author: JUSTICE BARRY PRESIDING JUSTICE STOUDER,

text:
    ROBERT BISHOP, Plaintiff-Appellee, v. SAMUEL T. BAZ, Defendant-Appellant.
    Third District
    No. 3—90—0136
    Opinion filed July 12, 1991.
    Rehearing denied August 16, 1991.
    STOUDER, P.J., and GORMAN, J., specially concurring.

      Stephen J. Heine and Gary D. Nelson, both of Heyl, Royster, Voelker & Allen, of Peoria (Karen L. Kendall, of counsel), for appellant.
    William C. Zukosky, of Urbana, and Edward Zukosky, of Wenona, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiff, Robert Bishop, brought this medical malpractice suit against Dr. Samuel T. Baz, Bishop’s family doctor, in August 1984, after his left foot was partially amputated. Subsequently, both of plaintiff’s legs were amputated below the knee. The matter proceeded to a jury trial in June 1989, which resulted in a verdict for the defendant doctor. Judgment was entered on the verdict. Plaintiff then moved for judgment notwithstanding the verdict and for a new trial. On January 24, 1990, the court granted plaintiff a new trial. Defendant petitioned this court for leave to appeal pursuant to Supreme Court Rule 306 (107 Ill. 2d R. 306), and that petition was granted.

The controlling issue to be decided is whether the trial court erred in ruling that it had committed plain error by failing to exercise its discretion in responding to a jury question asking for clarification of the term “injury” as used in the written instructions. Plaintiff urges us to affirm the lower court’s ruling. In addition, plaintiff asks this court to rule upon his motion for judgment notwithstanding the verdict; to determine whether he is entitled to a new trial because the jury’s verdict is contrary to the manifest weight of the evidence; to determine whether the court erred in granting defendant’s motion in limine to preclude testimony of defendant’s withdrawn expert witness, Dr. Lawrence O’Neal; to determine whether defendant’s counsel’s closing argument was so prejudicial as to constitute plain error entitling plaintiff to a new trial; and to determine whether other evidentiary rulings at trial were erroneous.

A brief factual statement will suffice for purposes of the primary issue. Plaintiff is a victim of juvenile-onset diabetes (Type I), and has suffered from certain complications of the disease. Among other consequences, plaintiff has been hospitalized on occasion for out-of-control blood sugar and has neuropathy, particularly in his feet. In April of 1982, plaintiff was diagnosed by defendant Baz as having an inguinal hernia in need of surgical repair. During this hospitalization, plaintiff brought to defendant’s attention an ulcer on the sole of his left foot for which plaintiff had been receiving treatment by a podiatrist. Defendant undertook to treat the sore, and plaintiff contemporaneously discontinued his visits to the podiatrist.

Despite defendant’s efforts, the sore failed to heal; and by August 1982, the foot was swollen, painful and pus was constantly draining from both the original ulcer and another between the toes that was an extension of the original ulcer. Plaintiff’s wife became disenchanted with defendant on August 30 when defendant recommended plaintiff elevate the foot, keep it warm and take oral antibiotics. Defendant testified that he also told plaintiff on that date that he would have to be admitted to a hospital “as soon as possible.” On earlier visits, defendant had told plaintiff that he did not want to prescribe an antibiotic because he did not want plaintiff to become immune to it. He also had recommended that plaintiff keep his foot down and apply ice. Although defendant had noted in his records on August 30 that the foot was gangrenous, he did not so inform plaintiff and his wife.

On the advice of his wife, plaintiff agreed to seek medical attention for the foot at Rush-Presbyterian-St. Luke’s Hospital (St. Luke’s) in Chicago on September 1, 1982. There, plaintiff was taken into surgery for draining of the infected area and debriding of the dead tissue and was given intravenous antibiotic treatment. After five weeks, plaintiff was released to return home for further bed rest. Plaintiff was taught how to manage the rubber drain placed in the foot and daily flush it out with a sterile solution. Despite these efforts, however, the foot never completely healed; and in March 1983, plaintiff determined to seek help from the Mayo Clinic in Rochester, Minnesota.

The doctors at Mayo’s found that the bone was infected. They performed a partial amputation of the front of the left foot on March 30, 1983. Plaintiff continued to develop sores on the stump and then on his right foot as well. Eventually plaintiff underwent further surgeries at Mayo Clinic to amputate his right leg below the knee in November 1984, and the left leg below the knee in July 1985.

At trial, defendant presented the theory that plaintiff’s diabetes and his own failure or inability to manage the disease was the cause of his injury. The testimony of defendant conflicted in several respects with that of plaintiff and his wife concerning events occurring at the doctor’s office and advice given to plaintiff between April and August 30, 1982. Expert witnesses for each party testified. Based on the facts as recited by plaintiff and his wife, plaintiff’s expert opined that defendant deviated from the applicable standard of care by failing to hospitalize plaintiff, failing to monitor plaintiff’s diabetes and failing to initiate intravenous antibiotic treatment on or before August 30, 1982. Conversely, based on the facts as recalled by defendant, defendant’s expert testified that defendant’s treatment was non-negligent and that plaintiff’s medical problems resulted from the diabetes itself rather than from any action or inaction on defendant’s part.

At the close of the evidence, on motion of defendant, the court ruled that the evidence was insufficient to hold defendant liable for injury to plaintiff’s right leg. The court ruled in plaintiff’s favor on the question of contributory negligence. The only issues given to the jury concerned defendant’s liability and damages for injuries pertaining to plaintiff’s left leg.

During their deliberations, the jury made one written and one oral request. In their written request, the jury stated, “We are at an impasse and we request the records from St. Luke’s Pres. Hosp. to clarify some of the medical information.” After conferring with counsel, the court called the jury into open court and said, “The law prohibits me from giving you any particular portion of the evidence.” The foreperson then made an oral request: “We would like the court’s definition of the word injury as it pertains to the plaintiff. Now in the decision-making process, where you list one, two and three, it states that the plaintiff was injured. We would like to know, is the amputation that is [sic] the injury? Or do we have to define the injury ourselves?”

At that point, the trial judge asked counsel to join him in his chambers to confer. A transcript of the judge’s conference with the attorneys does not appear in the record on appeal; however, the record does disclose that the two attorneys could not agree upon any further instruction and ultimately agreed that the court should give a negative response. The court, accordingly, made the following announcement from the bench: “Ladies and gentlemen, at this time the court is not in a position to give you any further definition of the word ‘injured’ as used in the instruction referred to. Please continue to deliberate using the instructions you have already received.” The jury later returned its verdict in favor of defendant.

