author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AUREL PETRUSEL, Defendant-Appellant.
    First District (1st Division)
    No. 1—90—0840
    Opinion filed November 23, 1992.

      Rita A. Fry, Public Defender, of Chicago (James S. Jacobs, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Linda Woloshin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Following a jury trial, defendant Aurel Petrusel was convicted of the shooting murder of Ionel Busta and sentenced to 20 years’ imprisonment. (See Ill. Rev. Stat. 1985, ch. 38, par. 9—1(a).) Defendant appeals his conviction and sentence, alleging: (1) the State failed to prove beyond a reasonable doubt that he committed first degree murder; rather, the evidence only proved voluntary manslaughter; and (2) prosecutorial misstatements of law and fact during closing argument denied him a fair trial. We affirm.

Caliopa Mundean testified for the State that she was a 28-year-old Rumanian-born United States resident. On February 21, 1987, at about 8 p.m., she and her husband arrived at the community center of St. Mary’s Rumanian Orthodox Church at 4225 North Central in Chicago to watch Rumanian dancers.

At 9:30 p.m. that evening, she met with defendant and his wife, whom Mundean knew from prior functions. Mundean went to the Petrusels’ table, where she conversed with Mrs. Petrusel about their children. Defendant and Mundean danced, returning to the Petrusels’ table when they finished.

After being seated, now about 10:10 p.m., defendant told Mun-dean to look under the table. Mundean thought defendant was joking around. Defendant then put a gun on the table. Defendant told Mun-dean that the gun was real, and defendant’s wife confirmed this fact when Mundean inquired about the matter. Defendant then mentioned that “some brains will fly tonight.” Defendant did not make reference to any particular person. Mundean thought defendant was joking, and she mentioned to defendant that he should go shoot her brother-in-law, who was causing problems in Mundean’s marriage. Although Mundean really believed that her brother-in-law deserved to be killed, Mundean was just joking about killing him. She could never do that.

When the police arrived later that night, Mundean told them nothing about her conversations with defendant. She did not witness the shooting. On March 11, 1987, Mundean went and told the police about her conversation with defendant.

Aurel Dragoi testified that he was a 38-year-old United States resident of Rumanian nationality. On February 21, 1987, he was president of the St. Mary’s Rumanian Orthodox Church Council. That evening, a group of Rumanian singers came to Chicago to perform for Chicago’s Rumanian community. The event was held at the church’s cultural center at 4225 North Central in Chicago. The event began around 7:30 p.m.; approximately 250 to 300 people attended.

At about 11 p.m. that evening, Dragoi saw defendant and Ionel Busta, the victim, arguing in the bar. Dragoi could not hear what they were arguing about because of the noise. Dragoi separated the two and told each to go to his table. The two complied. Dragoi observed neither individual strike the other or attempt such a strike.

Dragoi then accepted Busta’s invitation to go have a drink at his table, where four to five others were sitting. Dragoi had known both defendant and Busta for three years prior to the incident. Busta and his brother were working for Dragoi.

After visiting for about 20 minutes, Dragoi observed defendant approaching the table, whereupon Busta stood up, and the two began arguing again. Dragoi could not hear the content of the argument. He then told defendant to leave and Busta to sit down. Dragoi observed neither man strike the other or attempt such a strike.

Dragoi next went to the parish office to get a monthly bulletin. The office was located within the same building. When Dragoi returned between 5 to 15 minutes later, now about 11:50 p.m., he saw defendant and Busta arguing again in the foyer of the church hall. Because of the noise and music, Dragoi again could not hear the subject of the argument.

Defendant’s wife then approached the two men. The three were talking about something but Dragoi could not hear. About 30 seconds after defendant’s wife arrived, Dragoi observed Busta slap Mrs. Petrusel with an open hand, snapping back her head. He did not see Busta kick Mrs. Petrusel. Dragoi approached the three to stop the argument. As he approached, he observed the Petrusels walking towards Busta while Busta was walking backwards. Busta was facing the Petrusels as he took five to six steps backwards, and his hands were moving. Dragoi heard swearing in Rumanian as he approached closer.

Dragoi arrived to where the three were arguing and attempted to break them apart. The three were only a few feet apart. Before he had the chance, defendant pulled out a gun from his right pants pocket, put it six to seven inches away from Busta’s head and shot him. Approximately 20 seconds had elapsed between defendant’s wife being slapped and Busta being shot. Defendant turned the gun towards Dragoi, who ducked and heard a second shot. He then ran into the nearby bar room.

Another witness would later testify that someone then kicked defendant’s hand. The gun dropped to the floor. Defendant then attempted to run out the entrance door but was restrained. The victim later died from the gunshot wound to the head.

Detective Poli of the Chicago police department testified that defendant failed to appear on September 26, 1988, for his trial. On May 6, 1989, Poli saw defendant in Vienna, Austria, where he was being jailed for attempting to cross the border into Rumania with a false passport. Detective Poli escorted defendant back to the United States from Vienna.

Marioara Petrusel testified for the defense that she and defendant, now divorced, went as husband and wife on February 21 to the church function. They arrived at about 7:30 to 8 p.m. At about 11 p.m., she was dancing and learned that her husband was having an argument with another man. She stopped dancing and walked to where her husband was located.

When she arrived, she saw him arguing with the victim. Another person was standing between them. She asked defendant what was happening, and defendant responded that the victim wanted to “beat him” and had been following him all night. She then asked the group of men in Rumanian what was going on there. The victim told Mrs. Petrusel to “suck my__” She replied that he could “give it to your mother.” The victim then slapped her in the face, and then kicked her in the knee. She fell to the ground on one knee. Defendant then said to the victim, “[W]hat did you say that to her; is she your bitch?” The victim then said to defendant in Rumanian, “I am going to kill you, mother_.” Defendant was about two feet away from the wall. The victim then went to grab defendant. Defendant backed up toward the wall. Mrs. Petrusel testified that she then closed her eyes and heard two shots. Mrs. Petrusel identified photographs depicting her face and knees showing marks which were not present prior to being struck. She denied seeing defendant’s gun earlier in the evening, and never heard defendant say anything about brains flying.

Defendant testified on his own behalf that he went to the church social with his wife on February 21, 1987. Defendant was carrying a weapon that night. He carried one as a truck driver for safety. That evening, he had recently quit work and changed clothes at home. He took the gun with him to the church function. Defendant did not have a license for the gun.

Defendant was at the bar with another man getting a drink when he heard the victim and other Rumanian men arguing loudly. Defendant knew the victim. Defendant looked over at the group and smiled at the victim. Without explanation, the victim approached defendant, grabbed him by his tie and hit him under his chin on the lower jaw. Defendant froze because he was surprised. Two other men and Aurel Dragoi grabbed the victim. Defendant returned to his table.

About 25 to 30 minutes later, defendant had to visit the men’s room. The victim’s table was located on the way; no other way to the men’s room existed. As defendant passed by, the victim stood up and asked defendant to step outside. Defendant told him to take his “dirty hands off my clean shirt, please.” A man separated the two, and defendant continued to the bathroom.

Defendant exited the men’s room and the victim was waiting for him. Defendant told the victim to leave him alone. Defendant’s wife then approached. She asked defendant in Rumanian what was going on, and defendant responded that he did not know what the victim had against him. Defendant’s wife then asked in Rumanian what was going on or what was the reason for fighting. The victim responded, “What’s up with you, bitch[?]” She again asked what was going on, and the victim responded, “What if your bitch would suck my _[?]” Defendant’s wife responded, “Why don’t you let your mother do that[?]” The victim then slapped defendant’s wife with an open hand across her cheek. He then kicked her in the leg. Defendant was upset and asked the victim why did he treat her like that, “is she your bitch?”

Defendant testified that the victim then “jumped towards me moving his right hand toward his back by his body.” Defendant took one step backward. The victim told defendant, “I’am going to kill you, son of a bitch.” Defendant thought, “that was it, I’m done.” He reached into his pocket for his gun and, without intending to kill but only to scare the victim, pulled the trigger. Defendant testified that because of what the victim had said and done to his wife, and his hand movement, he was in fear of his life and that of his wife. Defendant fired two shots, with the second occurring after he was kicked between the legs. Defendant also claimed the shooting was an accident.

Defendant left the country on September 6, 1988. He was to return for court on September 26, 1988. His return flight bore a September 26, 1988, date, but defendant claimed he could return sooner under the ticket.

Defendant testified that he did not tell the police everything the night of the shooting because he did not understand the laws of the United States and was afraid of the consequences the shooting would have on his wife and children. He had no fear of talking to the Rumanian police.

Defendant denied telling Caliopa Mundean that some brains would fly that night. Defendant claimed that she said that herself in reference to her brother-in-law. Defendant admitted, however, showing her the gun. Defendant’s wife was not present at this time.

Following closing arguments, the jury deliberated and returned seven hours later, finding defendant guilty of murder. Defendant brings this appeal.

Defendant first claims on appeal that the State failed to prove beyond a reasonable doubt that he possessed the requisite mental state for the crime of murder. Defendant asserts that, at most, the evidence showed he killed the victim while acting under a sudden and intense passion resulting from serious provocation. We disagree.

