author: JUSTICE KNECHT

text:
    ALBERTS BONNIE BRAE, INC., Plaintiff-Appellee, v. DON FERRAL, d/b/a The Dean Hills Tree Farm, Defendant-Appellant.
    Fourth District
    No. 4 — 89—0156
    Opinion filed September 14, 1989.

      Donald A. Behle, of Lincoln, for appellant.
    Warren Peters, of Lincoln, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff Alberts Bonnie Brae, Inc. (Brae), an Illinois corporation, sold defendant Don Ferral (Ferral) a piece of used nursery equipment. Ferral contended the equipment was defective and stopped payment. Brae sued to recover the sale price and prevailed. Ferral appeals and we affirm.

This action began on August 5, 1988, when plaintiff Brae filed a contract action against defendant Ferral, doing business as The Dean Hills Tree Farm, to recover the sale price of the used nursery equipment. Ferral responded with an affirmative defense based on an alleged breach of both express and implied warranties concerning the nursery equipment. On November 29, 1988, after a bench trial the Logan County circuit court entered judgment in favor of plaintiff for the sale price in the amount of $12,500 plus costs. Ferral then filed a motion to vacate and reconsider. On January 20, 1989, after a hearing, the circuit court denied the motion. Ferral filed a timely notice of appeal.

In 1988, to meet business demands, Ferral decided to mechanize the tree extraction process in his nursery. He contacted Wayne Alberts (Alberts), president of Brae, regarding a sale advertisement for some used nursery equipment. The advertisement offered a tree spade mounted on an articulated tractor for the price of $12,500. The advertisement indicated the tree spade had “dug less than 400 trees” and the tractor engine had been “completely overhauled.”

On March 13, 1988, after Ferral made a brief on-site inspection, he again contacted Alberts to inform him he would purchase the equipment. In turn, Alberts agreed to promptly deliver the equipment, without charge, to Ferral at his nursery. The prompt delivery was important to Ferral because of a large order for trees. On March 15, 1988, after Alberts had unloaded the equipment at the nursery, Ferral requested he stay and demonstrate its operation to his employees. Alberts then used the tree spade to dig up several varieties of evergreen trees. At this demonstration, Ferral requested Alberts adjust the placement and spacing of the individual blades on the tree spade. With the assistance of a nursery employee, Alberts made minor adjustments to the equipment in accordance with the recommendations of the manufacturer. Ferral approved these adjustments and issued Alberts a check for the sum of $12,500.

After operating the equipment on the next day, Ferral determined the root systems of the trees were damaged in extraction thus preventing commercial resale for transplantation. Unable to make further adjustments in the equipment, he stopped payment on the issued check and sent written notice of contract revocation to Alberts. On March 18, 1988, Ferral attempted, without success, to return the equipment to Alberts. Shortly thereafter, Ferral returned the used equipment to the manufacturer and purchased new equipment for the sum of $12,300.

The issue on appeal is whether Ferral established any breach of warranty as an affirmative defense.

This contract action is governed by the Uniform Commercial Code (Code) (Ill. Rev. Stat. 1987, ch. 26, par. 1 — 101 et seq.). The Code provides:

“Acceptance of goods by the buyer precludes rejection of the goods accepted and if made with knowledge of a non-conformity cannot be revoked because of it *** but acceptance does not of itself impair any other remedy provided by this Article for non-conformity.” (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 607(2).)

(See also Ill. Rev. Stat. 1987, ch. 26, par. 2 — 608(1).) Therefore, where the sold goods are somehow defective, the buyer may plead breach of warranty (see Ill. Rev. Stat. 1987, ch. 26, pars. 2 — 313, 2 — 314, 2— 315) as an affirmative defense in a contract action.

At trial, Ferral maintained Alberts had breached an express warranty as to the condition of the used nursery equipment. (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 313.) In contrast to the sales advertisement, Ferral alleged the tree spade had actually been used to dig more than 400 trees. To support this allegation, Ferral called two witnesses, a nursery employee and a sales representative for the manufacturer, to testify to the mechanical defects in the nursery equipment. Even without discounting the credibility of these witnesses for bias, their testimony is not sufficient to prove any breach of this express warranty. First, the nursery employee had no previous experience in operating or repairing a tree spade. Second, the sales representative testified the tree spade did not have any device to record the number of uses of the equipment. The sales representative also testified the defects in the tree spade could be attributed, in part, to either an inexperienced operator or to improper use of the equipment on even a single occasion. Given the equivocal nature of the testimony of these witnesses, the judgment of the circuit court is not against the manifest weight of the evidence.

Ferral also maintained Alberts failed to make effective adjustments in the nursery equipment. After careful review of the record on appeal, we find Alberts complied with this express warranty in a reasonable manner. Upon delivery of the nursery equipment, Ferral requested Alberts adjust the placement and spacing of the individual blades on the tree spade. Alberts voluntarily made minor adjustments to the equipment. Ferral then approved these adjustments and issued Alberts a check in payment. On the next day, Ferral stopped payment on the check and sent written notice of contract revocation to Alberts. Under these factual circumstances, Ferral denied Alberts any real opportunity to make lasting adjustments in the nursery equipment.

Ferral lastly maintained Alberts had breached an implied warranty as to the condition of the used nursery equipment. (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 315.) He alleged the tree spade was not fit for the particular purpose of digging evergreen trees. This contention is without merit. There is no implied warranty of fitness for a particular purpose where the buyer has had a reasonable opportunity to examine the goods for defects prior to their acceptance under the sale contract. (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 316(3)(b).) With used equipment, the buyer must generally accept those defects ordinarily arising from its prior use in business operations. After inspecting the used nursery equipment for such defects, Ferral requested Alberts adjust the blades on the tree spade. He then approved these adjustments and issued Alberts a check in payment. Thus, Ferral relied on his own business judgment in deciding to purchase the used nursery equipment in its then existing condition. See Sass v. Spradlin (1978), 66 Ill. App. 3d 976, 384 N.E.2d 464.

Ferral also maintains he revoked his acceptance of the spade within a reasonable time and the trial court refused to consider this revocation. The trial court found the defendant had not proved any breach and there was no basis for revocation. We need not address the timeliness of defendant’s purported revocation, because the evidence, as viewed by the trial court, established the equipment was not nonconforming and the buyer could thus not revoke after acceptance. Further, to the extent the equipment was nonconforming, the defendant accepted it with that knowledge and in that condition.

In a contract action, the findings of the circuit court will not be set aside on review unless they are clearly contrary to the manifest weight of the evidence. As the trier of fact, the circuit court is in a superior position to sort out the evidence and weigh it than is a court of review. (Docas v. G.A.D., Inc. (1980), 84 Ill. App. 3d 883, 886, 406 N.E.2d 75, 78.) Under the circumstances here, it is not sufficient to show Ferral had expected to operate the used nursery equipment in some other manner than as had been demonstrated by Alberts. We agree with the circuit court Ferral did not sustain his burden of proving any breach of warranty as an affirmative defense. The judgment below is in accord with the evidence.

Affirmed.

McCULLOUGH, P.J., and STEIGMANN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN BURNS, Defendant-Appellant.
    Fourth District
    No. 4 — 88—0874
    Opinion filed September 28, 1989.
    Rehearing denied October 23, 1989.

      Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Following a jury trial in McLean County, the defendant, Melvin Burns, was convicted of unlawful delivery of 15 grams or more of a substance containing cocaine, a Class X felony (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2)), and sentenced to 17 years’ imprisonment. On appeal, the defendant contends the trial court erred in denying his motion for substitution of judge. The defendant further contends evidence of his statement to the police was improperly admitted as it was made in the process of an unsuccessful plea negotiation.