In its order granting plaintiff’s motion for a new trial, the court stated,

“At the time it decided to respond to the jury inquiry this Court was of the opinion that it had no discretion to formulate a response to the jury without the agreement of counsel for the plaintiff and the defendant. After reviewing some of the decisions applicable to jury questions, this Court feels that it was required to exercise its discretion in answering the jury similar to the situation in People v. Tansil, 137 Ill. App. 3d 498, 92 Ill. Dec. 314, 484 N.E.2d 1169 (1985). Although the Tansil case involved an inquiry as to evidence in a criminal case, the need to exercise discretion would appear to be even more essential in the instant case where the question concerned the definition of a term in an instruction as to the law which ultimately is the responsibility of the trial judge.
It is clear that the injury referred to in the inquiry [sic] was the legal injury necessary to the existence of a cause of action for negligence and was not the ‘amputation’ mentioned in the inquiry. The failure of the trial judge to respond could have caused the jury to equate the terms injury and amputation which may have resulted in prejudice to the plaintiff.
The Court considers its error in not properly responding to the inquiry of the jury to be plain error for which the Court may grant a new trial even in the absence of an objection by the attorney for the plaintiff.
In his motion the plaintiff requests a new trial because it is his position that the verdict of the jury is contrary to the manifest weight of the evidence. The Court expressly refrains from deciding this question because it is ordering a new trial for the reasons stated herein. However, it seem [sic] appropriate to comment on some aspects of the evidence in this case.
The testimony of the defendant as to many points which are important to his position were contrary to or unsupported by his own notes made at the time of treatment. Suit was not filed until about two years after the treatment in question and the trial was held five years after filing. It appears most unusual for a busy doctor to have a detailed independent memory of specific treatment of or of conversations with a particular patient seven or even two years after the event.
For the reasons stated previously a new trial should be held.”

The standard of review on an appeal from a trial court’s grant of a new trial is whether the trial court abused its discretion in granting the post-trial relief. (Marotta v. General Motors Corp. (1985), 108 Ill. 2d 168, 177-78, 483 N.E.2d 503, 506-07.) The Marotta court, quoting from Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 548-49, explained the standard as follows:

“ ‘Great deference is generally given to decisions of trial judges in granting or denying motions for new trial. [Citations.] A court of review will not reverse the trial court’s decision to grant a new trial merely because it would have come to a different conclusion on the facts. [Citations.] The decision of a trial court to grant a new trial is an exercise of discretion which should not be disturbed unless a clear abuse of that discretion is shown. [Citations.] In determining whether that discretion was abused, the reviewing court will consider whether the jury’s verdict was supported by the evidence and whether the losing party was denied a fair trial. [Citation.]’ ”

In this case, a further test must be applied, however, because of plaintiff’s failure to object either during the trial or in his post-trial motion to the matter upon which the trial court based its new trial order. As recently stated by our supreme court in Gillespie v. Chrysler Motors Corp. (1990), 135 Ill. 2d 363, 375-76, 553 N.E.2d 291, 297, in cases such as this, “we will strictly apply the waiver doctrine unless the prejudicial error involves flagrant misconduct or behavior so inflammatory that the jury verdict is a product of biased passion, rather than an impartial consideration of the evidence.” In other words, the prejudicial error must be “so egregious that it deprived the complaining party of a fair trial and substantially impaired the integrity of the judicial process itself.” (Emphasis in original.) 135 Ill. 2d at 377, 553 N.E.2d at 298, citing Belfield v. Coop (1956), 8 Ill. 2d 293, 134 N.E.2d 249.

Although the supreme court’s opinion in Gillespie was handed down subsequent to the trial court’s ruling in this case, the analysis there applied is grounded in established Illinois law and merits our consideration on appeal. In Gillespie, plaintiff sued for personal injuries suffered when the hood of a van manufactured by defendant fell on his back. A nurse’s note containing a statement inconsistent with plaintiff’s testimony was referred to in testimony during defendant’s case in chief and in defendant’s opening statement and closing argument. Plaintiff failed to object to the testimony during the trial, but because defendant had not called the nurse to testify, plaintiff did object to another reference to the note during defense counsel’s closing argument, and this objection was sustained. The jury returned a verdict in defendant’s favor, and plaintiff moved for a new trial. The trial court granted the motion on the ground that defendant’s repeated references to the hearsay note were sufficiently prejudicial to warrant a new trial.

The appellate court affirmed, finding that the trial court had not abused its discretion; but the supreme court found the appellate court’s analysis faulty. (Gillespie, 135 Ill. 2d at 375, 553 N.E.2d at 296-97.) Applying the afore-cited Belfield test, the supreme court strictly applied the waiver doctrine because the comments referring to the nurse’s note “did not rise to the level of offensiveness that the Belfield exception was designed to address.” 135 Ill. 2d at 377, 553 N.E.2d at 298.

We may assume in this case that the court in fact erred in not exercising its discretion in determining whether to give the jury further guidance. (See, e.g., Hunter v. Smallwood (1975), 28 Ill. App. 3d 386, 328 N.E.2d 344, citing, inter alia, People v. Autman (1974), 58 Ill. 2d 171, 177, 317 N.E.2d 570 (applying jury instruction rules developed in criminal law to a civil case and granting new trial where circuit court failed to exercise discretion in responding to jury inquiry).) We must then apply the Belfield-Gillespie test to determine whether the court abused its discretion in granting a new trial.

The jury was instructed on the elements of negligence in the form presently appearing in Illinois Pattern Jury Instructions, Civil, No. 21.02 (3d ed. 1990):

“The plaintiff has the burden of proving each of the following propositions:
First, that the defendant acted or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent;
Second that the plaintiff was injured;
Third, that the negligence of the defendant was a proximate cause of the injury to the plaintiff.
If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiff. On the other hand, if you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendant.” (Emphasis added.)

The injury at issue was that allegedly arising out of defendant’s treatment of the left foot between April and August of 1982 and culminating with the amputation of plaintiff’s left leg below the knee. With respect to the amputation itself, it was plaintiff’s burden to overcome substantial evidence indicating that that aspect of plaintiff’s injuries might have been caused by subsequent treatment by intervening doctors and/or by the progressive nature of plaintiff’s diabetes. Defendant testified that he had in fact told plaintiff on August 30 that he would require hospitalization for his condition and that he should go to a large hospital. According to defendant, plaintiff stated that he would make his own arrangements. Plaintiff did not dispute that defendant prescribed an oral antibiotic and scheduled plaintiff for another appointment on September 1 in the event plaintiff failed to make the hospital arrangements.

As aforesaid, on September 1, plaintiff went to St. Luke’s, where he was placed on intravenous antibiotics and the foot was surgically debrided and drained. The plaintiff continued under the care of his doctor at St. Luke’s until March of 1983. Plaintiff testified that the ulcer never completely healed during the time he was treated by St. Luke’s. Finally, he decided to discontinue his association with St. Luke’s and seek treatment at Mayo Clinic. In April 1983, plaintiff underwent a partial amputation of his left foot at Mayo Clinic. The sores continued to erupt and become infected, and in July 1985, the leg was amputated.

Defendant’s expert opined that despite all the measures taken by defendant between April and August 1982, and plaintiff’s other doctors thereafter, plaintiff’s disease ultimately reached the point where both of the defendant’s legs required amputation. Testimony admitted at trial established that this consequence was neither uncommon nor necessarily the result of medical negligence in diabetes cases complicated by neuropathic extremities.