In reviewing a sufficiency of the evidence claim, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.) It is not our function on review to retry the defendant, and we will not reverse a conviction unless the evidence asserted to sustain it is so improbable or unsatisfactory that it creates a reasonable doubt of guilt. Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.

The standard of review articulated above applies whether the evidence is direct or circumstantial. (People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344.) Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to establish the guilt or innocence of a defendant. (People v. Jones (1985), 105 Ill. 2d 342, 355, 475 N.E.2d 832, 838.) Each link in the chain of circumstances need not satisfy the jury beyond a reasonable doubt; it is sufficient if all the evidence taken together satisfies the jury beyond a reasonable doubt of the accused’s guilt. Jones, 105 Ill. 2d at 355, 475 N.E.2d at 838.

Defendant was found guilty of murder in violation of section 9— 1(a) of the Illinois Criminal Code of 1961, which provides in part:

“A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
* * *
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another.” Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a).

On appeal, defendant asserts that the proper conviction should have been for voluntary manslaughter, not murder:

“(a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) The individual killed ***[.]
***
Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.” Ill. Rev. Stat. 1985, ch. 38, par. 9—2.

On appeal, defendant limits his sufficiency argument to voluntary manslaughter. Accordingly, with respect to this crime, the determinative question at trial was whether there existed such provocation as would have caused the state of mind claimed in a reasonable person under the same circumstances. The test is objective, not subjective. The jury apparently determined the victim’s conduct towards defendant and his wife was not sufficiently provocative to justify defendant’s shooting of the victim in the face at close range. This was the jury’s call (People v. Johnson (1979), 70 Ill. App. 3d 149, 388 N.E.2d 225), who observed the witnesses, evaluated their credibilities and assessed whether sufficient provocation existed. After reviewing the evidence in this case with respect to the issue of provocation, specifically, the victim’s conduct towards defendant and his wife immediately preceding the shooting, we cannot say that “the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt.” Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.

Defendant cites numerous cases to support his argument that the evidence supported only one verdict and that this court must reduce his conviction to voluntary manslaughter. (See People v. Collins (1991), 213 Ill. App. 3d 818, 572 N.E.2d 1005, appeal denied (1991), 141 Ill. 2d 548, 580 N.E.2d 122; People v. Robles (1975), 30 Ill. App. 3d 335, 332 N.E.2d 46; People v. Stowers (1971), 133 Ill. App. 2d 627, 273 N.E.2d 493; People v. Newberry (1970), 127 Ill. App. 2d 322, 262 N.E.2d 282.) Defendant’s cases are not persuasive.

Except for Collins, the reviewing court found the evidence entitled the jury to reach the voluntary manslaughter verdict it did. The courts accordingly affirmed the jury’s verdict. Contrary to defendant’s assertion, none of these cases stand for the proposition that, in this case, the evidence required a voluntary manslaughter verdict as a matter of law. Indeed, the cases stand for the proposition that intent issues are uniquely for the jury to decide, whose decision is accorded appropriate deference on review.

As for Collins, the reviewing court grudgingly reversed a jury’s murder verdict to voluntary manslaughter. The facts of that case, however, revealed mutual combat between the defendant and the deceased. Such a situation is not present here. Each case must turn on its own facts.

Defendant next contends on appeal that prosecutorial comments during closing argument denied him a fair trial. Defendant alleges both misstatements of fact and law.

Defendant first questions the prosecutor’s allegation during rebuttal that the first words from Mrs. Petrusel’s mouth were a lie. Defendant’s objection to the statement was sustained, and the court instructed the jury that it heard the witness’ testimony. In defendant’s post-trial motion, defendant only asserted generally that the assistant State’s Attorney “made prejudicial inflammatory and erroneous statements in closing argument.” No specific comments were mentioned.

Following the court’s response to the above comment, the State argued that Mrs. Petrusel’s lies continued when she testified that she did not see her husband’s gun until the shooting occurred and that she does not recall her husband stating that “some brains would fly” that night. The State was apparently asking the jurors to remember Caliopa Mundean’s testimony that Mrs. Petrusel was present at the table when defendant exhibited his gun and made the statement in question. Defendant made no contemporaneous objection to these latter comments by the State.

Defendant has waived review of the State’s comments. To preserve an issue for appellate review, “both a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial.” (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Defendant’s general assertions in his post-trial motion do not preserve the issue for review. People v. Thomas (1984), 121 Ill. App. 3d 883, 460 N.E.2d 402.

Even if we were to reach the merits of the comments under the plain error doctrine, no error has occurred. A prosecutor is allowed wide latitude during closing argument, and absent an abuse of discretion, the trial court’s determination as to the propriety of the argument will be followed. (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 847.) A prosecutor may comment on the evidence, draw reasonable inferences therefrom and discuss the witnesses’ credibility. Weatherspoon, 63 Ill. App. 3d 315, 379 N.E.2d 847.

In this case, the prosecutor could properly comment that Mrs. Petrusel was lying to protect her ex-husband. While we may question this tactic’s persuasiveness with the jury, the State’s comments were appropriate nevertheless. We accordingly find that no error has occurred.

Defendant’s next allegation of factual miscomment was the prosecution’s statement that defendant had to strain to release the safety on the gun before shooting. The State argued that this evinced defendant’s intent to murder. Defendant posed no objection during trial to the comment.

We find that defendant has waived review of the comment. Defendant correctly asserts that no evidence existed that the gun’s safety was on prior to defendant shooting the victim. Thus, it was improper for the State to argue that the safety was difficult to move and that defendant “slipped it over there before he blew the guy’s brains out.” Defendant’s failure to raise a contemporaneous objection, however, denied the trial court the opportunity to correct the State’s improper comment. It is fundamentally improper to allow defendant to gain a reversal without providing the trial court an opportunity to prevent or correct any alleged error by failing to make timely objection. (People v. Center (1990), 198 Ill. App. 3d 1025, 556 N.E.2d 724.) This policy is particularly appropriate relative to the comment in question. Had defendant contemporaneously objected, the court could have corrected the erroneous statement.

Although we have found the State’s comment to be erroneous, no new trial is required. The jury was subsequently instructed that closing arguments are not evidence and that the jury is to disregard argument not based on the evidence. Moreover, the question of defendant’s intent at trial turned on the sufficiency of the provocation to justify defendant’s actions. As discussed earlier, the jury was entitled to reject defendant’s heat of passion argument. We find, therefore, that the prosecutor’s gun safety comment was not a material factor in defendant’s conviction.

Defendant next directs this court to two misstatements of law which he claims denied him a fair trial. Defendant recites the comment that, “Ladies and gentlemen, you know it’s not not guilty, there is a dead man.” Defendant made no contemporaneous objection to this comment. Defendant asserts on appeal that merely because someone died from defendant’s shooting does not require a finding of guilty.

Defendant next recites the comment that “[t]he State has proven murder because they have shown that the defendant intended to kill Ionel Busta.” Defendant again made no contemporaneous objection to this comment. Defendant asserts that this comment was error because it implied that “the only thing the State must prove to establish murder is a volitional act intending death.”

We find that defendant has again failed to preserve both comments for review. Even if we were to address the merits of the issue, we find that reversal is not required. The prosecutor’s comments were isolated, and the jury was later instructed with the pattern instructions relative to voluntary manslaughter, self-defense and involuntary manslaughter. Any prejudice these comments created was cured by these subsequent instructions.

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

Affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    CERTAIN UNDERWRITERS AT LLOYD’S, LONDON, et al., Plaintiffs-Appellants, v. BERTRAND GOLDBERG ASSOCIATES, INC., et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—90—2085
    Opinion filed November 23, 1992.

      Peterson & Ross, of Chicago (Theodore J. Tsoumas, Larry A. Hoellwarth, and Jonathan A. Mugel, of counsel), for appellants.
    O’Keefe, Ashenden, Lyons & Ward, of Chicago (Patrick L. Moore, of counsel), for appellee Providence Hospital.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiffs, Certain Underwriters at Lloyd’s, London (Lloyd’s), Walbrook Insurance Co., Ltd., Anglo American Insurance Co., Kraft Insurance Co., Ltd., El Paso Insurance Co., Ltd., Louisville Insurance Co., Ltd., Ludgate Insurance Co., Ltd., Mutual Reinsurance Co., Ltd., Compagnie Europeene D’Assurances Industrielles, S.A., C.E. Heath Underwriting & Insurance (Australia) Pty Ltd., Dominion Insurance Co., Ltd., Compagnie D’Assurances Maritimes, Aeriennes et Terrestres per Camomile Underwriting Agencies, Ltd., Turegum Insurance Co., Government Insurance Office of N.S.W., Assicurazoni Generali S.P.A., and Associated International Insurance Co. (AIIC), appeal an order of the circuit court of Cook County dismissing their complaint against defendants Bertrand Goldberg Associates, Inc. (BGA), and Providence Hospital (Providence) on the ground of forum non conveniens. For the following reasons, we affirm.