At trial, David Lampert testified as a confidential source for the police. Lampert had agreed to make a drug purchase from defendant in exchange for the police dropping an investigation against Lampert concerning theft of a motorcycle. Lampert's testimony was that he knew defendant from a local health club and made a previous drug purchase from him. Lampert had been “shorted” one-half gram of cocaine in the previous purchase which defendant had promised to make up for in his next delivery. Lampert testified defendant phoned him on May 23, 1988, stating he had the cocaine and “Kim” from the health club would meet Lampert at the Kroger grocery store in Bloomington at 4:30 p.m. She would have IV2 ounces of cocaine plus the “shortage.” Lampert was to pay Kim $1,000 at the time of the delivery. A little later, Kim Kloster called Lampert stating where she would be and what she would be wearing. Lampert previously knew Kim Kloster from the same health club. That afternoon Lampert and undercover officer Mike Bernardini drove to the Kroger store and picked up Kim Kloster. Lampert introduced Officer Bernardini as a friend and money source. Kloster handed the package of cocaine to Officer Bernardini, who gave it to Lampert to weigh. At this time, Officer Bernardini arrested both Kloster and Lampert.

Department of Criminal Investigation (DCI) special agent Michael Bernard™ corroborated Lampert’s testimony. He added that Lampert had asked Kloster if she had seen defendant that day to which Kloster replied affirmatively. Officer Bernard™ also testified Kloster told Lampert all of the drugs were there, what had been requested and “a little more.” Officer Bernard™ testified that he performed a field test which showed the presence of cocaine, and then testified as to the chain of custody.

Kim Kloster testified for the State. She was charged with the same Class X felony as defendant, but agreed to testify truthfully in exchange for a reduction to a Class 1 felony, six months’ jail time and 48 months’ probation. She testified she knew defendant from work and from living in the upstairs apartment of his home. Defendant asked her to deliver the cocaine to Lampert because if defendant got caught he would do a lot of time, but if she got caught she would get probation. Kloster further testified that on May 19, 1988, defendant had given her the package of cocaine. She kept the cocaine with her at all times until delivery to Lampert. Other than denying she knew anything about a prior shortage, Kloster’s testimony corroborated that of Lampert and of Officer Bernard™.

DCI agent Gary King also testified for the State. He was one of the officers performing surveillance at the time of the drug transaction and assisted in the arrest of defendant. En route to jail, defendant told Officer King “he could help out,” that he could “do in someone in Wisconsin” as long as he were not “thrown in jail.”

The defense presented no evidence. The jury deliberated and quickly returned a verdict of guilty. The court entered judgment on the verdict. Defendant was later sentenced to 17 years’ imprisonment.

This case was placed on the trial call of Judge Dearborn on July 11, 1988. On July 19, 1988, defendant filed a motion for substitution of judge which in its entirety stated:

“Your petitioner, MELVIN BURNS, by his attorney Paul G. Lawrence, respectfully represents to this Honorable Court that he is the defendant in this case, now pending before The Honorable Luther Dearborn.
Your petitioner further represents that he is charged with the offense of Unlawful Delivery of a Controlled Substance, and that if convicted, he could be sentenced for a Class X felony.
Your petitioner further represents that this petition has been filed within ten (10) days after the matter was placed on the trial call of the Honorable Luther Dearborn in accordance with Illinois Revised Statutes, Chapter 38, Section 114 — 5(a).
WHEREFORE, petitioner respectfully prays this Honorable Court to allow a substitution of judges and to enter an order transferring the cause to the Honorable Chief Judge William Caisley of the Eleventh Judicial Circuit for reassignment.”

An amended motion for substitution of judge was filed on July 28, 1988, and added only one new paragraph to the previous motion:

“Your petitioner further represents that he fears that he will not receive a fair and impartial trial in this cause if he is tried before the Honorable Luther Dearborn before whom this cause is pending because the said judge is prejudiced against him.”

No action was taken on this case by the court between the assignment date of July 11, 1988, and the filing of the amended motion on July 28, 1988. On August 2, 1988, defense counsel argued the amended motion for substitution of judge. The trial court denied the motion, stating allegations of prejudice must be made within the statutory 10-day period. Defense counsel filed and argued a motion to reconsider, which trial court denied.

We affirm the decision of the trial court on this issue. Defendant sought an automatic substitution of judge under section 114 — 5(a) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 5(a)). The statute reads:

“Within 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of that judge on the ground that such judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion. The defendant may name only one judge as prejudiced, pursuant to this subsection; provided, however, that in a case in which the offense charged is a Class X felony or may be punished by death or life imprisonment, the defendant may name two judges as prejudiced.” (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 5(a).)

To obtain an automatic substitution a defendant need only meet four requirements. These requirements are: (1) the motion is made within 10 days after the case is placed on the judge’s call; (2) the motion may name only one judge unless the defendant is charged with a Class X felony, in which case he may name two judges; (3) the motion must be in writing; and (4) the motion must allege the trial judge is so prejudiced against the defendant that defendant cannot receive a fair trial. Though defendant’s original motion was timely made, it failed to allege any prejudice. The allegation of prejudice was not made within the statutory 10-day period. In construing a statute, the language should be given its plain and ordinary meaning. People v. Brown (1982), 92 Ill. 2d 248, 442 N.E.2d 136.

Defendant has failed to meet the minimal requirements for automatic substitution. Though it is well established substitution of judge provisions are to be liberally construed, the statute cannot be construed so as to contravene its express provisions. (People v. Goss (1960), 20 Ill. 2d 224, 170 N.E.2d 113.) To be entitled to relief, the defendant must comply with the express requirements of the statute. (People v. Clay (1984), 124 Ill. App. 3d 140, 463 N.E.2d 929.) Defendant’s failure to comply with the statute bars the automatic substitution.

The defendant’s contention the absence of an allegation of prejudice is a mere technical error which should be excused is without merit. Defendant cites People v. Howell (1974), 16 Ill. App. 3d 989, 307 N.E.2d 172, aff’d (1975), 60 Ill. 2d 117, 324 N.E.2d 403. In Howell, defendant’s motion for substitution of judge was not in writing and was not made within 10 days after the case had been placed on the trial call of the judge. The Fifth District Appellate Court opined these technical defects may be overlooked under a liberal construction of the statute. However, defendant’s motion was properly denied as the trial judge had already ruled on several substantive issues in the case. The appellate court affirmed the decision of the trial court and the opinion of the Illinois Supreme Court did not address this issue. The comment in Howell was dicta and we decline to adopt that view.

This case is also distinguishable from People v. Dieckman (1949), 404 Ill. 161, 88 N.E.2d 443, relied on by the defendant. In Dieckman, the trial judge was assigned three days before trial. On the trial date, defendant filed a motion for substitution which failed to comply with the statutory requirement of an affidavit and the motion was denied. The defendant’s requests to file a substitute motion and for a continuance were denied and the case proceeded to trial immediately. On appeal, it was held the trial court erred in denying defendant’s motion to file a substitute motion since such action precluded defendant from making a timely application in proper form. The court cited the circumstances of the case. This holding is inapplicable to the case at bar. Defendant here was not precluded from filing a timely application in proper form or denied a reasonable opportunity to file a petition in proper form. The defendant had 10 days to file the proper motion and had failed to. Additionally, defendant’s case did not proceed to trial immediately under the same circumstances as Dieckman.

The failure to allege prejudice is a failure to comply with the statute. A defendant who wishes to avail himself of an automatic substitution must meet the requirements of the statute. Defendant here did not do so, and the trial judge properly denied his motion.