Under these circumstances, plaintiff was hard-pressed to prove that there was a reasonably close causal connection between defendant’s conduct and the 1985 amputation. Plaintiff’s proof of damages rested almost exclusively on a finding that the 1985 amputation was the compensable injury. It is noteworthy that plaintiff’s counsel’s closing arguments stressed the ultimate amputation as the injury to be considered without squarely addressing the more difficult issue of proximate causation with respect to that injury.

It is thus understandable that the jury was confused and asked for further elucidation of the issues instruction. While we might speculate that the fairness of the trial may have been compromised if the jury in fact equated the term “injury” with “amputation,” we nonetheless cannot say that the integrity of the judicial process was substantially impaired by the court’s deferral to counsel’s stipulated negative response. As indicated above, this was a classic “battle of the experts” malpractice suit, with competent evidentiary support for both parties’ diametrically opposite positions on the question of liability. None of the doctors or hospitals treating plaintiff during the period between September 1982 and July of 1985, during which time plaintiff lost his lower right leg as well, were joined as defendants. The jury under the circumstances could have reached the permissible conclusion, given the prognosis of any Type I diabetic with neuropathy in the lower extremities, that defendant’s care of plaintiff’s left foot was no more negligent than the treatment plaintiff received without complaint from St. Luke’s and Mayo Clinic between September 1982 and July of 1985. Notwithstanding the trial court’s evaluation of defendant’s credibility, the jury’s verdict is not contrary to the manifest weight of the evidence.

Because the failure of the trial judge to exercise his discretion in responding to the jury’s inquiry here is not an error so egregious as to fall within the Belfield-Gillespie exception, we find that plaintiff waived the issue by failing to object either during the trial or in his post-trial motion. Accordingly, we hold that the trial court abused its discretion in granting a new trial for “plain error.” In so holding, we specifically decline to rule on the question of whether giving a negative response would have been error if the court had so exercised its discretion. That question is not properly before this court and our comments herein are not intended as an expression of our opinion on it.

Having found that the trial court erred in granting plaintiff a new trial, we must next address plaintiff’s arguments in the alternative for relief. In advancing his additional arguments, plaintiff correctly states that all rulings challenged in the post-trial motions, even if not addressed by the trial court in post-trial proceedings, are properly before this court. (107 Ill. 2d Rules 306(a)(2), 366(b)(v); Turner v. Commonwealth Edison Co. (1978), 63 Ill. App. 3d 693, 380 N.E.2d 477.) We have considered each of plaintiff’s additional issues praying for the entry of a judgment notwithstanding the verdict and a new trial. Based on our review of the record, we find no ground for relief. Suffice it to say, there is ample evidence supportive of the jury’s verdict in defendant’s favor, and we find the court’s evidentiary rulings within the bounds of its discretion.

With respect to Dr. O’Neal’s testimony, the trial court noted that plaintiff was given ample opportunity to depose him or call him to testify as an expert on his own behalf after defendant gave notice that he was withdrawing the doctor as an expert witness for the defense. On these facts, the court did not err in granting defendant’s motion in limine precluding plaintiff from presenting evidence that Dr. O’Neal’s discovery deposition was a basis for opinions of the parties’ testifying experts and that Dr. O’Neal’s treatise on the diabetic foot was authoritative and readily available to defendant. In addition, there was no basis for giving the jury a “missing witness” instruction as suggested by plaintiff.

Finally, any error in defense counsel’s closing argument did not rise to the level of reversible error and was waived by plaintiff’s failure to lodge a timely objection.

For these reasons, we reverse the judgment of the circuit court and herewith enter judgment on the jury’s verdict.

Reversed; judgment entered.

PRESIDING JUSTICE STOUDER,

specially concurring:

I agree with the majority of the court that the judgment of the trial court granting a new trial should be reversed. However, the majority seems to either hold or assume that the trial court erred in failing to respond affirmatively to the jury’s questions. If the majority’s opinion may be construed as merely assuming for the purpose of argument that the trial court’s action in declining to offer additional instruction to the jury “might” be error, then I would agree with the decision completely. To the extent that the opinion suggests the trial court’s action was an abuse of discretion and hence erroneous but not sufficiently erroneous to constitute plain error, then I disagree with the holding.

In my opinion the court acted properly in declining to instruct the jury further and whatever confusion resulted was not a failure of instruction but a failure of argument. Plaintiff’s emphasis on amputation both as evidence and argument before the jury may have tended to obscure the issues, but in the final analysis, the jury recognized the substance of the facts the plaintiff was required to prove and found such proof wanting.

GORMAN, J., concurs.


source: Caselaw Access Project

author: JUSTICE SLATER

license: Public Domain

text:
      In re GARY THOMPSON, Asserted to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Gary Thompson, Respondent-Appellant).
    Third District
    No. 3—90—0754
    Opinion filed July 19, 1991.
    Penelope S. Karnes and Jeff M. Plesko, both of Guardianship & Advocacy Commission, of Carbondale, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Nancy Rink Carter, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

The trial court ordered the respondent, Gary Thompson, to be involuntarily admitted to the Department of Mental Health and Developmental Disabilities for a period not to exceed 60 days. The respondent appeals that order. We reverse.

The record shows that on August 30, 1990, the State filed a petition for the respondent’s involuntary admission. The petition alleged that the respondent continued to be subject to involuntary admission based upon prior self-injurious behavior and present delusions. It was accompanied by a certificate executed by a psychiatrist, which concluded that the respondent was a mentally ill person and because of his illness was reasonably expected to inflict serious physical harm upon himself or another in the near future. On August 31, 1990, the petition, certificate, and a treatment plan were filed with the trial court.

On September 5, 1990, a hearing was held at which the respondent appeared in person with his public defender. Dr. Wyler, a staff physician who was temporarily treating the respondent, was the only witness called by the State. Although Dr. Wyler testified that he had seen the respondent the last couple of days before the hearing, the record is unclear regarding the extent to which Dr. Wyler examined him.

Dr. Wyler indicated that the respondent had been hostile and threatening at times, yet cooperative with treatment. He believed the respondent suffered from schizophrenia and could reasonably be expected to inflict serious physical harm upon himself or another. Additionally, Dr. Wyler believed the respondent was unable to provide for his basic physical needs.

The trial court found that the respondent was mentally ill and could reasonably be expected to inflict serious physical harm upon himself in the near future. An order was then entered calling for his continued treatment for up to 60 days.

On appeal, the respondent contends that the order for involuntary admission must be reversed because there was no testimony by a clinical psychologist or psychiatrist as required by section 3 — 807 of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1989, ch. 91V2, par. 3 — 807).

Before we address the respondent’s claim, we must consider whether this appeal is moot. The State argues that an appeal from an involuntary commitment order may be dismissed as moot when the respondent has been previously committed. In re Wathan (1982), 104 Ill. App. 3d 64, 432 N.E.2d 670; In re Meek (1985), 131 Ill. App. 3d 742, 476 N.E.2d 65; In re Riviere (1989), 183 Ill. App. 3d 456, 539 N.E.2d 451.