The record on appeal discloses the following facts. On October 10, 1989, plaintiffs filed a “Complaint for Reformation, Declaratory Judgment and Other Relief” against defendants in the circuit court of Cook County. The complaint alleges that BGA sought insurance from plaintiffs to cover liability arising from BGA’s activities as architects and engineers. The complaint also alleges that all parties understood that any insurance policies issued by plaintiffs would not cover negligent acts, errors or omissions which occurred before August 17, 1987, the inception date of the policies. This was allegedly understood because, among other allegations, BGA had been without errors and omissions coverage since May 1, 1985. The complaint alleges that due to a mutual mistake of fact, policy documents prepared by a resident agent of Lloyd’s, which were also incorporated by reference into a policy issued by AIIC, do not state that the policy provides coverage only from the inception date of the policies.

It is then alleged that on or about July 29, 1988, Providence submitted to EGA a claim seeking damages for alleged negligent acts, errors or omissions in the performance of architectural and engineering services relating to the construction of a replacement hospital in Mobile, Alabama. Providence filed a suit against EGA relating to this claim in the circuit court of Mobile County, Alabama, on November 29, 1988 (the Alabama lawsuit). The alleged negligence in that case took place prior to the inception date of the policies at issue here.

The complaint further alleges that on August 4, 1988, EGA filed suit against Providence in the United States District Court for the Northern District of Illinois (the Federal lawsuit), alleging breach of contract relating to the replacement hospital project.

EGA has requested coverage for the Alabama lawsuit. Plaintiffs declined coverage based on the mutual mistake of fact alleged earlier.

Based on these and other allegations (particularly an allegation that EGA knew of the Providence claim prior to the inception date of the policies), plaintiffs requested that the policies be reformed to reflect that coverage was only retroactive to the inception date of August 17, 1987, and that the court declare that there is no coverage for negligence arising before that date and that plaintiffs do not have to cover, defend or indemnify EGA with respect to the Alabama lawsuit.

The complaint also named Providence as a defendant. The complaint described Providence as an Alabama nonprofit corporation that transacted business in the State of Illinois.

EGA filed an answer and counterclaim for declaratory judgment. Providence filed a special appearance, then moved to dismiss plaintiffs’ complaint for lack of personal jurisdiction and to quash return of service. Providence contended that the trial court lacked personal jurisdiction over Providence because it had not transacted business in Illinois.

Plaintiffs responded by amending their complaint to allege additional facts which allegedly demonstrated that the trial court had jurisdiction over Providence. Plaintiffs also filed a memorandum of law in opposition to Providence’s motion to dismiss. This memorandum incorporated by reference facts contained in pleadings and affidavits filed in the Federal lawsuit. Plaintiffs attached three documents submitted by EGA in the Federal lawsuit: the initial complaint; a response to Providence’s motion to dismiss or quash return of service in the Federal lawsuit; and a response to that motion which also responded to Providence’s motion to dismiss or transfer the Federal lawsuit under the doctrine of forum non conveniens.

Providence then filed a reply to plaintiffs’ résponse. The appendix to this document contained additional documents that Providence had filed in support of its motions to dismiss or transfer the Federal lawsuit.

On April 10, 1990, the trial court held a hearing on Providence’s motion to dismiss for lack of personal jurisdiction and to quash return of service. The trial court indicated that counsel had provided the court with a written opinion in the Federal lawsuit that did not address the issue of personal jurisdiction but did transfer the Federal lawsuit to Alabama under the doctrine of forum non conveniens. During the hearing, the parties discussed issues relating not only to personal jurisdiction but also to forum non conveniens. At the conclusion of the hearing, the trial court dismissed the case, including BGA’s counterclaim, on the grounds of forum non conveniens. The trial court noted that it was influenced by the decision in the Federal lawsuit. The dismissal was without prejudice, subject to refiling in Alabama.

Plaintiffs and EGA moved to vacate the dismissal. On June 20, 1990, the trial court held a hearing on the motion. Following a colloquy and a statement by the trial court regarding the congestion of the court’s docket, the motions to vacate were denied. Plaintiffs filed a notice of appeal on July 19, 1990; EGA filed a notice of appeal on July 27, 1990. This court granted a motion to realign EGA as an appellee on November 26,1990.

I

Initially, we must address Providence’s argument that plaintiffs have waived their right to present any of the arguments they raise on appeal. First, Providence argues that plaintiffs waived any objection to a ruling based on forum non conveniens by raising the doctrine at the hearing, thus inviting the ruling. It is true that a party may not appeal an error which that party invited. (E.g., J.L. Simmons Co. ex rel. Hartford Insurance Group v. Firestone Tire & Rubber Co. (1985), 108 Ill. 2d 106, 116, 483 N.E.2d 273, 278.) In this case, the transcript of proceedings seems to indicate that plaintiffs were the first to discuss the appropriateness of the forum. However, a fair reading of the transcript as a whole does not appear to indicate that plaintiffs sought the ruling at issue on appeal.

Second, Providence argues that plaintiffs waived any argument regarding forum non conveniens by failing to object to the ruling until they filed their motion to vacate. Questions not raised in the trial court are generally deemed waived on appeal. (E.g., In re Marriage of Rodriguez (1989), 131 Ill. 2d 273, 279, 545 N.E.2d 731, 733.) In this case, however, plaintiffs raised the objections raised here in a timely motion to vacate the ruling. Thus, plaintiffs offered the trial court the first opportunity to correct any error, thereby satisfying the concerns at the heart of the waiver rule. Cf. In re Marriage of Harper (1989), 191 Ill. App. 3d 245, 246, 547 N.E.2d 574, 575 (waste of judicial resources can be avoided by objection within 30 days of ruling).

II

Forum non conveniens is a doctrine based on considerations of fundamental fairness and sensible, effective judicial administration. It allows a court to decline jurisdiction over a case, even though it may have jurisdiction over the subject matter and parties, where it appears that another forum can better serve the convenience of the parties and the ends of justice. (See McClain v. Illinois Central Gulf R.R. Co. (1988), 121 Ill. 2d 278, 288, 520 N.E.2d 368, 372.) Generally, a trial court’s decision on this issue will not be reversed, absent an abuse of discretion. Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 370, 444 N.E.2d 157, 163.

Plaintiffs contend on appeal that the trial court erred because it considered and decided the issue of forum non conveniens on its own motion. Plaintiffs note that the pretrial proceedings related to the issue of whether the trial court had personal jurisdiction over Providence, not forum non conveniens. In support of their argument, plaintiffs cite Illinois Supreme Court Rule 187(a) (134 Ill. 2d R. 187(a)), which provides:

“A motion to dismiss or transfer the action under the doctrine of forum non conveniens must be filed by a party not later than 90 days after the last day allowed for the filing of that party’s answer.”

Plaintiffs contend that Rule 187(a) restricts forum non conveniens motions to those “filed by a party,” thus barring the trial court from acting sua sponte.

This argument is not persuasive. The plain language of Rule 187(a) addresses the time frame in which parties may file a motion based on forum non conveniens. It does not expressly purport to proscribe who may make such a motion.

Indeed, there does not appear to be any authority in Illinois addressing the question of whether a trial court may invoke forum non conveniens on its own motion. States where the doctrine of forum non conveniens has been codified, either by rule or statute, may rely on the plain language of that codification to answer the question. (Compare Country Pride Foods, Limited v. Medina & Medina (1983), 279 Ark. 75, 648 S.W.2d 485 (statute permits trial court to invoke forum non conveniens on its own motion), with Hurlbut v. Hurlbut (1979), 101 Misc. 2d 571, 421 N.Y.S.2d 509 (rule bars court from dismissing case on forum non conveniens grounds sua sponte).) In Illinois, however, the doctrine is rooted in the common law. (Torres v. Walsh (1983), 98 Ill. 2d 338, 347, 456 N.E.2d 601, 605.) Common law decisions generally permit the trial court to invoke the doctrine sua sponte. (Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Colum. L. Rev. 1, 2 & n.9 (1929) (and cases cited therein); see Haynes v. Carr (D.C. App. 1977), 379 A.2d 1178.) Thus, we conclude that the trial court did not abuse its discretion in raising the issue of forum non conveniens on its own motion.

Ill

Plaintiffs next contend that even if the trial court may raise forum non conveniens on its own, the trial court erred in this case because the parties were unable to conduct discovery or submit affidavits and other evidence on the issue to the court. In support of this argument, plaintiffs cite Illinois Supreme Court Rule 187(b) (134 Ill. 2d R. 187(b)), which provides:

“Hearings on motions to dismiss or transfer the action under the doctrine of forum non conveniens shall be scheduled so as to allow the parties sufficient time to conduct discovery on issues of fact raised by such motions. Such motions may be supported or opposed by affidavit. In determining issues of fact raised by affidavits, any competent evidence adduced by the parties shall also be considered.”

Unlike Rule 187(a), the language of Rule 187(b) seems to be directed to the trial court as well as the parties. The rule directs that the trial court “shall” schedule hearings on forum non conveniens motions so as to permit discovery and that the trial court “shall” consider evidence on issues of fact raised by affidavits. Use of the word “shall” suggests that these conditions are mandatory and binding on the trial court. (See Wilson v. Illinois Power Co. (1986), 148 Ill. App. 3d 503, 505, 499 N.E.2d 525, 526 (if our supreme court intended that provision of Rule 187(b) that motions “may” be supported by affidavit be mandatory, it would have used word “shall”).)