Defendant’s second issue concerns his statement to the police offering to assist the police if he was not put in jail. This statement was made to Officer King immediately after defendant’s arrest and while en route to the police station. King reported defendant’s statement as being “he could help out,” that he could “do in someone in Wisconsin” as long as he were not "thrown in jail.” Defendant contends his statement was an attempt to engage in plea negotiations and as such was inadmissible evidence. He maintains the admission of this testimony violated Supreme Court Rule 402(f) (107 Ill. 2d R. 402(f)) and denied him his right to a fair trial. The rule provides:

“If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal proceeding.” (107 Ill. 2d R. 402(f).)

The purpose of this rule is to encourage plea negotiations by eliminating the risk of having the jury hear statements the defendant made while negotiating his plea. (People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229; People v. Tennin (1984), 123 Ill. App. 3d 894, 463 N.E.2d 202.) However, not every statement making reference to a deal or omission of jail time is necessarily a plea discussion for purposes of the rule. (People v. Williams (1987), 151 Ill. App. 3d 1010, 503 N.E.2d 1090; People v. Austin (1984), 123 Ill. App. 3d 788, 463 N.E.2d 444; Tennin, 123 Ill. App. 3d at 898, 463 N.E.2d at 205.) The test to determine a plea-related statement is (1) whether the accused exhibited a subjective expectation to negotiate a plea, and (2) whether the expectation was reasonable under the totality of objective circumstances. (Friedman, 79 Ill. 2d at 351, 403 N.E.2d at 235.) Such a determination is fact specific. In Friedman, the supreme court held the defendant made an inadmissible plea-related statement when he said he wanted to make a deal and stated generally the bargaining terms. The Friedman court held:

“Before a discussion can be characterized as plea related, it must contain the rudiments of the negotiation process, i.e., a willingness by defendant to enter a plea of guilty in return for concessions by the State.” Friedman, 79 Ill. 2d at 353, 403 N.E.2d at 236.

The Second District Appellate Court in Tennin (123 Ill. App. 3d at 897, 463 N.E.2d at 205) refused to characterize as plea related the defendant’s nonspecific statement, “I want to make a deal.” The Tennin court held:

“Defendant here has not made manifest any indication to plead guilty or what the terms are under which he would be willing to bargain. We cannot assume that every statement by a defendant to the effect of ‘making a deal’ is plea-related. There are other possible explanations underlying a motivation to make a ‘deal,’ such as a defendant negotiating for his release without a cash bond or on a low bond, or the dropping of charges against him in return for information he might supply. Not all statements made in hopes of some concession are necessarily plea discussions.” Tennin, 123 Ill. App. 3d at 898, 463 N.E.2d at 205.

The rudiments of a negotiated plea are lacking in this case. There is no indication defendant intended or expected to enter a guilty plea to the charges for which he was arrested. There is no indication defendant ever intended to give a statement to the police about his involvement in the offense or that defendant intended to confess his offense. The record only indicates defendant was seeking to bargain for his immediate release. The record does not indicate defendant demonstrated a subjective expectation to negotiate a plea in his statement to Officer King. Accordingly, defendant’s statements cannot be characterized as plea negotiations and are therefore admissible.

The prosecutor’s reference to this evidence was proper. Defendant’s statements were properly before the jury and constituted an appropriate subject for commentary and argument. The prosecutor’s remarks did not deprive defendant of a fair trial.

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

Affirmed.

SPITZ and GREEN, JJ., concur.


author: JUSTICE STEIGMANN

text:
      In re ESTATE OF MARY NICHOLS, Deceased (Beatrice Ferguson, Plaintiff-Appellant v. Emily Rose Zeller, Indiv. and as Ex’r of the purported will of Mary Nichols, et al., Defendants-Appellees).
    Fourth District
    No. 4 — 89—0178
    Opinion filed September 14, 1989.

      Barber, Segatto, Hoffee & Hines, of Springfield (Barry 0. Hines and Bernard G. Segatto III, of counsel), for appellant.
    Bellatti, Fay, Bellatti, Beard & Carpenter, of Jacksonville (Eddie Carpenter, of counsel), for appellees James W. Ferguson and Emily Rose Zeller.
    Harry G. Story, of Jacksonville, for appellee Emily Rose Zeller as executor of the will of Mary Nichols.
    Brown, Hay & Stephens, of Springfield (Eric L. Grenzebach and Denise M. Druhot, of counsel), for appellees Charles S. Ferguson and Rosemary Fellhauer.
   JUSTICE STEIGMANN

delivered the opinion of the court:

The primary issue this appeal presents is whether a person who continues her long-term residence in a home which she inherits under a will is estopped from contesting the provisions of that will. We hold she is not.

Mary Nichols (decedent) died on January 6, 1987. In her will she left to Beatrice Ferguson, her daughter and the plaintiff in this case, two tracts of real estate in Jacksonville, Illinois. On one of those tracts, located on Chilton Street (the Chilton residence), was the home in which plaintiff had lived since 1967. During her mother’s lifetime, plaintiff never paid any rent on the Chilton residence, nor was there any lease agreement.

Decedent’s will was admitted to probate on January 13, 1987. On July 10, 1987, plaintiff filed a petition to contest decedent’s will, alleging undue influence (count I), undue influence by a fiduciary (count II), and intentional interference with an expectancy (count III). After a hearing in December 1987, all counts of the petition were dismissed, and plaintiff was given 21 days to amend and to add an additional count IV, alleging breach of contract to make a will. After further hearings, the court dismissed counts I and IV. Count I is not before us on this appeal. The court held that count IV was barred by the statute of limitations and was not saved by the doctrine of “relating back” to the earlier counts. After the court denied defendants’ motions to dismiss plaintiff’s amended counts II and III, defendants answered those counts. In their answers, they alleged the affirmative defense of election by the plaintiff to accept a benefit under the will, thereby estopping her from bringing this will contest action. In December 1988, the defendants filed motions for summary judgment which the court granted, finding that the plaintiff’s election to accept benefits under the will left no genuine issue as to any material fact on the defendants’ affirmative defense. Plaintiff appeals from the order granting summary judgment as to counts II and III and from the order dismissing count IV. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.

From February 19, 1987, through July 12, 1987, the plaintiff corresponded with both Harry Story, the attorney for the estate, and the Elliott State Bank concerning the payment of taxes and the mortgage on the Chilton residence. Although plaintiff never received a direct request from the estate that she pay the rent and taxes, the estate did not make those payments. (Copies of these letters are attached to this opinion as an Appendix.)

In granting summary judgment to the defendants on counts II and III, the trial court found that plaintiff had accepted benefits under the will and therefore was estopped from contesting it.

This doctrine of estoppel is longstanding in Illinois. In Fishburn v. Green (1920), 291 Ill. 350, 353, 126 N.E. 115, 116, the supreme court stated the following:

“One who accepts a provision for his benefit under a will is precluded from attacking other lawful provisions of the same will. (Elmore v. Carter, 289 Ill. 560.) By accepting its benefits he admits the instrument to be the will of the testator, and he cannot both take under it and make a claim against its terms.”

In In re Estate of MacLeish (1977), 46 Ill. App. 3d 957, 961, 361 N.E.2d 618, 620, a case similar to the one before us, the court discussed the doctrine of estoppel due to election under a will and stated the following:

“This proposition has been reiterated many times and emanates from the case of Wilbanks v. Wilbanks (1856), 18 Ill. 17. The Wilbanks case also states, at page 21, that ‘The party is entitled to a full knowledge of the circumstances, and of the situation and value of the estates or provisions made; and an election made in actual ignorance of material facts will not preclude the party from exercising the right anew upon obtaining full information.’ ”

In the present case, the trial court found that there was no genuine issue of material fact regarding the claim that the plaintiff was estopped from contesting the will due to her election to obtain benefits under it. This finding was based upon the conduct and statements of the plaintiff with regard to the Chilton residence as well as the court’s finding that “plaintiff at no time, during the more than two years since decedent’s death, attempted to tender those benefits to the estate in the form of rental payments or yielding up of possession of the [Chilton residence].” The conduct and statements of the plaintiff which the trial court refers to are essentially those contained in the letters which appear in the Appendix of this opinion.

