R.R. Co. v. Bryan (1878), 90 Ill. 126.) Although these cases arguably support the proposition that punitive damages may be available against a common carrier charged with vicarious liability, these cases are not in accord with the current state of the law in Illinois. See Mattyasovszky, 61 Ill. 2d 31.

Mattyasovszky, the first case in which our supreme court approved the complicity rule, involved a common carrier. The court’s awareness that the defendant was a common carrier is underscored by the following statement from the opinion:

“Serious questions inevitably arise in a case like the present, in which the driver of the bus, whose conduct was primarily responsible for the injury, is no longer a party defendant because he was dismissed by the plaintiff before the case went to the jury.” (Emphasis added.) (Mattyasovszky, 61 Ill. 2d at 37.)

Nothing in the Mattyasovszky opinion suggests that a different rule should apply when the “master or other principal” is a common carrier. We conclude that Illinois law does not recognize a common carrier exception to the corporate complicity doctrine.

Plaintiff was not entitled to recover punitive damages against Checker unless he presented sufficient evidence to demonstrate the existence of one of the elements of corporate complicity set forth in Mattyasovszky: (a) Checker authorized the doing and the manner of the act, or (b) the cab driver was unfit and Checker was reckless in employing him, or (c) the cab driver was employed in a managerial capacity and was acting in the scope of his employment, or (d) Checker or a managerial agent of Checker ratified or approved the act. (Mattyasovszky, 61 Ill. 2d at 36-37.) Plaintiff maintains that the offer of proof he made at trial contained evidence which would show that Checker authorized the actions of the cab driver which caused plaintiff’s injury.

Plaintiff sought to present evidence which would establish the following: (1) Checker received a memorandum from the City of Chicago advising cab companies of their legal duty to transport blind persons; (2) prior to February 5, 1985, plaintiff was a regular user of taxis and he had made several complaints to Checker about the refusal of Checker to pick him up; and (3) other blind persons had been refused transportation by Checker taxis. When this evidence is viewed in the light most favorable to the plaintiff, it demonstrates only that Checker may have been aware of the fact that some cab drivers refused to transport blind persons. However, plaintiff’s injuries were not caused by a driver refusing to transport him. Plaintiff’s injuries were caused by the driver forcibly ejecting him from the cab and/or assaulting and battering him. The evidence does not establish that Checker knew of or authorized cab drivers to forcibly eject or assault and batter their customers. Thus, this evidence is not probative of the authorization element of corporate complicity set forth in Matty asovszky.

Plaintiff next argues that Checker ratified the acts of its driver by defending this lawsuit and the actions of its driver. In support of his contention, plaintiff cites Robinson v. Wieboldt Stores, Inc. (1982), 104 Ill. App. 3d 1021. Robinson is distinguishable, however. In Robinson, the plaintiff alleged that she had been falsely imprisoned by a store security guard. Prior to bringing suit, plaintiff sent a written complaint to the store manager but received no response. In addition, the trial court found that the defendant had not only defended the actions of its agent, but also had shown no attempt to alter its procedures in regard to situations like the one the plaintiff encountered. (Robinson, 104 Ill. App. 3d at 1025.) In light of these facts the trial court held that defendant had ratified the conduct of its agent. Robinson, 104 Ill. App. 3d at 1025.

Unlike the defendant in Robinson, Checker did not ignore plaintiff’s complaint. Within a day or two of the incident an investigator from Checker visited plaintiff at his home and made a written report of plaintiff’s account. Moreover, the evidence demonstrated that Checker’s president responded to the report of the driver’s conduct by directing that he was not to be given another lease. The parties stipulated that the cab driver was no longer associated with Checker. Checker did not ratify the actions of its driver simply by defending this lawsuit.

In order to recover punitive damages under Illinois law, plaintiff must plead and prove the existence of at least one of the elements of corporate complicity set forth in Mattyasovszky. In the instant case, there was no evidence that (a) Checker authorized the doing and the manner of the act complained of in plaintiff’s complaint, or (b) that the driver was unfit for his position and Checker was reckless in permitting him to drive a Checker taxicab, or (c) that the driver was employed in a managerial capacity and was acting in the scope of his employment, or (d) that Checker or a managerial agent of Checker ratified or approved the act. The verdict should have been directed for the defendant on the punitive damages count because the plaintiff failed to prove an essential element of his claim. Nonetheless, the trial court ruled that the issue of punitive damages should go to the jury based solely upon evidence of willful and wanton conduct on the part of the driver and instructed the jury accordingly. The trial court’s submission of the question of punitive damages to the jury was contrary to the law of this State as set forth in Mattyasovszky and its progeny. Accordingly, we hold that the portion of the verdict which awarded punitive damages to the plaintiff must be set aside.