Generally, the mootness doctrine does not apply to mental health cases. (In re Garcia (1978), 59 Ill. App. 3d 500, 375 N.E.2d 557.) However, it may be applied in mental health cases where there are no future collateral consequences. In re Meek (1985), 131 Ill. App. 3d 742, 476 N.E.2d 65.

In the instant case, the record indicates the respondent has been an admittee at the Zeller Mental Health Center, either on a voluntary or involuntary status, on several occasions since 1984. Additionally, he has been subject to involuntary admission subsequent to the admission under review in this appeal. However, the respondent has not been the subject of a voluntary admission subsequent to the admission we are now considering.

While a subsequent voluntary admission can eliminate the possibility of future adverse collateral legal consequences (In re Wathan (1982), 104 Ill. App. 3d 64, 432 N.E.2d 670), a subsequent involuntary admission does not eliminate the possibility of collateral legal consequences (In re Riviere (1989), 183 Ill. App. 3d 456, 539 N.E.2d 451). We therefore deny the motion to dismiss the appeal on the grounds of mootness.

We turn now to the respondent’s contention that the order for involuntary admission must be reversed since there was no testimony by a clinical psychologist or psychiatrist. We begin by noting that Illinois law requires that at least one psychiatrist or clinical psychologist who has examined the patient testify in person at the hearing. (Ill. Rev. Stat. 1989, ch. 91V2, par. 3 — 807.) Here, however, the record indicates that the only witness to testify on behalf of the State was Dr. Wyler, who was a physician, not a psychologist or psychiatrist.

The respondent’s trial attorney stipulated to Dr. Wyler’s qualifications at the hearing:

“THE COURT: Will you stipulate to the doctor’s qualifications?
[RESPONDENT’S COUNSEL]: So stipulated.”

The State contends that this stipulation was adequate to meet the requirements of section 3 — 807. We disagree.

A vague stipulation at trial to a physician’s qualifications does not render that physician a psychiatrist or psychologist. The testimony of a qualified physician is not sufficient to satisfy the statutory requirements. Since Dr. Wyler’s testimony was inadequate due to his not being a psychiatrist or psychologist, we see no need to address the respondent’s argument that Dr. Wyler had not adequately examined him.

The judgment of the circuit court of Peoria County is reversed.

Reversed.

GORMAN and McCUSKEY, JJ., concur.


author: PRESIDING JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JODY CANAS, Defendant-Appellant.
    Third District
    No. 3—90—0259
    Opinion filed July 19, 1991.
    Charles M. Schiedel, of State Appellate Defender’s Office, of Springfield, and Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Gary L. Spencer, State’s Attorney, of Morrison (Gary F. Gnidovec and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Jody Canas, appeals his conviction for armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A — 2). We affirm.

Michael Kilday testified he and the defendant had once been good friends. Their friendship ended about 18 months before the instant offense. The parties stipulated that during the 18-month interval, Kilday and the defendant had confronted each other several times.

Kilday testified that on the evening of September 12, 1989, the defendant drove over Kilday’s parents’ newly seeded lawn. Later that evening, while Kilday was driving in Sterling, he saw the defendant’s car proceed through town. Kilday made a U-turn and followed the defendant for a mile and a half. When the defendant’s car pulled over, Kilday pulled in front of it. Kilday ran out of his car and confronted the defendant near the rear of the defendant’s car.

Kilday stated he did not have any weapons and did not intend to fight. The defendant said something about fighting, but Kilday did not respond. The defendant then grabbed Kilday’s shirt, and Kilday grabbed him in response. Dennis Mills, the driver of the defendant’s car, also grabbed Kilday in an effort to break up the fight. After about a minute of struggling, Kilday fell to the ground. When he attempted to speak, he realized his throat had been cut. Kilday did not see a weapon in the defendant’s hands.

John Tomczak testified he was working in a nearby garage when he heard the cars stop. He walked out and saw Kilday and the defendant shouting at each other. Tomczak saw Kilday knee the defendant and the two then began fighting. During the fight, a bloody knife flew out from between the two of them and landed near Tomczak. He could not tell who had used it. Afterwards, the defendant told Tomczak to call the police. The defendant then walked over and retrieved the knife.

Frank CarSkaden testified he was working with Tomczak on the night of the incident. He corroborated Tomczak’s testimony that a knife was lying on the ground and that the defendant had retrieved it.

Dennis Mills testified Kilday’s car cut them off and forced them to stop. Kilday got out of his car and threatened to kill the defendant. After the defendant got out of his car, Kilday punched and kicked him. A fight ensued in which Kilday fell to the ground and the defendant cut his hand. After Kilday left the scene, the defendant picked up a screwdriver from the ground and left with Mills.

The defendant testified that Kilday started the fight. After the defendant cut his hand, he pulled out a screwdriver and began swinging it. He was not sure if he cut Kilday with it. Eventually, it flew out of his hand. After the fight ended, the defendant retrieved the screwdriver and told Tomczak to call the police.

Two physicians testified they treated Kilday for a six-inch wound to his throat. The wound was life-threatening, and Kilday was initially in critical condition. They believed the wound was more likely caused by a knife than a screwdriver.

During closing arguments, the prosecutor made the following statements:

“The Defendant was the only person with any kind of weapon that night. Everyone says that. He used deadly force. That’s where his self-defense claim fails. *** [The defendant] would only be justified in using that force under the laws of Illinois if he was doing that to prevent imminent death or great bodily harm to himself. Did he expect imminent death or great bodily harm to himself when he pulled the knife? Ladies and gentlemen, no. He and Michael Kilday have been in fistfights before. He says he saw no weapon.
* * *
Even if you believe that Michael Kilday jumped from his car, ran up and punched the Defendant, with this history and under the laws of Illinois, whatever the history, even if they wrestled on the ground, the Defendant was not entitled under the law to use deadly force.
* * *
Ladies and gentlemen, if you believe that the Defendant was not justified in using deadly force *** then you have no choice but to find the Defendant guilty of Armed Violence.”

The trial court instructed the jury as follows:

“To sustain the charge of Aggravated Battery, the State must prove the following propositions:
First: That the defendant knowingly without legal justification caused great bodily harm to Michael Kilday;
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
* * *
To sustain the charge of Armed Violence, the State must prove the following propositions:
First: That the defendant committed the offense of aggravated battery by causing great bodily harm to Michael Kilday ***

The jury found the defendant guilty of armed violence, aggravated battery, and battery. The court entered a judgment of conviction on the armed violence count and sentenced the defendant to a 14-year term of imprisonment.

On appeal, the defendant first argues the jury instructions were improper because they did not state that in order to find the defendant guilty of armed violence, the jury had to find the State disproved beyond a reasonable doubt the defense of justification. See People v. Berry (1982), 111 Ill. App. 3d 487, 444 N.E.2d 593, aff'd (1984), 99 Ill. 2d 499, 460 N.E.2d 742; People v. Wells (1982), 110 Ill. App. 3d 700, 442 N.E.2d 1341.