However, Wilson itself stands for the proposition that the parties need not submit affidavits in support of or in opposition to a motion for forum non conveniens. (Wilson, 148 Ill. App. 3d at 505, 499 N.E.2d at 526.) Thus, while the rule generally requires the trial court to allow time for discovery, this court has recognized that additional materials may be unnecessary to the disposition of the motion. In this case, the trial court was faced with a rather unusual set of circumstances. The parties submitted numerous pleadings from the Federal lawsuit which contained allegations that were relevant (though not directly on point) to the issue of forum non conveniens. It was not improper for the trial court to consider the facts alleged in those pleadings. (See Bond v. Dunmire (1984), 129 Ill. App. 3d 796, 804, 473 N.E.2d 78, 84; Ill. Rev. Stat. 1989, ch. 110, par. 2—606.) The record indicates that the various factors of a forum non conveniens analysis were discussed at the initial hearing and the hearing on the motion to vacate. Plaintiffs failed to specify what additional facts they might show if allowed additional time for discovery, both in their motion to vacate and in oral argument before this court. Given the unique factual matrix in this case, we cannot conclude that a reversal of the trial court is warranted. We turn, therefore, to a consideration of the merits of the trial court’s ruling.

IV

“Before dismissing a lawsuit on grounds of forum non conveniens, a trial court must weigh a variety of factors and conclude that the balance strongly favors the defendant.” (Emphasis omitted.) (Japax, Inc. v. Sodick Co. (1989), 186 Ill. App. 3d 656, 666, 542 N.E.2d 792, 798.) These factors include the plaintiffs’ choice of forum; the relative ease of access to sources of proof; the availability of compulsory process for the attendance of unwilling witnesses; the cost of obtaining attendance of willing witnesses; other practical obstacles to trial of the case; the residence of the parties; the relation of the case to the community; the State law to be applied; and the congestion of the court’s dockets. See, e.g., McClain, 121 Ill. 2d at 288-89, 520 N.E.2d at 372.

As the above rules suggest, the trial court will generally defer to the plaintiff’s choice of forum. That choice may be entitled to less deference when it is not the plaintiff’s county of residence. (See Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 228, 506 N.E.2d 1291, 1296.) In this case, while the record indicates that Lloyd’s resident agent is located in Chicago, the record also shows that trial court noted that Lloyd’s is located in many jurisdictions. The record further shows that counsel informed the trial court, upon questioning, that one of the plaintiffs was located in California. These factors may justify the trial court’s apparent lack of deference to plaintiffs’ choice of forum.

The record does not indicate where other plaintiffs reside; however, at oral argument, counsel indicated that at least some of the other plaintiffs are headquartered abroad. EGA, the insured, is an Illinois corporation. Providence is an Alabama nonprofit corporation.

As for the relative ease of access to proof, the availability of compulsory process for the attendance of unwilling witnesses and the cost of obtaining attendance of willing witnesses, the record indicates that “the broker, who is going to be a key witness in this case, is located in Illinois.” The trial court was also aware that witnesses such as Bertrand Goldberg, while domiciled in Illinois, were going to be involved in related litigation in Alabama.

The trial court noted that the agreement between EGA and Providence was to be interpreted under Alabama law. Plaintiffs responded that Illinois law would govern the interpretation of the policies issued to EGA. Insurance contracts may be governed by the location of the subject matter, the place of delivery of the contract, the domicile of the insured or the insurer, the place of the last act to give rise to a valid contract, the place of performance or other place bearing a relationship to the general contract, or the stipulation of the parties. (See Hofeld v. Nationwide Life Insurance Co. (1975), 59 Ill. 2d 522, 528, 322 N.E.2d 454, 457-58.) The record does not definitively speak to any of these factors; it is unclear where the contract was delivered or where the last act necessary to contract formation took place. Counsel represented that the broker, Lloyd’s resident agent and the insured are all located in Illinois; these factors would support the contention that Illinois law would control.

The transcript of the hearing on the motions to vacate indicates that the trial court was concerned about the congestion of the court’s dockets in Cook County. The record also reflects the trial court’s concern that the litigation at hand was more connected to the community of Mobile than the community of Chicago, as the insurance dispute was prompted by the Alabama litigation and its outcome would affect the course of the Alabama litigation.

Were it the function of this court to make the forum non conveniens determination in the first instance, we might conclude that the balance did not strongly favor litigating the insurance issues in Alabama. Making that determination, however, is not the function of this court. Rather, we must determine whether the balance struck by the trial court in this case was within its discretion. Again, given the fairly unique set of circumstances in this case, we cannot conclude that the trial court should be reversed.

This conclusion is also supported by the representations of both counsel at oral argument before this court that at least some of the insurance issues are the subject of litigation in the United States District Court for the Southern District of Alabama. Indeed, while this court is loathe to take judicial notice of other proceedings which are outside the record or merely submitted as an appendix to an appellate brief, we note that documents appended to Providence’s brief support the representations of both counsel and Providence offered to supplement the record with further documents filed in Alabama. Marlow v. American Suzuki Motor Corp. (1991), 222 Ill. App. 3d 722, 727-28, 584 N.E.2d 345, 348 (to avoid absurd result, appellate court may take judicial notice of pending action filed after appeal which may be more appropriate forum for resolution of dispute); Boston v. Rockford Memorial Hospital (1986), 140 Ill. App. 3d 969, 972, 489 N.E.2d 429, 432 (taking judicial notice of dockets on issue oí forum non conveniens).

In sum, given the unique circumstances in this case — e.g., the discussion of forum non conveniens factors at the hearings, the relationship of this dispute to the initial Alabama lawsuit and the subsequent Alabama litigation which raises at least some of the insurance issues — we conclude that a reversal is not warranted in this case. For all of the aforementioned reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

BUCKLEY, P.J., and O’CONNOR, J., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    ANITA POTHIER, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellee.
    First District (1st Division)
    No. 1—91—2248
    Opinion filed November 23, 1992.

      Adler, Gale & Rooth, of Chicago (Valerie Harris Adler, of counsel), for appellant.
    Querrey & Harrow, Ltd. (Michael Resis, Ellen L. Karecki, and G.A. Finch, of counsel), and William H. Farley, Jr., of Chicago Transit Authority, both of Chicago, for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Anita Pothier (plaintiff) brought a personal injury action against the Chicago Transit Authority (CTA) to recover damages for injuries she allegedly sustained as she alighted from a CTA bus. The trial court granted the CTA’s motion to dismiss (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619) on the ground that plaintiff’s claim was barred because she failed to give proper written notice within six months of the accident as required by section 41 of the Metropolitan Transit Authority Act (Ill. Rev. Stat. 1989, ch. 1112/3, par. 341). On appeal, plaintiff contends that the affidavit attached to her response to the CTA’s motion to dismiss raises a material question of fact as to whether the CTA claim adjuster’s prelitigation conduct estopped the CTA from asserting plaintiff’s failure to comply with the notice requirement as a bar to her cause of action, thereby precluding dismissal of her complaint. We reverse and remand.

On June 22, 1990, plaintiff filed a one-count complaint against the CTA to recover for her injuries. Plaintiff alleged that on September 12, 1989, as she exited a CTA bus at or near the intersection of Racine and Taylor, the bus prematurely pulled away from the curb while she was still on the steps causing her to fall and sustain permanent injuries. Plaintiff concedes that she did not give written notice of her claim to the secretary of the board and to the CTA’s general counsel within six months of the incident as required by section 41. (Ill. Rev. Stat. 1989, ch. 1112/3, par. 341.) Plaintiff argues, however, that the CTA is equitably estopped from asserting the six-month notice requirement to bar her claim and that her uncontradicted affidavit at least raises a material question of fact on this issue.

In her affidavit, plaintiff stated that shortly after her injury she was contacted by Omar Colan, a CTA representative, who informed her that he would send her all the forms she would need in order to file a claim against the CTA. On December 5, 1989, plaintiff received a letter from Golan telling her that all she needed to do was to send him her medical reports and bills. On January 16, 1990, plaintiff again received a letter from Golan, this one asking her to contact him. According to plaintiff’s affidavit, shortly after receiving the letter she contacted Golan and he informed her that “everything was going o.k. with Pier] claim” and that all he needed were “the medical authorizations in order to get medical records so that they could make an offer to me.” Plaintiff further stated that she had several other telephone conversations with Golan during which time she informed him of the “date, time and bus in which [she] was injured as well as all of the names and addresses of the hospitals and doctors which [she] had seen related to Pier] injuries.” She asserted that he never told her that she had to send written notice of the accident. She swore that Golan “assured [her] that [she] did not need a lawyer” and that her claim would be settled shortly because he had or would soon receive all the necessary information and documents. Upon the expiration of six months, Golan informed plaintiff that the CTA would be denying her claim because she failed to file the statutorily required written notice. In her affidavit, plaintiff asserted that, in reliance upon Golan’s assurances that he had all the necessary information and that her claim would be settled shortly, she did not file notice of her claim nor did she contact an attorney in order to discover her legal rights. The CTA did not file any counteraffidavits nor even reply to plaintiff’s response to its motion to dismiss. On April 26, 1991, the trial court heard oral argument on the motion. On June 7, 1991, the trial court dismissed plaintiff’s complaint with prejudice and without specific written findings. Plaintiff appeals.