Defendants contend that plaintiff behaved as if the Chilton residence were her own property. We think this is a fair description. However, the defendants then claim that because of this behavior, plaintiff demonstrated an election to accept the benefit of the Chilton residence left to her under the will. We disagree.

The salient feature of this case is that plaintiff had lived in the Chilton residence for 20 years without making any payments at all. That plaintiff should have come to regard the Chilton residence as her home seems to us entirely reasonable under these circumstances. The letters she sent to the estate’s attorney and the Elliott State Bank reveal only her concern that the status quo regarding her residence continue into the foreseeable future. The estate’s failure to make mortgage or tax payments clearly threatened plaintiff’s security, and her concerns were justified.

The doctrine of estoppel with which we are dealing in this case is, in most instances, eminently sound. Applying this doctrine to these facts, however, is unjust and unfair. Accordingly, we hold that estoppel does not apply where, as here, a person contesting a will (1) continues to live in a residence in which she had been living for several years, and (2) makes payments and expresses concern to ensure that she will be able to reside in that home for "the foreseeable future. As defendants conceded during oral arguments, if we were to hold otherwise on these facts, plaintiff would be forced to move out of her home in order to bring an action contesting the will. We cannot accept that result.

By this holding, we are placing an affirmative duty upon executors of estates to take whatever steps they deem necessary in order to demonstrate that an occupant of a residence that passes to that occupant under a will, such as plaintiff in this case, has knowingly and intelligently elected to receive the benefits given to her under that will.

We should not be understood, however, as requiring or even condoning an action by an executor to evict such an occupant. An eviction action might be both unfair and contrary to the testator’s intent. This case does not present us with the question of what action the executor should take; accordingly, we leave that question’s resolution to another day.

Plaintiff filed her motion for leave to add count IV on October 10, 1987. That count alleged a breach of contract by the decedent to make a will. The decedent’s will was admitted to probate on January 13, 1987, thus the time for presenting claims on the estate expired July 13, 1987. (See Ill. Rev. Stat. 1985, ch. 110½, par. 8 — 1; Ill. Rev. Stat. 1985, ch. 110, par. 2 — 616(b).) On defendant’s motion, the trial court dismissed count IV as not timely filed. Plaintiff appeals, contending that count IV relates back to the original three-count pleading which had been timely filed. We disagree and affirm the trial court’s ruling.

This court discussed the relation-back doctrine in some detail in Cunningham v. Hasbargen (1983), 118 Ill. App. 3d 1019, 455 N.E.2d 839, and indicated that the principal inquiry concerns the degree of similarity between defendant’s conduct as alleged in the original counts and defendant’s conduct as alleged in the added counts. The policy underlying this doctrine, which provides an exception to an applicable statute of limitations, is to ensure fairness to the litigants rather than unduly to enhance the technical considerations of common law pleading. At the same time, courts must be mindful that one of the purposes of a statute of limitations is to provide defendants with sufficient opportunity to investigate factors upon which their liability may be based while relevant evidence is still ascertainable. (See Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121, 302 N.E.2d 64; Peoples Gas Light & Coke Co. v. Austin (1986), 147 Ill. App. 3d 26, 497 N.E.2d 790.) The following remarks of the supreme court in Robinson v. First State Bank (1983), 97 Ill. 2d 174, 185, 454 N.E.2d 288, 294, are particularly instructive in the context of this case:

“It seems obvious that the purpose of section 8 — 1 of the Probate Act of 1975 is to limit the time within which the validity of a will may be questioned and to create stability in the administration of estates. The appellate court cited Pedersen v. Dempsey (1950), 341 Ill. App. 141, wherein the court stated that the reasons for the time limit in filing a will contest [were] ‘the pressing importance of securing an orderly settlement of estates, to prevent embarrassment to creditors and others, and to avoid as much confusion as possible in the vast amount of property rights and titles that pass through probate.’ 341 Ill. App. 141, 143.
Given the facts in this case, if we were to allow the plaintiffs to maintain their tort action, we would be giving them a second bite of the apple and defeating the purpose of the exclusivity of a will contest under Section 8 — 1.”

We view these remarks as counseling against the liberal interpretation that might normally be applied to the application of the relation-back doctrine when a challenge to a probated will is at issue. With these decisions in mind, we analyze the facts in the present case.

Counts I, II, and III of the amended complaint, respectively, state causes of action for undue influence, undue influence by a fiduciary, and intentional interference with an expectancy. These counts generally allege the interference of plaintiff’s relatives in the affairs of decedent and in the making of decedent’s will. Each count has common paragraphs of factual allegations.

In contrast, count IV addresses a different set of factual allegations which have no common factual basis with the other counts outside of ownership of the property and the creation of the will itself. The facts alleged in count IV deal only with the decedent and the plaintiff. This count is based entirely on an alleged promise by decedent to plaintiff that, in return for plaintiff’s release to decedent of certain inherited property, decedent in her will would leave plaintiff 50% of decedent’s property.

This count is not an extension of the first three counts, nor have defendants been given in those first three counts the information necessary to prepare a defense to count IV. The information contained in counts I, II, and III involves only the relationships and transactions between the decedent and the defendants. In count IV the information necessary to prepare a defense concerns the relationship between the decedent and the plaintiff. The making of the will is the sole nexus common between all of these counts. Accordingly, the relation-back doctrine is not applicable.

The judgment of the circuit court dismissing count IV is affirmed. The order granting summary judgment to the defendants on counts II and III is reversed, and this case is remanded for further proceedings as to counts II and III.

Affirmed in part; reversed in part and remanded with directions.

LUND and SPITZ, JJ., concur.


author: JUSTICE LUND

text:
    BEARL L. HOUSTON, Plaintiff-Appellant, v. QUINCY POST 5129, Veterans of Foreign Wars, et al., Defendants-Appellees.
    Fourth District
    No. 4 — 89—0177
    Opinion filed September 14, 1989.

      David E. Rapoport, of Katz, Friedman, Schur & Eagle, of Chicago, for appellant.
    Babette B. Rokusek, of Keefe, Gorman & Brennan, of Quincy, for appellees.
   JUSTICE LUND

delivered the opinion of the court:

Plaintiff was injured when a bingo sign fell on him at the Veterans of Foreign Wars (VFW) hall. Plaintiff filed suit against the VFW and another member of the organization alleging negligence. Upon motion of the VFW, the trial court dismissed the lawsuit against VFW ruling, as a matter of law, plaintiff was an employee of the VFW at the time of the injury and his suit was therefore barred by the exclusive remedy provisions of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, pars. 138.5, 138.11). On appeal plaintiff contends the trial court erred in its determination that, as a matter of law, he was an employee of the VFW. We agree and reverse.

The facts may be gleaned from plaintiff’s complaint and the various pleadings attendant to defendant’s motion to dismiss under section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619).

Plaintiff, a member of the bingo committee of the VFW, was helping conduct a bingo game on the VFW premises on September 8, 1987. His duties included calling the bingo numbers and straightening up the premises after the game concluded. During the cleanup process, a nine-foot-long, four-foot-high, one-foot-thick bingo sign, weighing approximately 200 pounds, fell on him, severely injuring his left arm.