II

Checker next contends that the jury’s award of $120,000 in compensatory damages was excessive and unsupported by the evidence. We disagree.

The propriety of the amount of damages to be awarded for personal injuries is peculiarly a question of fact for the jury. (Carter v. Indiana Harbor Belt R.R. Co. (1989), 190 Ill. App. 3d 1052, 1059.) A reviewing court will not substitute its judgment for that of the jury as to the sum to be awarded unless the total amount of the verdict falls outside the limits of fair and reasonable compensation, or results from passion or prejudice, or is so large as to shock the judicial conscience. Carter, 190 Ill. App. 3d at 1059.

When assessing damages in an assault and battery case, the jury may properly consider and allow compensation for the pain and suffering incurred by the plaintiff as a result of the blows inflicted, and for the humiliation, indignity, and vexation suffered by the plaintiff as a result of his assailant’s conduct. (Chicago & Alton Ry. Co. v. Tracey (1903), 109 Ill. App. 563.) In the instant case, the evidence adduced at trial indicated that the plaintiff was a blind man who relied upon a seeing eye dog for assistance. Although plaintiff became blind approximately nine years prior to the incident, he was still experiencing difficulty in adjusting to his blindness. This difficulty caused plaintiff to be in an emotionally vulnerable state. Plaintiff did nothing to provoke the attack of the cab driver; he was a completely defenseless victim. Plaintiff was beaten about the head and face and sustained painful bruises which lasted for several days. He suffered the humiliation of being assaulted and beaten in a public place in broad daylight. Plaintiff’s psychiatrist testified that plaintiff continued to be traumatized by the experience and his fear that a similar attack could occur at any time. Finally, plaintiff’s fear of cab drivers has forced him to modify his method of commuting in order to avoid cabs. On these facts we cannot say that the award of damages was unreasonable or shocking to the judicial conscience. Accordingly, we hold that the compensatory damages were not excessive.

Ill

Checker’s final contention is that the improper conduct of plaintiff’s counsel by itself or in combination with other trial errors deprived Checker of a fair trial.

Checker raises the following allegations of error: (1) plaintiff’s counsel improperly attempted to indoctrinate the jury about this being a “personal” case; (2) plaintiff’s counsel improperly sought to appeal to the sympathies of the jurors; (3) plaintiff’s counsel improperly commented on the absence of a witness equally within the parties’ control during rebuttal; and (4) plaintiff’s counsel improperly exceeded the bounds of proper rebuttal argument. We have carefully examined the record concerning these allegations of error and we find the contentions concerning them to be without merit or, in cases where there is substance to the contention, the error was not prejudicial.

Checker was not entitled to an error-free trial, only a fair trial. (Lawson v. G.D. Searle & Co. (1976), 64 Ill. 2d 543, 559.) “ ‘Where it appears that an error did not affect the outcome below, or where the court can see from the entire record that no injury has been done, the judgment or decree will not be disturbed.’ ” (Lawson, 64 Ill. 2d at 559, quoting Both v. Nelson (1964), 31 Ill. 2d 511, 514.) The evidence of liability in this case was overwhelming and mostly undisputed. Viewed in its entirety, the trial was fair and none of Checker’s allegations of error merit reversal of the verdict.

In summary, we hold that the trial court erroneously submitted the issue of punitive damages to the jury, and, therefore, that portion of the verdict must be set aside. The award of compensatory damages was not excessive and will stand. Finally, defendant was not deprived of a fair trial. The judgment of the trial court is affirmed in part and vacated in part.

Affirmed in part and vacated in part.

GORDON, P.J., and McNULTY, J., concur.


author: JUSTICE McNULTY

text:
    DANIEL F. McCarthy, Plaintiff-Appellee, v. PEDERSEN AND HOUPT et al., Defendants-Appellants.
    First District (5th Division)
    No. 1 — 92—3250
    Opinion filed July 23, 1993.
    Ross & Hardies, of Chicago (Gary L. Starkman and Steven B. Rissman, of counsel), for appellants.
    David K. Anderson, of Skokie (Phil Horn, of counsel), for appellee.
   JUSTICE McNULTY

delivered the opinion of the court:

Defendants Pedersen & Houpt, Arthur M. Holtzman and Donald J. Moran appeal from the denial of their summary judgment motion in this legal malpractice suit filed against them by plaintiff Daniel F. McCarthy. The circuit court certified for appeal the issue of “whether the settlement of a lawsuit by a plaintiff, in the undisputed facts and circumstances of this case, precludes a subsequent complaint against his trial counsel for attorney malpractice.”