The sole issue on appeal is whether plaintiff’s uncontradicted affidavit establishes a material question of fact as to whether the CTA is estopped from moving to bar plaintiff’s claim on the ground that plaintiff failed to comply with the notice requirement of section 41 of the Metropolitan Transportation Act (Act). If a plaintiff files an affidavit in response to a motion to dismiss alleging facts to support the defense of estoppel and the defendant fails to file a counteraffidavit, the court must accept the facts in plaintiff’s affidavit as true and determine whether a material question of fact has been raised on the issue of estoppel. (D’Urso v. Wildheim (1976), 37 Ill. App. 3d 835, 838-39, 347 N.E.2d 463, 465-66; Suing v. Catton (1970), 118 Ill. App. 2d 468, 470, 254 N.E.2d 806, 808.) A question of fact is raised by an uncontradicted affidavit “if reasonable minds might differ as to inferences to be drawn from undisputed evidence.” (Pantle v. Industrial Comm’n (1975), 61 Ill. 2d 365, 369, 335 N.E.2d 491, 494.) If a genuine question of fact is raised on the defense of estoppel and the plaintiff has requested a jury trial, the court must deny the defense motion to dismiss. (See Ill. Rev. Stat. 1989, ch. 110, par. 2—619(c).) If no question of fact is raised by the plaintiff’s affidavit, however, the court may properly dispose of her complaint as a matter of law. Udstuen v. Patterson (1990), 198 Ill. App. 3d 67, 69, 555 N.E.2d 750, 751; D’Urso, 37 Ill. App. 3d at 839, 347 N.E.2d at 466.

Section 41 sets forth a one-year statute of limitations on any civil action against the transportation authority and also requires any person who is about to commence a personal injury action against the authority to file written notice “[wjithin six (6) months from the date that such an injury was received or such cause of action accrued *** in the office of the secretary of the Board and also in the office of the General Attorney for the Authority.” (See Ill. Rev. Stat. 1989, ch. 1112/3, par. 341.) The Act further provides that failure to give the statutorily required notice is fatal and that any personal injury action commenced against the authority “shall be dismissed and the person to whom any such cause of action accrued *** shall be forever barred from further suing.” (Ill. Rev. Stat. 1989, ch. par. 341.) This court has recently held that the requirements of section 41 are mandatory and that the burden of strict compliance rests upon the plaintiff. Sanders v. Chicago Transit Authority (1991), 220 Ill. App. 3d 505, 507, 581 N.E.2d 211, 213.

Under the doctrine of equitable estoppel, however, the CTA may be precluded from asserting that plaintiff’s failure to comply with the section 41 requirements bars her claim. (See Searcy v. Chicago Transit Authority (1986), 146 Ill. App. 3d 779, 497 N.E.2d 410.) In order to establish equitable estoppel, the plaintiff must show that he was led to detrimentally rely upon the conduct or statements of the defendant and that such reliance was in good faith. (Searcy, 146 Ill. App. 3d at 783, 497 N.E.2d at 412-13.) Specifically, if there is evidence of conduct in the record “which induces plaintiff to reasonably believe his claim will be settled without suit or lulls plaintiff into a false sense of security which causes him to delay the assertion of his rights” a question of fact exists as to whether the defense of estoppel is available to the plaintiff. (Myers v. Centralia Cartage Co. (1981), 94 Ill. App. 3d 1139, 1143, 419 N.E.2d 465, 468.) Under the facts of this case, we hold that plaintiff’s uncontradicted affidavit raised a question for the trier of fact on whether the CTA is estopped from raising plaintiff’s failure to file the statutorily required notice to bar her claim.

In this case, plaintiff filed her claim within the one-year statute of limitations period, but concedes that she failed to give the statutorily required notice. Relying upon this court’s decision in Searcy v. Chicago Transit Authority (1986), 146 Ill. App. 3d 779, 497 N.E.2d 410, the plaintiff asserts that her uncontradicted affidavit adequately raised the defense of equitable estoppel. The Searcy court held that the prelitigation conduct of a CTA claim adjuster could estop the CTA from relying upon the requirements of section 41. In Searcy, the plaintiff was injured while exiting a CTA elevated train. The CTA filed a motion to dismiss because the action had not been filed within the one-year limitations period. Plaintiff argued that the prelitigation conduct of the CTA’s claim adjuster estopped the CTA from raising his noncompliance with section 41 as a defense.

In an uncontradicted affidavit which she attached to her response to the CTA’s motion to dismiss, the. Searcy plaintiff asserted that the claim adjuster informed her that the CTA would pay “all of plaintiff’s medical expenses *** and reimburse her for lost wages.” (146 Ill. App. 3d at 781.) The adjuster also assured her that his investigation was just a “formality” and that settlements of claims such as hers were routine. According to Searcy’s affidavit, she filed an accident report with the .CTA at the adjuster’s request and was told that her claim would be settled “without any problems” as soon as the full extent of her injuries was determined. The adjuster advised her that she did not need an attorney and that her settlement “would depend primarily on the nature and extent of the injuries.” (146 Ill. App. 3d at 781.) Plaintiff Searcy discussed her medical condition with the adjuster regularly and just prior to the expiration of six months the adjuster helped her complete the statutorily required notice of claim form which the adjuster called “an extension” form. He informed Searcy that if her injuries lasted for an extended period, “the CTA would continue the matter for as long as one year from the date of the accident at the end of which time the CTA would settle the matter regardless of the duration of plaintiff’s injuries.” (146 Ill. App. 3d at 781.) As the one-year date approached, plaintiff expressed concern and asked the adjuster what she should do. According to her affidavit, he told her not to worry because he had received all the necessary documents and there would be no problem settling her claim. Plaintiff concluded her affidavit by swearing that she had relied upon the adjuster’s assurances that she did not need an attorney because the CTA would pay for her losses and that as a result she did not retain an attorney or seek any advice on how to maintain her claim. She stated she did not know that simply filing an action within the one-year period would have preserved her claim. The day after the one-year limitation period expired, the CTA board denied her claim on the basis of no liability. In reversing and remanding, the Searcy court concluded that

“it is at least arguable that the conduct and representations of the CTA’s claims adjuster in this case lulled plaintiff into a false sense of security that her claim for damages would be settled regardless of the limitation period. Such conduct may work an estoppel. [Citations.] Plaintiff reasonably may have relied upon [the CTA claims adjuster’s] conduct and representations to her detriment. Under these circumstances, it was improper for the court to dispose of the issue of estoppel as a matter of law. (D’Urso v. Wildheim (1976), 37 Ill. App. 3d 835, 838-39, 347 N.E.2d 463.) Plaintiff’s estoppel argument presented a question of fact for determination by the trier of fact.” Searcy, 146 Ill. App. 3d at 784, 497 N.E.2d at 413.

The CTA, in the instant case, on the other hand, argues that plaintiff’s affidavit is insufficient as a matter of law to create an issue of fact as to whether the CTA is estopped from asserting the notice requirement as a bar to plaintiff’s claim. First, the CTA asserts that Searcy is distinguishable on its facts because plaintiff Searcy was aware of the limitations period and was led to believe her claim would be settled “regardless of the limitation period” while plaintiff in the instant case was not aware of the statute. Therefore, according to the CTA’s reasoning, plaintiff could not have been misled by the CTA’s conduct.

The CTA’s argument, however, is based upon the false premise that a plaintiff must be aware of the statute of limitations period before being able to assert estoppel. Estoppel also extends to conduct which is intended to “prevent a claimant from ascertaining legal rights and obligations” (Murphy v. Chicago Transit Authority (1989), 191 Ill. App. 3d 918, 923, 548 N.E.2d 403, 406) or which “ ‘induces plaintiff to a reasonable belief that his claim will be settled without suit.’ ” (D’Urso, 37 Ill. App. 3d at 838, 347 N.E.2d at 465, quoting Kinsey v. Thompson (1963), 44 Ill. App. 2d 304, 307, 194 N.E.2d 565, 567.) The CTA’s disingenuous reasoning would allow it to lull injured passengers into believing that making a claim is a routine matter and mislead them into not taking steps to ascertain their rights. The appellate court’s statement in Hinz v. Chicago Transit Authority (1971), 133 Ill. App. 2d 642, 646, 273 N.E.2d 427, 430, in a slightly different context is equally applicable here, that justice must prevent us “from allowing defendant to lull plaintiff into this false sense of security only later to find that the real theory of defendant’s case was to allow plaintiff to reach a point of no return and then discover all was for naught.” ■

The CTA also analogizes to four other cases which it asserts are more on point. The principle case the CTA relies upon is Murphy v. Chicago Transit Authority (1989), 191 Ill. App. 3d 918, 548 N.E.2d 403. In Murphy, the appellate court concluded that Searcy, did not support the plaintiff’s position and held that plaintiff’s attorney’s affidavit was insufficient to estop the CTA from asserting plaintiff’s failure to give the statutorily required notice. The attorney argued that the CTA claim manager misled him and “lullfed] him into a false sense that the claim had been accepted and would be settled.” (191 Ill. App. 3d at 922.) He asserted in an affidavit that he sent the notice to the wrong party in reliance upon the CTA claim manager’s instruction and later was assured “everything was okay and would be taken care of.” (191 Ill. App. 3d at 922.) The court noted, however, that the claim manager never told plaintiff’s attorney that he need not take all legally required steps to protect his client’s claim. In the instant case, the CTA contends that the assertions allegedly made to plaintiff were analogous to the assertions made to the plaintiff’s attorney in Murphy that “everything was okay and would be taken care of.” (191 Ill. App. 3d at 922.) The CTA asserts that this court should conclude, as did the Murphy court, that these “vague statements” that everything was all right are not equivalent to admissions of liability or attempts to prevent the plaintiff from becoming aware of her legal rights and obligations. Therefore, the CTA concludes, these statements were insufficient as a matter of law to raise the estoppel defense.