Claimant had been a member of the bingo committee for approximately two years prior to the accident and had worked the games periodically selling bingo cards, calling the numbers, and cleaning up the tables and stage from which the sign which injured him fell. In return for this activity, claimant received a $4-per-night credit toward his lifetime VFW membership dues. This credit had been instituted approximately one year before the injury when a new bingo chairman was selected by the organization. Prior to that time, bingo committee members who worked the games received nothing in return for their services. Plaintiff had performed this same sort of volunteer work for the Eagles and Elks Clubs during the previous 15 years but no monetary remuneration of any sort was provided him by those organizations.

The VFW’s motion to dismiss alleged claimant was an employee at the time of the injury by virtue of the credit toward dues payment provided him for services. In addition, defendant maintained it controlled and supervised claimant’s work because the bingo committee chairman assigned specific duties to the various members who worked the bingo games. This assertion was substantiated by the deposition of codefendant Jack Wolkitt, who testified the bingo committee chairman expressly assigned him specific tasks. He was also told by Wolkitt he would be replaced if those tasks were not performed satisfactorily. Wolkitt received 50$ an hour for his services which sum was applied as a credit toward dues or items which could be ordered through the VFW catalog. Defendant also presented the affidavit of the deputy commander of the post which stated a workers’ compensation policy purchased by defendant was in effect on the date of the accident.

In contrast, plaintiff stated in his affidavit in opposition to the motion to dismiss that no member of the bingo committee had particular duties and all members would help out whenever assistance was needed. Similarly, plaintiff maintained no one was given instructions on what needed to be done since all members knew what was required of them and no members of the committee were under the direct supervision of the bingo chairman. Plaintiff also averred he never expressly or impliedly, orally or in writing, agreed to enter into a contract for hire as an employee of the VFW and never considered himself as such. Finally, plaintiff stated he was not on the VFW payroll, never had income or social security taxes deducted by the organization, and did not fill out any government-required employment forms.

In determining claimant was an employee, as a matter of law, the trial court relied on the following factors: claimant received a $4 credit per night toward his lifetime membership, defendant Wolkitt established he held a comparable remunerated position while both worked under the direction of the bingo committee chairman. Upon this basis the trial court dismissed the complaint as to VFW. We note, parenthetically, the allegations of the complaint directed to defendant Wolkitt are not before us on this appeal.

A motion for involuntary dismissal under section 2 — 619(a)(9) is properly brought to determine questions of employment and the scope of employment such as those presented here. (Kinney v. Continental Assurance Co. (1976), 42 Ill. App. 3d 263, 356 N.E.2d 131.) As the historical and practice notes to that section indicate:

“The purpose of this section is primarily that of affording a means of obtaining at the outset of a case a summary disposition of issues of law or of easily proved issues of fact, with a reservation of jury trial as to disputed questions of fact.” (Ill. Ann. Stat., ch. 110, par. 2 — 619, Historical and Practice Notes, at 662 (Smith-Hurd 1983).)

Unlike a motion for summary judgment, upon which the trial court is not permitted to decide disputed questions of fact, section 2 — 619(c) provides that “[i]f a material and genuine disputed question of fact is raised the court may decide the motion upon the affidavits and evidence offered by the parties.” Ill. Rev. Stat. 1987, ch. 110, par. 2— 619(c); see also North Park Bus Service, Inc. v. Pastor (1976), 39 Ill. App. 3d 406, 349 N.E.2d 664.

The definition of “employee” in the Workers’ Compensation Act makes it clear that the basis of the relationship is a “contract for hire, express or implied, oral or written.” (Ill. Rev. Stat. 1987, ch. 48, pars. 138.1(a)(2), (b)(2).) The existence of such a relationship is determined by an application of the principles governing the formation of other contracts and must reflect a meeting of the minds expressed by some offer on the part of one to employ or to work with another and an acceptance on the part of the other. (Crepps v. Industrial Comm’n (1949), 402 Ill. 606, 85 N.E.2d 5.) One does not enter the employ of another without at least an implied acquiescence in the relationship. To thrust upon a worker an employee status to which he has never consented might well deprive him of valuable rights under the compensation act, notably the right to sue his own employer for common law damages. (McHugh-Brighton v. Industrial Comm’n (1969), 42 Ill. 2d 52, 245 N.E.2d 480.) No single fact controls the existence or nonexistence of an employment relationship. Many factors, such as the right to control the manner in which the work is done, the method of payment, the right to discharge, the skill required and the work done, and the furnishing of tools, material, and equipment, have evidentiary value and must be considered. (Village of Creve Coeur v. Industrial Comm’n (1965), 32 Ill. 2d 430, 206 N.E.2d 706.) Significantly, the supreme court has stated the existence of such a relationship is, in every case, primarily a question of fact and can only become a question of law where there is no conflict in the evidence and but one conclusion can reasonably be drawn therefrom. Crepps, 402 Ill. 606, 85 N.E.2d 5.

Under this standard we conclude the trial court erred in determining claimant was an employee of the VFW, as a matter of law. The status of members of volunteer organizations is discussed in some detail by Professor Larson. Examination of this aspect of workers’ compensation law reveals the issue is not free from doubt:

“A rather shadowy but nevertheless real line separates the true gratuitous employment situations from those in which the ‘payment’ takes the form of discharging an obligation of substantial cash value voluntarily assumed. The most familiar example of the latter category is that of the church member who ‘works out’ his pledge toward construction of a church. There are two ways to look at such a relationship. One is to say, as New Jersey has held in the case of a trustee working off his church construction pledge at the rate of $1.50 an hour, that this is merely a case of donating services and hence not a contract of hire in the compensation law sense. [Armitage v. Trustees of Mount Fern Methodist Episcopal Church (1954), 33 N.J. Super. 367, 110 A.2d 154.] The other is to say that, in effect, the worker is being paid, in that he is receiving credit against an obligation. To reach this result it is only necessary to conceive of the process in two stages rather than one. The first stage is the assumption of the obligation, in the form of pledging cash or services to the church. This assumption is uncoerced, but, once undertaken, is binding. Pennsylvania in this situation invoked a theory familiar to the law of charitable pledges generally when it held: ‘The mutual promises made by other members *** to render services *** would be a valid consideration ***.’ [Schreckengost v. Gospel Tabernacle (1959), 188 Pa. Super. 652, 149 A.2d 542.] The second stage is then to say that, since the obligation exists (never mind whether originally assumed voluntarily), the receipt of credit of measurable monetary value in release of that obligation is sufficiently tangible payment to support a contract of hire. ***
* * *
This two-stage approach can be helpful in other situations analogous to the church construction cases. For example, in an Iowa case [Usgaard v. Silver Crest Golf Club (1964), 256 Iowa 453, 127 N.W.2d 636] a country club had imposed on its members an assessment of either five hours of labor or five dollars. Note the similarity between this option and the option, discussed in §47.32, between paying road taxes or working them out. There is a difference of course: The club member could escape such assessments by resigning from the club, whereas resigning from taxes is notoriously difficult. Nevertheless, under the two-stage analysis it does not really matter whether the obligation is mandatory throughout, as in the case of taxes, or quasi-voluntary, as in the case of voluntary club membership followed by mandatory assessments, or voluntary both in the sense of voluntary church membership and voluntary pledging of church contributions. What counts is that, at the time of injury, an obligation has come into force whose discharge can stand as remuneration for labor.” (Emphasis in original.) 1C A. Larson, Workmen’s Compensation §47.41(a), at 8 — 335 through 8-337 (1980).