The relevant facts are as follows. In 1985, defendants filed McCarthy v. PaineWebber, Inc., 85 — C—3328, asserting commercial litigation claims on plaintiff’s behalf in the United States District Court for the Northern District of Illinois. The case went to trial in 1989, and after the close of evidence, but before the jury returned its verdict, plaintiff agreed to settle the case. After plaintiff had an independent attorney, not associated with the defendant law firm, review the settlement agreement, the settlement agreement and mutual general release were executed.

Plaintiff then brought suit in the circuit court of Cook County asserting attorney malpractice against the defendants, the attorneys who represented plaintiff in the underlying lawsuit. The complaint alleged that the attorneys failed to file a timely claim under the Commodities Exchange Act and negligently selected an unqualified expert. Defendants filed a summary judgment motion asserting that plaintiff’s voluntary decision to settle the underlying case, particularly in light of the intervention of independent counsel, precluded the instant attorney malpractice claim. The circuit court denied the motion, stating that it could not determine as a matter of law that plaintiff’s suit was barred. However, due to the fact that there was no Illinois case law addressing the issue of whether a plaintiff who settles an underlying claim may then sue the attorney who represented him in that claim for malpractice, the circuit court certified the question for appeal under Supreme Court Rule 308(a) (134 Ill. 2d R. 308(a)).

As the circuit court correctly noted, the issue that has been certified is one of first impression in Illinois. We therefore look for guidance outside of Illinois. As defendants point out, several other jurisdictions have held that the settlement of the underlying suit bars a plaintiff’s malpractice action against the attorney who handled the underlying claim.

In Mitchell v. Transamerica Insurance Co. (Ky. Ct. App. 1977), 551 S.W.2d 586, plaintiffs brought a malpractice suit against their attorney, alleging that the attorney allowed the statute of limitations to run on plaintiffs’ personal injury suit. The court of appeals of Kentucky found that because plaintiffs were able to bring the same cause of action in another jurisdiction that had a longer statute of limitations, and ultimately received a substantial settlement there, plaintiffs failed to prove they suffered any damages as a result of the attorney’s malpractice. The court explained:

“The [plaintiffs] argue that they could have received more damages if the case had been tried in Kentucky. However, the evidence, in our opinion, on this point is a matter of conjecture and speculation. It may have been a different case if the [plaintiffs] had tried their case in Indiana and had come away with patently inadequate damages. The fact is that they settled their case for $60,000. *** It seems to us that the [plaintiffs’] argument as to damages is an exercise in the pyramiding of an inference upon an inference. Trying to predict what a jury might do at any given time or place is hazardous and is one of the vagaries of life.” Mitchell, 551 S.W.2d at 588.

See also Douglas v. Parks (N.C. Ct. App. 1984), 315 S.E.2d 84 (wherein the North Carolina Court of Appeals held that because plaintiff affirmed the settlement agreement, he was precluded from bringing a malpractice suit against the attorney who represented him in that original action); Glenna v. Sullivan (Minn. 1976), 245 N.W.2d 869 (wherein the supreme court of Minnesota held that, “[t]o allow a client who becomes dissatisfied with a settlement to recover against [an] attorney solely on [the] ground that [a] jury might have awarded more than the settlement is unprecedented”); Davenport v. Stone (Fla. Dist. Ct. App. 1988), 528 So. 2d 45 (wherein the court of appeals of Florida held that plaintiff could not maintain a lawsuit for attorney malpractice since plaintiff voluntarily entered into a settlement agreement in the underlying suit, was fully advised by competent counsel and suffered no damages).

In Schlomer v. Perina (1991), 163 Wis. 2d 708, 473 N.W.2d 6, the court of appeals of Wisconsin determined that it was against public policy to allow the plaintiff to bring suit against his attorney for malpractice on the theory that the attorney’s three years’ inactivity caused a lesser settlement and caused the client loss of use of money from an earlier and larger settlement. To allow such a claim, the court stated, would open the door to malpractice claims whereby there is no just or sensible stopping point.

The plaintiff here, in turn, claims that the Illinois Supreme Court decision in McLane v. Russell (1989), 131 Ill. 2d 509, 546 N.E.2d 499, is directly on point and resolves this issue in favor of plaintiff. We fail to see how this case has any bearing on the issue of whether a plaintiff who settled his underlying case may then sue the attorney who represented him in that underlying suit for malpractice. Although plaintiff has cited no other cases to support his position, our research has revealed several cases from outside this jurisdiction that have held that a plaintiff may sue his attorney for malpractice despite the fact that plaintiff signed a settlement agreement in the underlying suit.