The CTA also cites to this court’s recent decision in Sanders v. Chicago Transit Authority (1991), 220 Ill. App. 3d 505, 581 N.E.2d 211, in which we held that plaintiff’s defective notice required dismissal of her complaint and that the conduct of the CTA was insufficient to create an estoppel. In Sanders, two months after plaintiff allegedly was hit by a CTA bus, plaintiff’s attorney sent a certified letter to the CIA’s general counsel but not to the secretary of the board as required by section 41. He also sent medical records and bills along with an authorization for the release of medical information to the claims department and was assured several times by a CTA claim adjuster that plaintiff’s “settlement was proceeding.” The Sanders court found the decision in Searcy distinguishable in that Ms. Sanders was represented by an attorney and it was not averred that any CTA representative told plaintiff’s counsel that he need not comply with the requirements of section 41. Additionally, the court noted that the alleged assurances made to plaintiff’s attorney that the settlement was proceeding occurred after the expiration of the six-month notice period; therefore, these assurances could not have been relied upon to support a defense of estoppel.

The CTA also cites to Myers v. Centralia Cartage Co. (1981), 94 Ill. App. 3d 1139, 419 N.E.2d 465, and Hurtt v. Davidson (1980), 84 Ill. App. 3d 681, 406 N.E.2d 90. In both Myers and Hurtt, the appellate court held that the defendants were not estopped from asserting the statute of limitations as a defense and that no question of fact existed as to whether the conduct of defendant’s insurer caused the plaintiff’s delay in filing suit. The CTA cites Myers and Hurtt specifically for the proposition that conduct must go beyond mere investigation and negotiation before a defendant can be estopped from asserting a statute of limitations defense. (See D’Urso, 37 Ill. App. 3d at 839, 347 N.E.2d at 466.) The CTA asserts that, as in Myers, plaintiff did not allege that they had reached a definite agreement or discussed a specific amount of money. Therefore, the claim adjuster’s conduct did not exceed mere negotiation and could not have lulled the plaintiff into a reasonable belief that her claim would be settled or that the CTA would not rely upon the section 41 notice requirement.

The facts of the instant case are more analogous to Searcy than to any of the four cases upon which defendant relies. We conclude, therefore, that plaintiff’s uncontradicted affidavit raised a question of fact on the issue of estoppel. Although the statements and representations attributed to the CTA’s claim adjuster by plaintiff’s affidavit are not as clearly misleading as those in Searcy, they are considerably more deceptive than the mere “vague statements” that were made in Murphy and Sanders. Additionally, a main factor the Murphy and Sanders courts contemplated when concluding that the plaintiffs had not overcome their burden of strict compliance with section 41 was that in both cases the plaintiffs had the benefit of counsel, a fact noticeably absent in the instant case. Moreover, the CTA’s assertion that plaintiff’s lack of counsel is not significant because it does not change the fact that she must still comply with the statutory notice requirement is misleading. Although plaintiff must still comply with section 41, her lack of counsel necessitates that the court give closer scrutiny to the defendant’s conduct.

In both Murphy and Sanders, the fact that plaintiffs were represented by counsel was a controlling factor in the courts’ rejection of plaintiffs’ estoppel argument. In addition, both courts stressed that plaintiffs’ attorneys never were told not to comply with the section 41 requirements. Moreover, the Murphy court reasoned that in Searcy “the layman claimant was actively misled *** [whereas] Murphy’s attorney relied on vague representations that ‘everything was okay’ ” and, in effect, should have known better. (Emphasis added.) (Murphy, 191 Ill. App. 3d at 923, 548 N.E.2d at 406.) The Murphy court stated that plaintiff’s attorney would not have settled for vague assurances and would have protected his client’s interests if he had checked the statute. (Murphy, 191 Ill. App. 3d at 923, 548 N.E.2d at 406.) In effect, an attorney is expected to research the law and protect his client’s interests; representations which may be considered reasonable for a layman to rely upon may not be reasonable for an attorney. See also Myers, 94 Ill. App. 3d at 1144, 419 N.E.2d at 469 (lack of counsel is an important factor necessitating closer scrutiny of insurer’s conduct); Hurtt, 84 Ill. App. 3d at 683, 406 N.E.2d at 92 (“The difference between an insurer and an individual without legal representation is not insignificant”).

The CTA also asserts, contrary to common sense and authority, that it was not misleading to inform the plaintiff she did not need an attorney. In Searcy, this court considered the fact that plaintiff was discouraged from retaining an attorney to be a significant factor. Additionally, the Murphy court reiterated this key consideration when it stated that

“Searcy demonstrates a pattern of deception in which the layman claimant was actively misled into believing that liability was admitted and her claim was being settled. She was expressly told that she did not need to obtain a lawyer.” Murphy, 191 Ill. App. 3d at 923, 548 N.E.2d at 406.

The CTA also contends that the claim adjuster’s conduct did not go beyond mere investigation and negotiation. Both cases the CTA cites on this point are distinguishable. In Myers (94 Ill. App. 3d at 1143, 419 N.E.2d at 469), the only representation upon which plaintiff could have relied was one statement by defendant’s representative that he was attempting to settle the claim. In Hurtt (84 Ill. App. 3d at 682-83, 406 N.E.2d at 91-92), the defendant made no representations that plaintiff could have reasonably relied upon or interpreted as a concession of liability. The Hurtt defendant encouraged settlement, made several offers which plaintiff refused and expressly warned plaintiff of the statute of limitations. In the instant case, according to plaintiff’s uncontradicted affidavit, the claim adjuster never told plaintiff he was merely investigating the claim to determine whether the CTA was liable, never made any offers of settlement which plaintiff refused, nor did he warn plaintiff of the section 41 requirements. In fact, his conduct and representations could have lulled a reasonable layman into believing that his claim would shortly be settled. Clearly, the CTA claim adjuster’s conduct went beyond investigation and negotiation. It is not mere investigation or negotiation for a CTA representative to tell a plaintiff that he would send her all the necessary forms she would need to make a claim or to inform her that all she needed to do was to send in her medical records and bills. Most importantly, it is not mere investigation or negotiation to advise a plaintiff against retaining an attorney.

A jury could conclude from the averments in plaintiff’s affidavit that the claim adjuster’s entire course of conduct was designed to give the impression that recovery was certain as soon as the extent of liability was determined and that plaintiff need not pursue any other avenues of relief. The claim adjuster’s statements could be interpreted as conveying the clear impression that the question was not whether plaintiff would recover, but merely how much and when. A CTA claim adjuster may not have a duty to inform a claimant of the requirements of section 41 or to suggest she retain an attorney. However, if a claim adjuster advises a claimant that she need not consult an attorney, such advice in context with other representations should either raise a duty on the CTA’s part to inform the claimant of the section 41 requirements or estop the CTA from asserting the claimant’s noncompliance with them.

We conclude that the averments in plaintiff’s affidavit were sufficient to raise the defense of estoppel and that it was error for the trial court to dismiss plaintiff’s complaint. There is at least a question as to whether the CTA claim adjuster’s conduct lulled the plaintiff into believing her claim would be settled irrespective of any limitations period. It is for the trier of fact to determine whether a layman claimant would have reasonably relied upon the statements and representations of the CTA’s claim adjuster.

Accordingly, for the foregoing reasons, we reverse the trial court’s order dismissing plaintiff’s complaint and remand the cause for further proceedings consistent with this opinion.

Reversed and remanded.