As can readily be seen, depending upon the abstract principles one applies, opposite results obtain. Furthermore, in a case such as this, where the evidence is in sharp dispute, it cannot be said that only one conclusion as to the existence of an employment relationship can reasonably be drawn within the meaning of Crepps. For example, it is undisputed that the $4 credit provided to plaintiff was instituted unilaterally without any bargained-for consideration and there is no evidence the VFW could not unilaterally discontinue the practice if it chose without any recourse afforded to plaintiff. In addition, although there was testimony the bingo chairman assigned particular duties to particular individuals, which, to a certain extent, implies the right to control the performance of those duties, there was also evidence the members did whatever had to be done even if that meant performing tasks not specifically assigned to them. In the face of plaintiff’s unrebutted assertion he never held himself out as or believed himself to be an employee of the VFW, the mere fact an agent of the VFW assigned particular duties to him and others would not negate, as a matter of law, plaintiff’s assertion the work was voluntary.

We also believe the mere existence of a workers’ compensation policy, without more, has little bearing on the issue before us. In this case, the actual policy was never before the trial court nor was it demonstrated plaintiff was considered an employee and maintained on the payroll of the VFW for the purpose of determining the premium for compensation policy coverage. While it is true a policy which insures coverage for all compensation liability without relevant restrictions is not limited to employees who are used as the basis for computing the premium (Emma v. Norris (1970), 130 Ill. App. 2d 653, 264 N.E.2d 573), the fact a putative employer does not include an employee within the group used to make that determination is relevant evidence tending to show that the employer did not consider the individual to be an employee. (De Rosa v. Albert F. Amling Co. (1980), 84 Ill. App. 3d 64, 404 N.E.2d 564.) In the absence of any specifics concerning the policy, no material conclusions can be drawn from this fact as to the existence of any employment relationship between plaintiff and VFW.

The cases cited by defendant in support of its position are clearly distinguishable. For example, in Byrne v. Stern (1982), 103 Ill. App. 3d 601, 431 N.E.2d 1073, the issue was not whether the plaintiff was an employee. Rather, the question was by whom was he employed. Similarly, in Anderson v. Panozzo (1979), 71 Ill. App. 3d 19, 389 N.E.2d 12, plaintiff never denied in his complaint or deposition that he .was an employee of defendant. His only assertion was the facts of the case precluded this finding as a matter of law.

In this case, plaintiff vigorously disputes the existence of any employment relationship. The distinction is significant because in the absence of a mutual assent to enter a contract of hire, gratuitous or voluntary undertakings do not give rise to a legally enforceable claim for payment for such services arising from an implied contract since one cannot agree to be an unpaid volunteer and, after the fact, assert the existence of an implied contract of hire. Wolverine Insurance Co. v. Jockish (1980), 83 Ill. App. 3d 411, 403 N.E.2d 1290.

Indian Hill Club v. Industrial Comm’n (1923), 309 Ill. 271, 140 N.E. 871, is also inapposite. There, the supreme court found that a caddy was an employee of the golf club at which he performed his tasks under the specific direction of the golfer. In doing so, the supreme court affirmed the decision of the Industrial Commission, which concluded, on the facts, claimant was an employee. The evidence garnered in support of that conclusion indicated the caddy believed he was employed by the golf club and there was substantial evidence he worked under the direct control of the caddy master, who determined which caddies would be called to work on any specific day. The caddy master also had the exclusive right to determine who would work and the caddies had no control over those decisions. Here, in contrast, the evidence was unrebutted that members of the bingo committee could work or not work as they chose and were under no compulsion to do so. There is also no evidence approval had to be sought prior to working the games.

Finally, defendant’s citation to Village of Creve Coeur v. Industrial Comm’n (1965), 32 Ill. 2d 430, 206 N.E.2d 706, is not controlling. In that case, a volunteer fireman was injured. The record showed the firemen were paid a flat rate of $3 for appearing at a fire. The city provided the equipment and no taxes were withheld. There was no requirement that a volunteer attend a fire call but, while at a fire, the firemen were under the direct orders of the fire chief. The village board also had the power to discharge a fireman. The evidence also showed the village carried a compensation policy, which specifically covered firemen, and maintained payroll records showing payment to the firemen as employees. Village of Creve Coeur is distinguishable. The relationship between the village and the fireman was clearly intentional. Moreover, the term “volunteer” firemen, in context, obviously means “part time” firemen. In addition, as the supreme court noted, the determination by the Industrial Commission these individuals were employees was a question of fact rather than one of law. In this case, no such intent to form a relationship is clear. Also, the nature of the duties is vastly different. Calling bingo games is activity incidental to one’s membership in a fraternal organization, not the undertaking of a fundamental civic function on a part-time basis.

Defendant’s final argument is that certain alleged discrepancies between plaintiff’s deposition testimony and the assertions made in his affidavit filed in response to the motion to dismiss should be taken as judicial admissions against plaintiff. We have examined these alleged conflicts and find them essentially to be semantic in nature. Even were we to conclude an actual conflict in the testimony existed which should be resolved against plaintiff, the discrepancies are not such as to be determinative of the issue raised on appeal.

From the sharply disputed evidence which was presented to the trial court, several conflicting, but nevertheless reasonable inferences as to the existence of an employment relationship can be drawn. While we express no opinion as to whether an employment relationship exists in the present case, it is clear under the supreme court standard in Crepps, the answer is not one of law on the record now before us.

Accordingly, the judgment of the circuit court of Adams is reversed and remanded for further proceedings.

Reversed and remanded.

SPITZ and STEIGMANN, JJ., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
    ALMA A. NEATEROUR, Plaintiff-Appellant, v. WILLIAM HOLT et al., Defendants-Appellees (Blessing Hospital, Defendant).
    Fourth District
    No. 4 — 89—0067
    Opinion filed September 28, 1989.
    Rehearing denied October 26, 1989.

      Leahy Law Offices, of Springfield (Cheryl Redfield Jansen and Mary Lee Leahy, of counsel), for appellant.
    Keefe, Gorman & Brennan, of Quincy (Jerry L. Brennan, of counsel), for appellees.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Alma Neaterour appeals a summary judgment order entered for defendant, Dr. William Holt, pursuant to section 2 — 1005 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005). The trial court found plaintiff’s action was barred by the statute of limitations as set forth in section 13 — 212 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212). Plaintiff contends issues of fact remain disputed; therefore, summary judgment was improper. Alternatively, plaintiff argues her action is timely under the continuous treatment doctrine, and defendant should be estopped from raising the statute of limitations as a defense in this action. We affirm.

This appeal concerns only summary judgment entered for defendant William Holt. On April 8, 1981, plaintiff’s left leg gave out from under her and she was unable to walk without assistance. Plaintiff went to Blessing Hospital and was told that her hip was broken. On that day, plaintiff became a patient of the defendant, an orthopedic surgeon. On April 9, 1981, defendant performed surgery on plaintiff’s left hip, nailing it together with a sliding compression screw. Prior to surgery, plaintiff asked defendant to put in a total new hip and not a pin because she had heard that the pin would have to be eventually replaced. After surgery and while still in the hospital, plaintiff stated in her deposition defendant told her that the surgery did not go as planned and that the ball of her hip was drilled off-center.

Plaintiff continued under defendant’s care and treatment after her surgery and visited defendant monthly at Quincy Clinic from May 20, 1981, through May 10, 1982. At the first visit on May 20, 1981, plaintiff told defendant she was in a lot of pain. On June 30, 1981, defendant told plaintiff that her hip was well healed and it looked good. On August 12, 1981, plaintiff mentioned to defendant the possibility of seeing another doctor in order to find out the cause of her constant pain. Defendant got very angry and, according to the plaintiff, told plaintiff to trust him and have faith in him.