Several New York cases addressing this issue have found that where a plaintiff alleges that he was forced to settle the underlying case due to his attorney’s mishandling of that case, plaintiff may sue his attorney for malpractice. In Becker v. Julien, Blitz & Schlesinger, P C (1977), 95 Misc. 2d 64, 406 N.Y.S.2d 412, modified on other grounds (1978), 66 A.D.2d 674, 411 N.Y.S.2d 17, the court stated:

“In many, if not most instances involving an alleged malpractice by attorneys, the underlying litigation has been terminated — by allowing the Statute of Limitations to lapse, by suffering a default or dismissal and the like. Often it is the very fact of termination of the action which gives rise to the claim for malpractice. Where the termination is by settlement rather than by a dismissal or adverse judgment, malpractice by the attorney is more difficult to establish, but a cause of action can be made out if it is shown that assent by the client to the settlement was compelled because prior misfeasance or nonfeasance by the attorneys left no other recourse. *** [T]he cause of action for legal malpractice must stand or fall on its own merits, with no automatic waiver of a plaintiffs right to sue for malpractice merely because plaintiff had voluntarily agreed to enter into a stipulation of settlement." (Emphasis added.) (Becker, 95 Misc. 2d at_, 406 N.Y.S.2d at 413-14.)

However, based on the particular facts in that case, the court granted summary judgment in favor of the defendant attorneys since plaintiff did not show that he settled only because his attorney’s misconduct left him no other alternative. Furthermore, the court noted that plaintiff failed to provide any evidence that the value of his underlying claim exceeded that which he settled for.

The courts in Wolstencroft v. Sassower (1986), 124 A.D.2d 582, 507 N.Y.S.2d 728, and Cohen v. Lipsig (1983), 92 A.D.2d 536, 459 N.Y.S.2d 98, did find the plaintiffs’ legal malpractice claims to be viable despite the settlement of the underlying suits. Both decisions were based on the fact that the complaints alleged that the settlements were effectively compelled by the mistakes of the defendants, plaintiffs’ former attorneys. But see N.A. Kerson Co. v. Shayne, Dachs, Weiss, Kolbrenner, Levy & Moe Levine (1977), 59 A.D.2d 551, 397 N.Y.S.2d 142 (wherein the court held that an action based upon alleged mistakes of counsel prior to settlement could not be brought since plaintiff’s settlement terminated the underlying litigation); Carmel v. Lunney (1986), 119 A.D.2d 50, 505 N.Y.S.2d 735 (wherein plaintiff brought suit against his criminal defense lawyer for malpractice after plaintiff had voluntarily pled guilty to the criminal charges and the court found that any causal connection between the attorney’s malpractice and plaintiff’s conviction was broken by plaintiff’s own voluntary act resulting in conviction).

Jurisdictions other than New York have also refused to state that, as a matter of law, a plaintiff who has settled his underlying case is barred from suing his attorney for malpractice. In Lowman v. Karp (1991), 190 Mich. App. 448, 476 N.W.2d 428, plaintiff claimed that after she informed defendant that she did not want to settle, defendant flatly refused to try the case. The court of appeals of Michigan concluded that plaintiff’s settlement of the underlying action should not act as a bar to a subsequent legal malpractice action since the matter arose so close to the trial date that it would have been nearly impossible for plaintiff to obtain another attorney and plaintiff’s settlement was therefore her only reasonable choice. See also Espinoza v. Thomas (1991), 189 Mich. App. 110, 472 N.W.2d 16 (wherein the Michigan Court of Appeals held that the pleadings and evidence were sufficient to at least raise an inference that the low settlement award and plaintiff’s acceptance of the award were caused by defendant’s malpractice).

In Braud v. New England Insurance Co. (La. Ct. App. 1988), 534 So. 2d 13, plaintiffs claimed that as a result of the attorney’s negligence, they were forced to settle the case for less than it was worth. Defendant moved for summary judgment stating that it was plaintiffs’ settlement with the defendant in the underlying suit that caused the loss and not the attorney’s negligence. The Louisiana Court of Appeals noted that if the attorney’s negligence caused plaintiffs to settle the suit, then it also caused the loss. The court stated:

“It begs the question to argue that the settlement rather than the attorney’s negligence caused the loss when the same negligence is allegedly the only reason that the [plaintiffs] were put in the position of having to consider settlement.” (534 So. 2d at 15.)