We find this case to be distinguishable from Wells and Berry. Unlike those cases, the instant armed violence instruction stated that in order to find the defendant guilty, the jury must first find he committed aggravated battery. The aggravated battery instruction, in turn, stated the State had the burden of disproving beyond a reasonable doubt the defense of justification. Consequently, in order to find the defendant guilty of armed violence, the jury must have first found the State had disproved justification. Indeed, since the jury found the defendant guilty of aggravated battery, it clearly did find the State had disproved the defense of justification beyond a reasonable doubt.

Additionally, the prosecutor conceded in his closing argument that the jury must find the defendant was not justified in using deadly force in order to find him guilty of armed violence. That concession may also be considered in determining whether the instructions were sufficient. (People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248.) For the foregoing reasons, we find no error.

The defendant also contends the prosecutor improperly argued in his closing statement that the defendant could not have been justified in using force because the victim was unarmed. He argues the prosecutor misstated the law, because a person may be justified in using deadly force in self-defense even if the victim is not armed. People v. Estes (1984), 127 Ill. App. 3d 642, 469 N.E.2d 275.

We disagree with the defendant’s interpretation of the prosecutor’s comments. The prosecutor did not state as a blanket proposition that since Kilday was not armed, the defendant could not have lawfully used deadly force. Rather, the prosecutor argued that under the circumstances of the offense, including the past relationship between the parties, the defendant was not justified in using deadly force. Since there is support for this argument in the record, we find no error.

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

Affirmed.

HAASE and BARRY, JJ., concur.


author: JUSTICE GORDON

text:
    ARTHUR T. NEWEY et al., Plaintiffs-Appellants, v. PAUL D. NEWEY, Defendant-Appellee.
    First District (5th Division)
    No. 1—89—0148
    Opinion filed June 14, 1991.

      Francis X. Riley, of Wheaton, for appellants.
    Michael Resis, Dennis A. Marks, and Victor J. Piekarski, all of Querrey & Harrow, Ltd., of Chicago, for appellee.
   JUSTICE GORDON

delivered the opinion of the court:

Plaintiffs, Arthur T. Newey and his wife, Deborah Newey, appeal from an order dismissing their action for damages against defendant, Paul D. Newey, on the grounds that their action was barred by the statute of limitations. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(5).) The plaintiffs contend that the complaint against Paul D. Newey meets the requirements of section 2 — 616(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616(d)) so as not to be barred by the lapse of time notwithstanding the fact that Paul D. Newey was not joined as a defendant until after the statute of limitations had run. For the reasons set forth below, we affirm.

Facts

On February 21, 1984, the plaintiff, Arthur T. Newey, while a tenant at 1035 W. Altgeld in Chicago, fell on the front stairs of the premises and was injured as a result of the fall. In a complaint filed March 13, 1985, plaintiffs brought suit for negligence against Cosmopolitan National Bank of Chicago (Cosmopolitan) as trustee under land trust agreement No. 13562. The complaint alleged that Cosmopolitan owned, operated, managed, maintained, and controlled the premises at 1035 W. Altgeld, and that Cosmopolitan was negligent in the performance of its duties. On September 6, 1985, by agreed order, Cosmopolitan was dismissed as defendant upon its disclosure of the land trust beneficiaries: Paul S. Newey, Davis R. Newey and the plaintiff Arthur T. Newey as trustees under the Paul and Viola Newey Trust, an inter vivos trust. Paul S. and Davis R. Newey are the brothers of the plaintiff, Arthur T. Newey. Paul D. Newey, against whom this appeal is brought, is the settlor, with his now-deceased wife Viola, of the Paul and Viola Newey Trust and the beneficiary of that trust. He is also the father of Paul S., Davis and Arthur Newey. At the times in issue, Paul D. Newey lived at 1034 W. Altgeld, across the street from 1035 W. Altgeld where the accident occurred.

On October 1, 1985, plaintiffs filed an amended complaint, naming as defendant the Paul and Viola Newey Trust, through its trustees Paul S. Newey, Davis R. Newey and Arthur T. Newey. This complaint was identical to the original complaint, except that the new defendant was alleged to be the one who negligently owned, operated, managed or controlled the premises. Paul S. Newey was served with summons on October 29, 1985. On December 2, 1985, Paul S. Newey filed an answer admitting that the Paul and Viola Newey Trust was the beneficial owner of the property held in the land trust, but denying any basis of liability to the plaintiffs. On March 5, 1986, Paul S. Newey filed answers to interrogatories in which he stated that Paul D. Newey was the person responsible for the maintenance and management of the premises at 1035 W. Altgeld. On February 11, 1987, the defendant trust, through its trustees, moved to dismiss the amended complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615) on the grounds that as a trustee of the Paul and Viola Newey Trust, Arthur T. Newey is a necessary defendant, and Arthur T. Newey cannot be both a plaintiff and a defendant in the same action. The motion was granted on June 9, 1987. On July 7, 1987, plaintiffs moved to vacate the order of June 9, 1987, or in the alternative for leave to file a second amended complaint to add Paul D. Newey as defendant, and to delete any reference to Paul S., Davis R. and Arthur T. Newey as defendants. On October 21, 1987, pursuant to their alternative motion, plaintiffs were granted leave to file instanter a second amended complaint naming only Paul D. Newey as a defendant. The second amended complaint alleged that Paul D. Newey was the beneficiary of the Paul and Viola Newey Trust, and that he owned, operated, managed, maintained and controlled the premises where the accident occurred. Paul D. Newey was personally served with a summons on February 6, 1988. On April 15, 1988, Paul D. Newey filed a motion to dismiss under section 2— 619(a)(5) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(5)) on the grounds that the action against him was not commenced within the two-year limitation period for personal injury actions. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 202.) The section 2— 619 submissions of defendant included a copy of the trust agreement establishing the Paul and Viola Newey Trust, which provided the trustees with the power to operate, manage and control the property subject to their discretion. The agreement also provided that upon the death of the grantors, the corpus of the trust would be distributed to the sons. By order of August 23, 1988, the trial court granted defendant’s motion to dismiss with prejudice, and by order of December 8, 1988, it denied the plaintiffs’ motion to vacate the August 23 order, from which orders plaintiffs now appeal.

Opinion

Neither party to this appeal contests the fact that the complaint against Paul D. Newey was filed after the statute of limitations had run. The accident occurred, and the cause of action accrued, on February 21, 1984. The applicable statute of limitations for personal injury actions is two years. (Ill. Rev. Stat. 1987, ch. 110, par. 13— 202.) Thus, the limitation period ran through February 21, 1986. Paul D. Newey was not joined as a defendant until October 21, 1987, and was not personally served with summons until February 6, 1988. Therefore, absent other considerations, this action is time barred. Plaintiffs, however, argue that the late joinder of Paul D. Newey should relate back to the date of the filing of the original complaint, pursuant to section 2 — 616(d) of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616(d).) Under section 2 — 616(d), an amendment adding a person as a defendant may relate back to the date of the filing of the original pleading and thus prevent the action from being time barred if the following five requirements are all satisfied:

“(1) the time prescribed or limited had not expired when the original action was commenced; (2) failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon the person, his or her agent or partner, as the nature of the defendant made appropriate, even though he or she was served in the wrong capacity or as agent of another, or upon a trustee who has title to but no power of management or control over real property constituting a trust of which the person is a beneficiary; (4) the person, within the time that the action might have been brought or the right asserted against him or her, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him or her; and (5) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616(d).)