On October 12, 1981, defendant told plaintiff he wanted her to see his associate, Dr. Gilchrist. Prior to the appointment with Dr. Gilchrist, plaintiff went to the University of Missouri Medical School and saw doctors Harper and Burchard. Harper told plaintiff that the ball of her left hip was dying and that it would never heal. Harper told plaintiff that the surgery would have to be done over and she needed a total hip replacement. As to her appointment with Dr. Gilchrist, October 15, 1981, plaintiff stated Gilchrist looked at the X rays defendant had taken but did not tell her anything. Sometime between October 26, 1981, and November 9, 1981, plaintiff told defendant of the opinion of the Missouri doctors. Plaintiff stated defendant got angry and said that Missouri X rays were no better than his and he did not need to talk to the Missouri doctors. According to the plaintiff, defendant continued to tell her to have faith in him and trust him. She therefore decided to continue in defendant’s care.

On March 11, 1982, plaintiff saw another orthopedic surgeon, Andre Edmonds, at the request of her insurance company. Edmonds reviewed plaintiff’s X rays and noticed that plaintiff’s left leg was longer than her right leg. According to the plaintiff, Edmonds stated he could not see how any doctor could make plaintiff’s leg that much longer. He also told plaintiff that removal of the pin in her hip would alleviate her discomfort somewhat but he would not perform the surgery until plaintiff was released from defendant’s care.

Plaintiff’s last treatment with defendant was on May 10, 1982. At that time, plaintiff stated defendant told her he did not see the need for further surgery but he would remove the pin in plaintiff’s left hip if plaintiff wanted him to. No further treatment or procedures were recommended by the defendant.

In August 1982, plaintiff returned to the University of Missouri Medical School for tests. At that time, Harper told plaintiff that her hip was dead due to avascular necrosis. Avascular necrosis is a common post-operative complication in fractures of the femoral neck in the hip joint. Approximately 25% of patients with hip fractures like plaintiff’s develop this complication. Avascular necrosis is a deterioration of the bone caused by an interference with the blood supply which results in the death of the bone. In September 1982, Harper performed a total hip replacement on plaintiff.

On May 10, 1984, plaintiff filed suit against defendant, Quincy Clinic, and Blessing Hospital. Blessing Hospital was dismissed from this action with prejudice on December 20, 1985. Plaintiff alleged defendant negligently repaired her hip fracture and was negligent in his post-operative treatment. In his answer filed on September 12, 1986, defendant denied liability. On March 7, 1988, defendant was granted leave to file an affirmative defense to plaintiff’s action. Defendant alleged that plaintiff’s action was barred by the statute of limitations applicable to medical malpractice actions. On June 10, 1988, defendant filed a motion for summary judgment on the grounds that plaintiff’s action was barred by the statute of limitations. On December 22, 1988, the trial court granted defendant’s motion.

The trial court reasoned that the plaintiff knew of her injury no later than March 11, 1982, when plaintiff saw Dr. Edmonds, who commented on the fact that plaintiff’s left leg was much longer than the other leg and he could not see how any doctor could have done that. The trial court also noted that prior to the March 11, 1982, visit, plaintiff admitted in her deposition that she was told by the Missouri doctors her hip was dying, that further surgery was necessary, and that her pain was caused by avascular necrosis and bursitis. The trial court likened this case to Gaudynski v. Corbett (1980), 81 Ill. App. 3d 910, 401 N.E.2d 1218, Conley v. Springfield Clinic (1985), 130 Ill. App. 3d 369, 474 N.E.2d 421, and Lesko v. Zuffante (1987), 165 Ill. App. 3d 823, 520 N.E.2d 810.

Plaintiff argues the trial court erred in granting defendant’s motion for summary judgment because genuine issues of material fact remain in dispute. Specifically, plaintiff maintains it is disputed whether plaintiff knew or should have known of her injury prior to May 10, 1982, the last day of her treatment with defendant. Defendant argues that the facts are undisputed; plaintiff knew of her injury before May 10, 1982. Defendant points to various admissions made by the plaintiff in her deposition where plaintiff stated she was aware that something was wrong with defendant’s treatment after plaintiff’s first visit to the doctors in Missouri.

Section 2 — 1005 of the Civil Practice Law provides that summary judgment is appropriate where:

“[T]he pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).)

Use of summary judgment procedure is encouraged as an aid in the expeditious disposition of lawsuit but it is a drastic means of disposing of litigation. Therefore, it should only be allowed when the right of the moving party is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.) When considering a motion for summary judgment, the court must construe all evidence strictly against the movant and liberally in favor of the opponent. In re Estate of Whittington (1985), 107 Ill. 2d 169, 483 N.E.2d 210.

Section 13 — 212(a) of the Code of Civil Procedure (Code) provides:

“[N]o action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first ***.” (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212(a).)

In those cases where substantial intervals exist between the time a plaintiff should have known of the physical injury and the time at which the plaintiff should have known of its negligent cause, the term “injury” in section 13 — 212(a) includes also knowledge that the injury was wrongfully caused. (Witherell v. Weimer (1981), 85 Ill. 2d 146, 156, 421 N.E.2d 869, 874.) It is at this point that the burden is on the injured person to inquire further as to the existence of a cause of action. Witherell, 85 Ill. 2d at 156, 421 N.E.2d at 874.

Generally, when a plaintiff knew or reasonably should have known of her injury and its wrongful cause is a question of fact for the trier of fact. (Witherell, 85 Ill. 2d at 156, 421 N.E.2d at 874; Kaufman v. Taub (1980), 87 Ill. App. 3d 134, 140, 410 N.E.2d 114, 119.) However, it becomes a question of law where the facts are undisputed and only one conclusion can be drawn from them. Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171, 421 N.E.2d 864, 868-69; Conley, 130 Ill. App. 3d at 370, 474 N.E.2d at 422.

We agree with the defendant that the salient facts are contained in the plaintiff’s discovery deposition. In her deposition, plaintiff stated that she went to the University of Missouri Medical School in October 1981 because she was not getting any better. Plaintiff further stated that based on what the Missouri doctors told her, she thought her constant pain was caused by the fact that her hip was dying. Plaintiff stated that from the time of her surgery in May 1981 to the time of her second surgery in September 1982, she was in pain all of the time; it kept getting worse every week and month; and she was frequently awake at night. Plaintiff also stated that when she left Missouri in October 1981, she felt that defendant might have done something wrong. In addition, plaintiff stated she began to feel the defendant was not treating her properly after defendant “flared up” and got angry with her when she mentioned seeing other doctors. Plaintiff stated she continued to see defendant for treatment despite her feeling the treatment was improper because defendant told her to trust him and have faith in him. Plaintiff stated that defendant continued to tell her the fracture was healed but she knew it was not healed because she would not be in such pain if it was healed.

Plaintiff’s statements in her deposition placed this case in a similar posture to that present in Hayes v. Weyrens (1973), 15 Ill. App. 3d 365, 304 N.E.2d 502, and Conley v. Springfield Clinic (1985), 130 Ill. App. 3d 369, 474 N.E.2d 421. In Hayes, the plaintiff, a nurse, filed suit in September 1969 against her doctor for negligently prescribing a drug in October 1967 which made her ill. In her discovery deposition, plaintiff admitted that she ceased taking the drug in May 1967 because she knew the drug was causing her illness. The trial court granted motions for summary judgment, and the appellate court affirmed after finding no triable issues. While noting plaintiff’s experience and background is a relevant consideration in determining when plaintiff should have discovered the negligent cause of her injury, the court held:

“The unequivocal answers of the plaintiff constitute admissions which standing alone entitle the defendants to summary judgment as a matter of law.” (Hayes, 15 Ill. App. 3d at 367, 304 N.E.2d at 503.)