The court, therefore, reversed the summary judgment motion that had been granted in defendant’s favor, stating that only a trial on the merits could fully and fairly resolve this issue.

Furthermore, in Bill Branch Chevrolet, Inc. v. Burnett (Fla. Dist. Ct. App. 1990), 555 So. 2d 455, plaintiff sued for malpractice claiming that, three weeks before trial, it discovered that the attorney failed to investigate or conduct discovery necessary to adequately prepare for trial and, faced with a claim for punitive damages and no trial preparation, plaintiff was forced to settle the case for a sum greater than its actual liability. The court of appeals of Florida could not determine as a matter of law that the settlement of the underlying case negated any legal malpractice as a proximate cause of loss and also concluded that the question of whether plaintiff can prove damages beyond speculation is an issue for the trier of fact.

Likewise, in Fishman v. Brooks (1986), 396 Mass. 643, 487 N.E.2d 1377, the plaintiff claimed that he settled the underlying case shortly before trial knowing that the attorney was not prepared to try the case. The supreme court of Massachusetts noted that, “The typical case of malpractice liability for an inadequate settlement involves an attorney who, having failed to prepare his case properly or lacking the ability to handle the case through trial (or both), causes his client to accept a settlement not reasonable in the circumstances.” (Fishman, 396 Mass. at 646, 487 N.E.2d at 1380.) The court therefore upheld a jury verdict finding the attorney liable for negligently causing a client to settle a claim for an amount below what a properly represented client would have accepted.

Other courts allow such suits to survive the summary judgment stage only when the plaintiffs can show that they would have recovered more had the case gone to trial. See Carlson v. Fredrikson & Byron (Minn. Ct. App. 1991), 475 N.W.2d 882 (court of appeals of Minnesota found that summary judgment was properly granted in favor of defendants where plaintiff failed to show that had defendants more vigorously represented him, he would have received a better settlement or the case would have gone to trial and he would have received a more favorable result there); Sander v. Townsend (Ind. Ct. App. 1987), 509 N.E.2d 860 (the court of appeals of Indiana determined that summary judgment was properly granted in attorney’s favor since plaintiff failed tú show that had the attorney not been negligent, the settlement or verdict award would have been greater).

At least one court allows plaintiffs to sue their attorneys for malpractice even after settling the underlying suit only when the complaint alleges that the attorneys acted fraudulently. The Pennsylvania Supreme Court in Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick (Pa. 1991), 587 A.2d 1346, concluded that when a plaintiff has agreed to a settlement, he may not sue his attorney for malpractice based on negligence and or contract principles. Rather, only cases of fraud should be actionable. The court explained that if a lawyer knowingly commits malpractice, but does not disclose the error and convinces the client to settle in order to avoid the discovery of such error, then the plaintiff’s agreement was fraudulently obtained. The court reached this decision because of its long-standing public policy encouraging settlement.

The supreme court of New Jersey in Ziegelheim v. Apollo (1992), 128 N.J. 250, 607 A.2d 1298, expressly disagreed with the Pennsylvania decision, stating that although New Jersey also has a long-standing policy that encourages settlement, a dissatisfied plaintiff may bring suit against his attorney for malpractice in negotiating a settlement even in the absence of a showing of actual fraud.

We are faced with the limited question of whether, under the undisputed facts and circumstances of this case, plaintiff’s legal malpractice case is barred due to the fact that plaintiff settled the underlying action. The undisputed facts in the instant case are that the underlying suit was settled and independent counsel reviewed the settlement agreement before it was signed by plaintiff. What remains disputed, however, is whether defendants were negligent in their handling of the underlying case and whether plaintiff was damaged by such negligence. Furthermore, the parties dispute the extent of independent counsel’s involvement in the settlement. Certainly plaintiff should be permitted to develop these facts at trial. Although there is no Illinois case law on this issue, we are persuaded by those cases from outside this jurisdiction holding that only a trial on the merits can fully and fairly resolve the issue of whether an attorney is liable for malpractice despite the fact that the underlying case was settled. To hold otherwise could create ethical problems where an attorney, knowing that he mishandled a case, encourages his client to settle in order to shelter himself from a malpractice claim. The rule espoused here will avoid such conflicts of interest and allow a malpractice claim to succeed or fail on its merits. Accordingly, we conclude that based on the facts and circumstances presented here, the trial court properly refused to grant summary judgment in favor of defendants.

Affirmed.

GORDON, RJ., and MURRAY, J., concur.