There is no dispute that the first, fourth and fifth requirements have been met. The original action was commenced on March 13, 1985, well before the limitation period expired on February 21, 1986. No one denies that the defendant, Paul D. Newey, as father of the plaintiff, knew prior to February 21, 1986, that the original action was pending and that it grew out of an occurrence concerning him, namely an accident on property which he managed. Finally, it is clear that the cause of action in the second amended pleading is the same cause of action as in the original pleading. Therefore, the issues before us are whether the plaintiffs have satisfied the second and third requirements of the statute, namely whether the failure to name Paul D. Newey as defendant was inadvertent and whether Paul D. Newey was served with process within the limitation period.

We first consider whether the failure to join defendant was “inadvertent” as required by section 2 — 616(d)(2). Plaintiffs contend that their failure to name Paul D. Newey as defendant until after the statute of limitations had run was inadvertent because the previously named defendants, the land trust and the inter vivos trust and its trustees, had “technical and unknown impediments” as defendants under the rules of pleading. Plaintiffs argue that the dismissal of their second amended complaint violates the spirit of section 2 — 616 that causes of action shall be “preserve[d] *** against loss by reason of technical rules of pleading.” (Pavlov v. Konwall (1983), 113 Ill. App. 3d 576, 578, 447 N.E.2d 982, 984.) Defendant counters that since plaintiffs knew from the outset that the inter vivos trust was the benefíciary of the land trust and that Paul D. Newey was the beneficiary of the inter vivos trust, their failure to name Paul D. Newey as defendant was not inadvertent as that term is used in the statute. We agree with defendant’s contention.

“ ‘Inadvertence’ means excusable ignorance, not excusable failure to act after the facts are discovered.” (Robinson v. Chicago National Bank (1961), 32 Ill. App. 2d 55, 61, 176 N.E.2d 659, 662.) It does not include failure to act appropriately where defendant’s true identity is known to the plaintiff. Yedor v. Centre Properties, Inc. (1988), 173 Ill. App. 3d 132, 139, 527 N.E.2d 414, 419.

Plaintiffs base their claim of inadvertence on ignorance of the “fact” that neither the land trustee nor the inter vivos trust was a proper defendant. However, this is a result of ignorance of the law, not of the facts, and our review of the cases interpreting section 2— 616(dX2) leads us to the conclusion that this is not the type of ignorance contemplated by the statute. Ignorance, in the context of section 2 — 616(d)(2), connotes a lack of knowledge of the identity or existence of a defendant. (Greig v. Griffel (1977), 49 Ill. App. 3d 829, 833, 364 N.E.2d 660, 664.) When a plaintiff is aware of the identity of a defendant before the period of limitation has run, but does not seek to amend his complaint to add that defendant until after the statute has run, failure to join that defendant is not inadvertent. See Behr v. Club Med, Inc. (1989), 190 Ill. App. 3d 396, 546 N.E.2d 751 (plaintiff put on notice as to proper defendant by answers to interrogatories, failure to join was not inadvertent); Morse v. Michaelson, Rabig & Ramp (1968), 101 Ill. App. 2d 366, 243 N.E.2d 271 (where plaintiffs knew identity of partners but elected to sue partnership, failure to name individual partners not inadvertent); Robinson v. Chicago National Bank (1961), 32 Ill. App. 2d 55, 176 N.E.2d 659 (plaintiff knew identity of beneficiary of land trust and identity of manager but sued trustee only, failure to name beneficiaries not inadvertent).

In discussing the history of section 46(4) of the Civil Practice Act (Ill. Rev. Stat. 1959, ch. 110, par. 46(4)), the predecessor of the current section 2 — 616(d), the court in Silver v. Lee Shell Equipment Corp. (1961), 31 Ill. App. 2d 266, 270, 175 N.E.2d 287, 289, cited by the plaintiffs here, said:

“To us it appears that the legislature sought to provide a remedy for the inequities growing out of the confusion that may result from the changing entities under which contemporary business and industry is conducted. At the same time the legislature created conditions which would safeguard against the undermining of the statute of limitations. [Citation.] In other words, it took account of the problem that lawyers in our time have of determining the right defendant. This is particularly true in a densely populated city where one may deal for years with a business and not know the character of its organization — whether corporate, partnership, individual, or a common law trust.”

Most of the decisions upholding a finding of “inadvertence” have involved the difficulties plaintiffs have in ascertaining the identity of the person or entity to be sued. For example, in Anderson v. Rick’s Restaurant & Cocktail Lounge (1977), 45 Ill. App. 3d 992, 360 N.E.2d 465, plaintiff originally sued a sole proprietorship, only later finding out that the proper defendant was a corporation. A similar result was reached on similar facts in Greig v. Griffel (1977), 49 Ill. App. 3d 829, 364 N.E.2d 660. In Campbell v. Feuquay (1986), 140 Ill. App. 3d 584, 488 N.E.2d 1111, the plaintiff named “South Roxana Market” as defendant in his original complaint. After discovering that South Roxana Market was a sole proprietorship and not a corporation as originally believed, plaintiff was allowed to amend his complaint to “Edith Feuquay d/b/a South Roxana Market.” In a case involving corporate defendants, Bates v. Wagon Wheel Country Club, Inc. (1971), 132 Ill. App. 2d 161, 266 N.E.2d 343, cited by plaintiffs here, the plaintiff originally sued the Wagon Wheel Hotel for injuries suffered while he was a guest at the hotel. It was not until three years after the accident that the plaintiff learned that there was no such entity as the Wagon Wheel Hotel, and that the proper defendants were Wagon Wheel Country Club, Inc., and Wagon Wheel Enterprises, Inc. The court noted that nine different corporations were involved in the operation of the hotel, and six of those used the name “Wagon Wheel” in their titles. In finding that plaintiff’s failure to name the proper defendants was inadvertent, the court found it “understandable that plaintiff might have difficulty in determining who was the proper party defendant.” Bates, 132 Ill. App. 2d at 166, 266 N.E.2d at 347.

It is not, however, the mere fact that businesses or individuals choose to set up different entities — corporations, partnerships or trusts — to conduct their affairs that justifies a finding of inadvertence. (Behr v. Club Med, Inc. (1989), 190 Ill. App. 3d 396, 406, 546 N.E.2d 751, 758.) It is the confusion which may result from the profusion of such entities and the resultant difficulty for plaintiffs in identifying the proper defendant which justifies a finding of inadvertence. Here, there is no contention that plaintiffs were confused as to the existence, identity or relationship of the trusts and their beneficiaries. Nor can there be any question as to such confusion since the plaintiff Arthur Newey was the beneficiary’s son and was a designated trustee of the inter vivos trust as well as a tenant of the property. Thus there can be no question that plaintiffs were aware from the time the original complaint was filed that the land trust held legal title to the property, that the inter vivos trust, of which the plaintiff Arthur Newey was trustee, was the beneficiary of the land trust and that Paul D. Newey was the beneficiary of that trust as well as the one with day-to-day control over the property which he now alleges in his second amended complaint. Knowing these facts, plaintiffs chose to name the trusts as defendants in their first two complaints rather than this defendant.