CAMPBELL and MANNING, JJ., concur.


author: PRESIDING JUSTICE HARTMAN

text:
    GENE GRIFFIN, Adm’r of the Estate of Annie Griffin, Deceased, Plaintiff-Appellant, v. ASWATH SUBRAM, Defendant-Appellee.
    First District (2nd Division)
    No. 1—91—2104
    Opinion filed November 24, 1992.
    Barsy, Joseph & Lichtenstein, of Chicago (Joel T. Daly, Burton Joseph, and Ross A. Keene, of counsel), for appellant.
    Thomas & Buckley, of Chicago (Michael G. Thomas and Jean M. Buckley, of counsel), for appellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

This is an appeal from the jury verdict and judgment for defendant, Dr. Aswath Subram, and against plaintiff, Gene Griffin, administrator of the estate of his deceased wife, Annie Griffin (Griffin). Plaintiff’s post-trial motion, seeking a new trial on all issues, was denied. Plaintiff appeals. Although plaintiff raises several issues for review, we need address only two: namely, whether the circuit court erred by permitting the jury, during its deliberation, to examine an exhibit which was not in evidence, and whether the court erred in allowing defense counsel excessive leeway in questioning defendant after his adverse witness testimony.

On March 3, 1984, Griffin, age 37, was admitted to South Suburban Hospital, where she was examined by Dr. R. Singh, a neurosurgeon, who advised a laminectomy. This surgical procedure was performed by Dr. Singh on March 14, 1984, assisted by Dr. S. Kumar, a general surgeon, and Dr. R. Palaniappan, an anesthesiologist.

During the surgery, Griffin sustained a sudden and dramatic loss of blood pressure, frequently a symptom of massive internal bleeding. During the post-operative period, Griffin remained in shock, requiring transfusions of blood and other fluids. On March 15, 1984, the day after surgery, Dr. Kumar discovered a “murmur,” a noise in the abdomen, which was further evidence of a vascular injury in that area. Dr. Subram was called in as a vascular specialist, to consult on Griffin’s condition at 10:30 a.m., March 16, 1984. Dr. Subram found the patient in serious condition, in shock, with evidence that her liver and kidneys were failing.

Dr. Subram considered, among other possibilities, that the patient’s deteriorating condition was the result of a vascular injury, suffered during surgery. He heard the murmur previously recorded by Dr. Kumar. He noted the findings of a hematologist indicating the “possibility” of internal bleeding, but did not order the recommended CAT scan to confirm the findings. He did not attempt or dictate surgical intervention to repair the injury at that time or at any time during the next 17 hours, until Griffin’s death at 3:20 a.m., March 17,1984.

Dr. Subram was of the opinion that Griffin could not withstand an operation until and if her coagulopathy, the ability of her blood to clot, was improved through further transfusions of blood and platelets. The level of platelets can be accelerated by using “packs,” a concentration of platelets, but Dr. Subram did not administer such “packs” to Griffin until 9 p.m., nearly 12 hours after he first examined her.

Griffin arrested at 9:50 p.m. and was revived. Dr. Subram did not then consider taking her to surgery. Although he admitted that there are many instances in which a doctor would operate on a patient in less than optimal conditions in order to correct the source of the instability, Dr. Subram did not believe that was necessary in Griffin’s case. He was of the opinion that, following the vascular injury, an arteriovenous fistula had formed. An “AV fistula,” according to him, is a temporary connection between an injured artery and vein which closes the circulatory system and prevents further massive bleeding. He admitted he never had performed surgery to correct an AV fistula. He did not consult with any other vascular surgeon.

Before trial, a settlement was reached between plaintiff and all parties named in the complaint, except for Dr. Subram.

Plaintiff moved in limine to preclude any testimony regarding the alleged negligence or medical malpractice of any other physician, person or institution, and sought to confine the issue at trial to what Dr. Subram did, or did not do, during the period of 10:30 a.m., March 16, 1984, to 3:20 a.m., March 17, 1984. The motion was denied. Plaintiff thereafter moved to reconsider, arguing that: (1) Dr. Subram could not rely on a defense that a third party previously or concurrently may have committed negligence; (2) allowing testimony that other physicians were also negligent invited the jury to improperly apportion loss and render a compromise verdict, contrary to Illinois law; and (3) any defense must rest on proof that Dr. Subram was free of negligence. The motion was denied.

The trial began March 6, 1991. During his opening statement, defense counsel introduced the theory of his case that Griffin’s prior treating physicians, alone, violated the standard of care by failing immediately to detect, diagnose and repair the vascular injury which apparently occurred during the surgical procedure. Plaintiff’s objections to a conclusion not based upon expert opinion and defendant’s further speculation that the other doctors “didn’t want to acknowledge” the presence of bleeding were overruled.

Dr. Subram was called by plaintiff as an adverse witness. Plaintiff questioned defendant with the frequent use of leading questions. When defense counsel questioned him, counsel continued the use of leading questions, as upon cross-examination. Plaintiff objected to the continued use of leading questions by the defense. Plaintiff was overruled, the court explaining that, in This view, since plaintiff had been permitted to lead the witness, defense counsel could do so as well.

Plaintiff also objected to defense counsel improperly eliciting from defendant opinions concerning areas of medicine in which he had no expertise; that were based upon previously undisclosed literature; and that were beyond the scope of the adverse examination. Plaintiff’s request for a sidebar hearing, to consider the correctness of the court’s ruling, was denied.

Dr. Philip Haid testified as plaintiff’s expert. In his opinion, defendant violated the standard of care in the specialty of vascular surgery by failing to operate on Griffin in a timely manner to correct the vascular injury which occurred during surgery. He believed the patient had a 60% chance of recovery with corrective surgery, but had no chance of survival without such a procedure. It was Dr. Haiti’s opinion that Griffin would have had a normal life expectancy had she survived the suggested corrective surgery.

During cross-examination of Dr. Haiti, defense counsel introduced a compilation of figures, selected by counsel from Griffin’s hospital records, in the form of a large chart. The chart was marked as defendant’s exhibit No. 4, for identification. The figures on the chart represented the measure of patient’s hemoglobin, hematocrit and platelets before, during and after surgery. Dr. Haiti agreed that such figures were indicators of whether or not a patient is bleeding, but disagreed with the contention that the apparent stabilization of hemoglobin and hematocrit, following transfusions, meant that Griffin was not actively bleeding, or that an AV fistula had formed. Dr. Haiti testified that the autopsy report showed no evidence of an AV fistula.

Dr. James Schuler testified as defendant’s expert. He agreed with defendant’s conclusion that an AV fistula had formed and was not, of itself, a major risk for the patient. Dr. Schuler based his opinion on the history of hematocrit values which had returned to a near-normal level, following transfusions of plasma and platelets. Dr. Schuler concurred with defendant’s decision to postpone surgery because of the apparent bleeding disorder. On cross-examination, Dr. Schuler admitted that emergency surgery can be performed and such bleeding disorders overcome by rapid introduction of fresh plasma and platelets.

At the time the jury retired to deliberate, defendant sought to send to the jury several demonstrative exhibits highlighting portions of hospital reports. Plaintiff’s objection that the exhibits were not in evidence and should be withheld from the jury was sustained, as follows:

“THE COURT: The objection will be sustained. The reason for it is apparently this is material taken from the hospital records and so forth. It’s highlighting the small portion of the hospital records, and all you did was blow them up, and I don’t think it would really help the jury determine the case. I think it will just highlight that particular thing which you possibly blew up.”

While the jury was deliberating, however, the court received a message that the jury wanted to review defendant’s exhibit No. 4, which the court previously had denied admittance in evidence and refused to submit to the jury. Defendant’s exhibit No. 4 for identification is a 30-inch by 40-inch blowup of a chart compiled by defense counsel, summarizing measures of hemoglobin, hematocrit and platelets over a number of days, before, during and after Griffin’s surgery.

Without informing either plaintiff’s or defendant’s counsel of the jury’s request, or summoning them to open court to respond to the jury’s request, the court permitted the exhibit not in evidence to go to the jury room. The record reveals the following colloquy between court and counsel some time after the court did so:

“THE COURT: The one thing I want to the put [sic] on the record before the jury comes back is that the jury did give me a note whereby they wanted one chart and the chart was regarding the, I guess hemoglobin and — -
[PLAINTIFF’S COUNSEL]: Hematocrits?
THE COURT: Yes. And I sent them — I looked through the charts, since they wanted it and we had been talking about it in court, and I took, I believe it was the plaintiff’s exhibit [sic] that had it which had been shown to the jury, and it would be the same as the transcript as far as the Court was concerned so the Court gave them that chart without the permission of either of the attorneys.”

The jury soon thereafter found for defendant and against plaintiff.

Subsequently, plaintiff filed a post-trial motion, with an accompanying memorandum of law, seeking reversal of the verdict and a new trial. The motion identified alleged errors committed by the court on rulings of law and procedure. During argument, plaintiff’s counsel emphasized the court’s refusal to limit testimony concerning the alleged negligence of nonparties and permitting the jury to rely on an exhibit not in evidence, without notifying counsel or conducting a hearing in open court. Plaintiff’s post-trial motion was denied.

I

Plaintiff contends that, based on the facts outlined above, the court abused its discretion in denying his motion for a new trial.