Likewise, in Conley, the plaintiff’s deposition established that she knew of her injury within several weeks after the surgery. Therefore, a complaint filed more than two years later was barred by the statute of limitations.

In addition to the evidence of plaintiff’s belief she was receiving improper treatment, plaintiff also stated in her deposition that the Missouri doctors in October 1981 told her that her hip was not healing but dying, a diagnosis directly contrary to defendant’s reassurances to the plaintiff. We conclude this evidence should have put plaintiff on notice of her injury before May 10, 1982, the last day of her treatment with Holt.

Plaintiff offers an alternative argument based on the continuous treatment doctrine. The continuous course of treatment doctrine recognizes that a cause of action as to any act occurring within the continuous treatment period does not accrue until the end of the entire course of treatment. (Chestnut v. Adeli (1985), 131 Ill. App. 3d 24, 28, 475 N.E.2d 260, 262-63.) In Jacobson v. Natonson (1987), 164 Ill. App. 3d 126, 517 N.E.2d 304, the court noted that the doctrine traditionally operates to toll the four-year repose period contained in section 13 — 212(a) of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 13— 212(a)) during a continuous course of treatment for a specific condition, and would commence running on the day of the last treatment. The repose provision states:

“[B]ut in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.” (Ill. Rev. Stat. 1987, ch. 110, par. 13— 212(a).)

At the same time, the two-year limitation period would commence during or after the course of treatment “at such time as plaintiff discovered that a wrongful injury had been inflicted on her.” (Emphasis added.) (Jacobson, 164 Ill. App. 3d at 132, 517 N.E.2d at 308.) Thus, a plaintiff has, as an outside limit, four years from the end of the treatment within which to file suit unless prior to that time the plaintiff knew or should have known of the injury and its possible negligent cause.

Plaintiff urges this doctrine tolls the statute of limitations until the date of the last injury, or when the tortious acts ceased, which is May 10, 1982. Initially, defendant contends plaintiff has waived this issue because it was not raised in the proceedings below. On the merits, defendant urges the doctrine does not negate the fact that plaintiff admitted she thought she was being treated improperly by the defendant.

Plaintiffs complaint clearly sets forth the continuous treatment by the defendant. In her response to defendant’s motion for summary judgment, plaintiff maintained that throughout her treatment by the defendant she had no notice of his negligent treatment. While plaintiff did not refer specifically to the continuous treatment doctrine, plaintiff’s facts in her complaint and response discuss the issues arising under the doctrine. We conclude plaintiff sufficiently raised this issue in her pleadings in the trial court. Thus, we decline to apply the waiver rule to this issue.

However, we find this doctrine does not alleviate plaintiff’s limitations problem due to the fact that plaintiff admitted in her deposition that she was aware that defendant’s treatment may have been improper before defendant’s course of treatment terminated on May 10, 1982. In her complaint, plaintiff alleged that she first discovered her 'injury in August 1982 when she saw the Missouri doctors a second time. However, this allegation is contradicted by plaintiff’s repeated statements in her deposition that she was advised in October 1981 by the same Missouri doctors that her hip was dying and not healing and a statement that she thought defendant was improperly treating her before May 10, 1982. Under the circumstances, plaintiff’s discovery in 1981 of her injury bars her action against defendant filed on May 10,1984.

Lastly, plaintiff maintains Holt should be barred from raising the statute of limitations as a defense in this case under the doctrine of equitable estoppel. Defendant maintains plaintiff has waived this argument for failure to specifically plead estoppel in a reply to defendant’s affirmative defense. Alternatively, defendant maintains that plaintiff’s own actions in this case do not support equitable estoppel because plaintiff obviously did not rely on defendant’s reassurances when she independently saw Missouri physicians in October 1981.

Equitable estoppel prevents a party from taking advantage of his own wrongdoing. (Witherell v. Weimer (1981), 85 Ill. 2d 146, 158, 421 N.E.2d 869, 875.) It has been applied to prevent a litigant, whose conduct has caused a plaintiff to delay filing suit until after the period of limitations has run, from asserting the statute of limitations as a bar to the action. (Chestnut v. Adeli (1985), 131 Ill. App. 3d 24, 29, 475 N.E.2d 260, 264.) All that is necessary for the doctrine is evidence that the plaintiff reasonably relied on the defendant’s conduct or representations in forbearing suit. (Witherell, 85 Ill. 2d at 159, 421 N.E.2d at 876.) However, where a defendant’s conduct terminated within ample time to allow the plaintiff to still avail himself of any legal rights he may have, the doctrine will not apply. Smith v. Cook County Hospital (1987), 164 Ill. App. 3d 857, 866, 518 N.E.2d 336, 342.

As to defendant’s waiver argument, section 2 — -613(d) of the Civil Practice Law provides:

“The facts constituting any affirmative defense, such as *** estoppel *** and any ground or defense, whether affirmative or not, which, if not expressly stated in the pleading, would be likely to take the opposite party by surprise, must be plainly set forth in the answer or reply.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 613(d).)

The supreme court in Collins v. Collins (1958), 14 Ill. 2d 178, 151 N.E.2d 813, noted that an allegation for estoppel must be pleaded to be available and is considered waived when not alleged. In People ex rel. Skinner v. Graham (1988), 170 Ill. App. 3d 417, 433, 524 N.E.2d 642, 651, this court also held that a party seeking to assert estoppel to bar a statute of limitations defense must plead it and where it is not pleaded, it cannot be invoked. In Skinner, the estoppel issue was raised for the first time on appeal.

Contrary to defendant’s assertions, plaintiff did raise estoppel in her pleadings by alleging in her complaint that she relied on defendant’s expertise and skill and by alleging in her response filed May 31, 1988, that defendant convinced plaintiff to continue in defendant’s care and have trust and faith in him. Plaintiff thereafter argued estoppel in her opposition to defendant’s motion for summary judgment. We conclude plaintiff sufficiently raised this issue in the trial court for us to address the merits of her argument.

Plaintiff seems to suggest that her discovery of the possible negligent cause for her injury is unimportant because defendant sueceeded in convincing plaintiff to remain in his care. This argument ignores the burden imposed on an injured party to investigate the cause of an injury. (Witherell, 85 Ill. 2d at 156, 421 N.E.2d at 874.) Additionally, to prevail on the theory of equitable estoppel, it is incumbent upon the opponent to prove that he or she relied upon some acts or representation of the defendant “and had no knowledge or convenient means of knowing the true facts.” (Emphasis added.) (Pantle v. Industrial Comm’n (1975), 61 Ill. 2d 365, 371, 335 N.E.2d 491, 495.) Here, plaintiff admits she had some facts establishing the cause of her pain, which facts ran contrary to defendant’s representations. Yet, plaintiff stayed in defendant’s care another six months. We note also that plaintiff had ample time to file suit within the limitations period.

Estoppel is ordinarily a question of fact unless there is no dispute of material fact and only one inference can be drawn therefrom. Then, it becomes a question of law. (Pantle, 61 Ill. 2d at 369, 335 N.E.2d at 494.) As the Federal district court in Nutty v. Jewish Hospital (S.D. Ill. 1983), 571 F. Supp. 1050, 1052, quoting Gary-Wheaton Bank v. Burt (1982), 104 Ill. App. 3d 767, 777, 433 N.E.2d 315, 324, noted:

“The lynchpin of the analysis [of equitable estoppel] often is whether a plaintiff’s reliance was in fact reasonable. ‘A party claiming estoppel cannot shut his eyes to obvious facts, or neglect to seek information that is easily assessable, but then charge his ignorance to others.’ ”

For the foregoing reasons, the order of the trial court is affirmed.

Affirmed.

LUND and GREEN, JJ., concur.