The validity of the finding that plaintiffs’ actions here were not inadvertent is further reinforced by another definition of “inadvertence” deployed in this context: “not turning the mind to a matter: heedless, negligent, inattentive.” (Evans v. Graber, Inc. (1983), 115 Ill. App. 3d 532, 535, 450 N.E.2d 482, 484.) In Gonzalez v. Seiff (1967), 90 Ill. App. 2d 127, 234 N.E.2d 336, plaintiff knew the identity of the owner of the vehicle involved in an accident, but chose originally to sue only the driver. When the driver died during the course of the litigation, the plaintiff sought to amend the complaint to join the owner as defendant, arguing that it was not originally necessary to add the owner as a defendant because the driver was a proper defendant and therefore failure to add the owner was simply heedless or negligent in not anticipating that the driver might die. The court in holding that these facts did not constitute inadvertence stated that plaintiff’s failure to join the owner was not a mere failure to consider naming him as defendant, but rather a deliberate choice on plaintiff’s part. Similarly, here, the plaintiffs knew the identity of this defendant but chose instead to sue the trusts rather than Paul D. Newey, and we do not find the plaintiffs’ failure to anticipate that the trusts would be dismissed as defendants to be heedless or negligent.

The plaintiffs argue that the facts of this case are similar to those in Hix v. Amato (1977), 50 Ill. App. 3d 761, 365 N.E.2d 1148. In that case the plaintiff sought recoveries for personal injuries under the Dramshop Act and in common law negligence. He initially named Amato, the liquor licensee, as defendant. It was not until after the period of limitation had run that the plaintiff learned that Amato was not the operator of the dramshop when the accident occurred, and that it was operated by Galloway under an oral lease from Amato and under Amato’s liquor license. The court, relying on Robinson v. Chicago National Bank (1961), 32 Ill. App. 2d 55, 176 N.E.2d 659, found that, under those circumstances, failure to join Galloway as a defendant prior to the running of the statute of limitation was excusable ignorance, and thus inadvertent. Here, unlike the facts in Hix, there was no ignorance on the plaintiffs’ part as to who actually managed the property. They knew the defendant and that he was the one who was responsible for the operation and maintenance of the premises where the plaintiff was injured. Therefore, we find Hix inapposite.

The cases of Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121, 302 N.E.2d 64, and Pavlov v. Konwall (1983), 113 Ill. App. 3d 576, 447 N.E.2d 982, cited by plaintiffs are also not on point. Neither case involved a late substitution of a defendant, and in neither case was inadvertence an issue. In Halberstadt the court allowed a late amendment to alter a cause of action in a suit brought under the Structural Work Act, where the amended cause of action grew out of the same occurrence as the original complaint. Halberstadt was decided under sections 46(1) and (2) of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, pars. 46(1), (2)), which are now 2 — 616(a) and (b) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, pars. 2— 616(a), (b)). In Pavlov the original wrongful death action had been dismissed on the ground that the plaintiff was not a proper party plaintiff, having not been properly appointed as administrator. A late amendment was allowed to change the designation of plaintiff after the deficiency in plaintiff’s appointment as administrator had been cured. Like Halberstadt, Pavlov involved the same sections (46(1) and (2)) of the Civil Practice Act. Plaintiffs, however, present these cases to support their contention that an action should not be dismissed due to “technical rules of pleading,” a policy which plaintiffs urge should apply not only to sections 2 — 616(a) and (b) but to section 2 — 616(d) as well. The Historical and Practice Notes to section 2 — 616(d) point out that this section “was added in 1955 to cover the situation in which the plaintiff sues the wrong defendant but serves process upon the agent of the right defendant, and the statute of limitations runs on the claim before the rectification of the mistake. *** The problem was one for statutory solution. Subsection (d) is the solution, which deals adequately with the problem and at the same time contains safeguards against the undermining of the statute of limitations.” (Ill. Ann. Stat., ch. 110, par. 2 — 616, Historical and Practice Notes, at 528 (Smith-Hurd 1983).) These safeguards against undermining the statute of limitations consist of the five requirements of the statute, all of which must be satisfied before an otherwise time-barred amendment will be saved by section 2 — 616(d). Accordingly, we cannot under a general policy of liberal remediation ignore or set aside the five specific prerequisites which must each be satisfied for relation back to apply under that section. See Behr v. Club Med, Inc. (1989), 190 Ill. App. 3d 396, 546 N.E.2d 751; Bates v. Wagon Wheel Country Club, Inc. (1971), 132 Ill. App. 2d 161, 266 N.E.2d 343; Robinson v. Chicago National Bank (1961), 32 Ill. App. 2d 55, 176 N.E.2d 659.

Even had plaintiffs’ failure to join Paul D. Newey as defendant within the period of limitation been inadvertent, plaintiffs have not satisfied the requirements of section 2 — 616(d)(3) regarding service of summons. Plaintiffs contend that Paul D. Newey was in fact served with summons vicariously when Paul S. Newey was served on October 29, 1985. Plaintiffs in effect propose that Paul S. Newey was defendant’s agent for service of summons. In support, plaintiffs would have us accept as true the answers to interrogatories given by Paul S. Newey on behalf of the trustees of the inter vivos trust wherein he attributes the active powers of day-to-day management to the beneficiary. Defendant contends that, notwithstanding what the de facto role of the beneficiary may have been with respect to the operation and management of the property, the trust agreement which gives the trustees and not the beneficiary the power to operate and manage the property must control.

As shall be demonstrated below, the question raised by the disparity between the trust agreement and the answers to the interrogatories by Paul S. Newey is not dispositive of the agency question. Even if we accept the fact that the beneficiary intervened in the daily operation and management of the property notwithstanding the exclusive management powers granted to the trustees under the trust agreement, the trustees of the inter vivos trust would not become his agents to receive summons on his behalf.

The issue of a trustee as agent of the beneficiary of the trust was discussed in Just Pants v. Bank of Ravenswood (1985), 136 Ill. App. 3d 543, 547, 483 N.E.2d 331, 335, and Kessler, Merci, & Lochner, Inc. v. Pioneer Bank & Trust Co. (1981), 101 Ill. App. 3d 502, 505-06, 428 N.E.2d 608, 611. Under Just Pants and Kessler, where the beneficiary has full management power and control, the trustee acting at the direction of the beneficiary will be deemed his agent for the purpose of liability in contract or in tort arising from such acts or omissions. However, unlike the nature of the agency discussed in Just Pants and Kessler, the issue here is not whether the trustees were the agents of the defendant beneficiary for the purpose of imposing upon him vicarious liability for acts or omissions in connection with the operation and management of the trust property, but rather whether the trustees were the agents of the beneficiary for service of .process. The mere fact that a trustee may be deemed to act for the beneficiary in connection with the operation of the trust property will not suffice to render the trustee an agent of the beneficiary for service of summons. This point was persuasively made in Robinson v. Chicago National Bank (1961), 32 Ill. App. 2d 55, 176 N.E.2d 659.