Plaintiff argues that the circuit court erred by failing to notify the parties and conduct a hearing when the jury, during deliberation, requested a defense exhibit not in evidence. Plaintiff maintains that defendant’s exhibit No. 4 for identification was manufactured by defense counsel from hospital records which were themselves hearsay documents not in evidence. Further, the chart was used in an attempt to impeach plaintiff’s expert during cross-examination. As such, plaintiff insists, defendant’s exhibit No. 4 can be considered only a demonstrative or argumentative device that does not rise to the level of reliability to allow it to be admitted into evidence, relying on Esderts v. Chicago, Rock Island & Pacific R.R. Co. (1966), 76 Ill. App. 2d 210, 222 N.E.2d 117, cert. denied (1967), 386 U.S. 993, 18 L. Ed. 2d 339, 87 S. Ct. 1309, which held that written statements used for impeachment purposes may not go to the jury room.

Defendant counters that the exhibit was not manufactured but was intended to separate relevant from irrelevant information in Griffin’s medical records. The information was arranged chronologically and reflected objective laboratory data for hemoglobin, hematocrit and platelet levels. The data were taken from a fairly substantial chart containing immeasurable other irrelevant data. Nothing relevant was deleted.

Defendant further claims that neither the information contained on the exhibit nor the interpretation accorded that information was in dispute and that the court has considerable discretion with respect to which exhibits can be taken to the jury room, relying upon Wetherell v. Matson (1977), 52 Ill. App. 3d 314, 318, 367 N.E.2d 472. In Wetherell, however, the questioned procedure involved X-ray films received in evidence, but not allowed to go to the jury room, the precise opposite to the facts in this case. That case was reversed on other grounds and remanded for a new trial.

Defendant also relies upon section 2 — 1107(d) of the Civil Practice Law, which provides:

“Papers read or received in evidence, other than depositions, may be taken by the jury to the jury room for use during the jury’s deliberation.” (Ill. Rev. Stat. 1991, ch. 110, par. 2—1107(d).)

Defendant urges that because the statute is written in the disjunctive, “papers read or received in evidence *** may be taken *** to the jury room,” this court may interpret that language and give it the requisite “plain and ordinary meaning.” The exhibit was clearly a “paper read *** in evidence” and, consequently he suggests, it was within the circuit court’s discretion to permit the exhibit to go to the jury room during deliberations.

Defendant’s contention flies in the face of the circuit court’s initial ruling, denying admission in evidence of the exhibit. One cannot do indirectly that which has been prohibited directly. Further, the challenged exhibit, used by the experts to explain the bases for their opinions, is not admissible as substantive evidence. There is a considerable difference between admitting medical records as evidence and recognizing medical records as the bases for expert opinion. In Henry v. Brenner (1985), 138 Ill. App. 3d 609, 486 N.E.2d 934, relied upon by defendant, the medical records were not allowed in evidence. There the court explained the problems inherent in Federal Rules of Evidence 703 and 705, which do not create additional exceptions to the hearsay rule, but were designed to broaden the scope of expert testimony. They may not be used as vehicles for the admission of otherwise inadmissible evidence. This point also was made in People v. Anderson (1986), 113 Ill. 2d 1, 495 N.E.2d 485, which held that underlying facts or data may be offered not for their truth, but only for the limited purpose of explaining the basis for the expert’s opinion. Further, as asserted in plaintiff’s reply brief here, “[i]n most cases, the trial judge gives the jury a limiting instruction to that effect. That was not done in this case.” See, e.g., Brenner, 138 Ill. App. 3d at 615.

Defendant nevertheless argues that the medical values summarized in his exhibit No. 4 were accurate, were not challenged, nor objected to by the plaintiff. It is true that no challenge or objection to its limited use to that point was made by plaintiff; however, the exhibit was never offered in evidence for the truth of its contents.

Defendant invites this court to review the evidence. This appeal is not brought under the Pedrick standard (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504), however, which would require this court to scrutinize the medical evidence. (Mielke v. Condell Memorial Hospital (1984), 124 Ill. App. 3d 42, 48, 463 N.E.2d 216.) Rather, this appeal charges an abuse of discretion by the circuit judge in refusing to grant a new trial on the basis of certain erroneous evidentiary and procedural rulings that prejudiced plaintiff’s right to trial on the evidence. (Mehochko v. Gold Seal Co. (1966), 66 Ill. App. 2d 54, 213 N.E.2d 581.) The circuit court’s action here in making the unilateral decision to provide the jury with the challenged exhibit in and of itself must be deemed reversible error. In this regard the supreme court in People v. Beck (1922), 305 Ill. 593, 598-99, 137 N.E. 454, made the following instructive observations:

“All this the bill states occurred after the jury had retired and in the absence of the defendant and his counsel. It is not stated that the jury were brought into open court, but even if they were, the occurrence is not relieved of its objectionable features. Neither the defendant nor his counsel was present. No opportunity was given to object to the rulings of the court or to present instructions in behalf of the defendant or to ask for a modification of those given by the judge. The defendant and his counsel were excluded from participation in this part of the trial. So far as they were concerned the proceedings were secret and ex parte, and their only information in regard to them was derived from hearsay after the event.”

That the exhibit was prejudicial to plaintiff’s case, standing as evidence without an opportunity for rebuttal had it been admitted, cannot be doubted. Defendant himself notes that it was “absolutely crucial” to his theory of the case. Once it is demonstrated, as here, that matter not in evidence was submitted for consideration by jurors, the burden shifts to the nonmoving party to demonstrate that there was no reasonable likelihood of prejudice; otherwise, prejudice is presumed and a motion for a new trial must be granted. (Heaver v. Ward (1979), 68 Ill. App. 3d 236, 242, 386 N.E.2d 134.) Defendant here does not show how the challenged exhibit was not prejudicial to plaintiff when, as defendant admits, the information contained in the exhibit was “absolutely crucial” to his theory of the case. It is on this point that Lawson v. G.D. Searle & Co. (1976), 64 Ill. 2d 543, 356 N.E.2d 779, relied upon by defendant, must be distinguished. In Lawson, the court found that the irrelevant content of a government booklet, although detrimental to the plaintiff, was not crucial to the issues and, therefore, not prejudicial. Also, in Lawson, the booklet was received in evidence.

II

Plaintiff next finds error in the court having allowed defense counsel to ask leading questions of Dr. Subram following plaintiff’s examination under section 2—1102 of the Civil Practice Law (Ill. Rev. Stat. 1991, ch. 110, par. 2—1102 (section 2—1102)) and to attempt to establish his defense during this questioning.

Under section 2—1102 plaintiff was permitted to examine Dr. Subram by asking leading questions. Thereafter, defense counsel questioned his client as though upon cross-examination. It is well settled that defense counsel in such a situation has the right to examine but not to cross-examine a defendant who has testified as an adverse witness under section 2—1102. The rule is set forth in Edwards v. Martin (1954), 2 Ill. App. 2d 34, 41, 117 N.E.2d 864:

“In numerous cases it has been held that a party called for examination under section 60 [now section 2—1102] of the Civil Practice Act does not become a witness of the adverse party calling him and he is, therefore, not subject to cross-examination as an ordinary witness. He may be examined by the opposing party only on matters to which he has testified upon the examination made by the party calling him. Horner v. Bell, 336 Ill. App. 581; La Prise v. Carr-Leasing, Inc., 326 Ill. App. 514; Combs v. Younge, 281 Ill. App. 339.”

See E. Cleary & M. Graham, Handbook of Illinois Evidence §607.4 (5th ed. 1990); R. Hunter, Trial Handbook for Illinois Lawyers, Civil §28.3 (6th ed. 1989).

It is also improper for a party, during examination of an adverse witness, to endeavor to elicit evidence which goes to establish his own case. (Suich v. H. & B. Printing Machinery, Inc. (1989), 185 Ill. App. 3d 863, 541 N.E.2d 1206.) The adverse examination of Dr. Subram by plaintiff focused on what he did or did not do during the time Griffin was under his care. Defense counsel, in his examination, questioned Dr. Subram on the events that occurred before he saw Griffin, including details of the laminectomy; massive bleeding; the procedure to be followed in the event of a vascular injury; and mortality of a patient who is not treated immediately. In Darling II v. Charleston Community Memorial Hospital (1964), 50 Ill. App. 2d 253, 319-20, 200 N.E.2d 149, 182, aff’d (1965), 33 Ill. 2d 326, 211 N.E.2d 253, cert. denied (1966), 383 U.S. 946, 16 L. Ed. 2d 209, 86 S. Ct. 1204, the court held:

“In that further examination, following the plaintiff’s cross-examination under section 60 [now section 2 — 1102], the defendant might examine this witness as to matters tending to explain or qualify the testimony given on cross-examination, but not as to new matters not brought out on the cross-examination or as to matters constituting part of the defendant’s defense; the scope of the further examination is largely in the discretion of the Trial Court, but it should not be so extended as to interject the defense into the plaintiff’s case at that stage of the trial — the orderly procedure of a trial does not sanction that: Horner v. Bell (1949), 336 Ill. App. 581, 84 N.E.2d 672. The defendant’s questions involved here were more properly related to matters constituting a part of the defendant’s defense, rather than tending to explain or qualify the testimony given on cross[-]examination ***.”

Other errors alleged need not be addressed in view of our disposition of this appeal.

For the reasons stated, this cause must be reversed and remanded for a new trial.

Reversed and remanded.

McCORMICK and DiVITO, JJ., concur.