The plaintiff in Robinson argued that service upon a land trustee who holds title at the direction and control of the beneficiary satisfied the requirement of service upon an agent. The court rejected this argument, finding no agency relationship either expressly, by implication or by estoppel. “Liability arises out of the acts of the person having the right to possession and control of the property. This is a personal liability, not a liability in rem against the title to the property. It follows that the trustee cannot be deemed an agent either express or implied for the purpose of accepting service of process upon the beneficial owners for actions arising out of their claimed personal torts.” (Robinson, 32 Ill. App. 2d at 63, 176 N.E.2d at 663.) The same reasoning applies here. The liability, if any, in this case is personal, arising from the acts or omissions of the person having control of the property. There is nothing in the trust agreement which expressly makes the trustees agents for service of process upon the beneficiary, nor is there any basis upon which such an agency may be implied.

In 1963, following the decision in Robinson, section 2 — 616(d)(3) was specially amended to add a clause providing for service “upon a trustee who has title to but no power of management or control over real property constituting a trust of which the person is a beneficiary.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616(d)(3).) This amendment was designed to overcome the effect of Robinson, which persuasively concluded that a trustee of a land trust is not the agent of the beneficiaries for service of process. The amendment therefore provided for service upon a land trustee to satisfy the prerequisite of service without requiring an agency relationship. (See Ill. Ann. Stat., ch. 110, par. 2 — 616, Historical and Practice Notes, at 528-29 (Smith-Hurd 1983).) The plaintiffs have not urged effective service under this special “land trust” amendment, but only under the preexisting agency provision. Moreover, this amendment would not be applicable here in any event since, notwithstanding the fact that the beneficiary may have intervened in the actual management of the property, there is no question that the trust agreement reposes full management powers in the trustees.

The case of Slates v. International House of Pancakes, Inc. (1980), 90 Ill. App. 3d 716, 413 N.E.2d 457, is further in point. That case dealt with service upon an agent in the context of a franchisor/ franchisee relationship. Process was served on an employee of the franchisee, and the plaintiff argued that this was effective as to the franchisor. The court there held that for service to be effectively made upon an agent of the defendant, the agent must have actual authority to accept process, notwithstanding the degree of control which a franchisor may exert over a franchisee. It based this conclusion on the fact that while apparent authority may be sufficient to bind a principal for contract purposes, different considerations, involving constitutional due process, are present when the issue is service of process. Accord Gibson v. Russann, Ltd. (1989), 179 Ill. App. 3d 208, 534 N.E.2d 449.

None of the cases cited by plaintiffs on this issue are in point. In Pennsylvania Co. v. Sloan (1888), 125 Ill. 72, 17 N.E. 37, the issue was one of misnomer of the defendant, and service of process was in fact made upon an agent of the defendant, albeit under a wrong company name. In Silver v. Lee Shell Equipment Co. (1961), 31 Ill. App. 2d 266, 175 N.E.2d 287, service was originally had upon I.W. Shell as agent and officer of the Lee Shell Equipment Co. When plaintiff later sought to amend the complaint to name I.W. Shell as an individual defendant, the court found that I.W. Shell had actually been served as required by the statute, albeit in his capacity as an agent of the corporation and not as an individual. In Bates v. Wagon Wheel Country Club, Inc. (1971), 132 Ill. App. 2d 161, 266 N.E.2d 343, discussed above, service was made upon Maurice E Hannon as agent of the Wagon Wheel Lodge Hotel. Although the Wagon Wheel Lodge Hotel was later determined to be a nonexisting corporate entity, Mr. Han-non was found to be the agent, as well as secretary, of the defendant corporations, thus satisfying the requirement of service in section 2— 616(d)(3).

The plaintiffs’ reliance in this regard on Hix v. Amato (1977), 50 Ill. App. 3d 761, 365 N.E.2d 1148, is likewise misplaced. There the plaintiff initially served summons on Amato, the liquor licensee, as defendant. Eventually, Amato was granted summary judgment on the ground that he was not in control or possession of the dramshop when the accident occurred. As noted previously in the discussion of Hix in connection with the question of inadvertence, plaintiff then sought to amend his complaint to name as defendant Galloway, who operated the dramshop under an oral lease with Amato and under Amato’s liquor license. At issue was whether service on Amato would be considered service on an agent of Galloway so as to satisfy the statute. In finding that Amato was the agent of Galloway for service of process, the court held that because the arrangement between Amato and Galloway was contrary to the law, the purposes behind the Dramshop Act justified a finding that Amato was the agent of Galloway. “In light of the mandate of article I, section 1 of the Dram-shop Act [citation] that ‘This Act shall be liberally construed, to the end that the health, safety and welfare of the People of the State of Illinois shall be protected ***’ certainly, on the arrangement apparently made by Galloway and Amato, it would be proper to consider Amato as the agent of Galloway for the purpose of service of process in matters relating to the Three Crown Room of which Amato was the sole licensee.” (Hix, 50 Ill. App. 3d at 765, 365 N.E.2d at 1152.) Thus Galloway was not allowed to profit from his own illegality and deceptive conduct at the expense of the plaintiff Hix. There is no such illegality or deception in the arrangement between the parties before us; nor are we dealing in this case with any attempt to circumvent strong public policy considerations promoted by a statute such as the Dramshop Act.

The decision as to whether to allow pleadings to be amended to add a defendant after the statute of limitations has run rests with the sound discretion of the trial judge. The test to be applied in determining whether there has been an abuse of that discretion is whether the decision furthers the ends of justice. (Campbell v. Feuquay (1986), 140 Ill. App. 3d 584, 590, 488 N.E.2d 1111, 1115.) One factor which may lead to a finding that allowing a late amendment will further those ends occurs when the defendants or their attorneys have caused or contributed to the plaintiff’s failure to identify the right defendant within the limitation period. (See, e.g., Campbell, 140 Ill. App. 3d at 590, 488 N.E.2d at 1115; Bates v. Wagon Wheel Country Club, Inc. (1971), 132 Ill. App. 2d 161, 167, 266 N.E.2d 343, 348. The previously distinguished case of Hix v. Amato (1977), 50 Ill. App. 3d 761, 365 N.E.2d 1148, is also illustrative of this factor.) We see nothing in the record before us which would indicate that this defendant, or either of the previous defendants, has committed any such acts of deception. In fact, when Paul S. Newey answered the first amended complaint as trustee of the inter vivos trust, he specifically stated that Paul D. Newey was the one who managed the property in question. This answer by itself should have been sufficient to put the plaintiffs on notice as to the right defendant. Moreover, given the fact that the primary plaintiff Arthur T. Newey was a trustee of the inter vivos trust and a contingent beneficiary of that trust, a tenant on the property, as well as the son of the defendant, plaintiffs cannot seriously contend that they were misled by the defendant as to his identity.

Plaintiffs point out, and we cannot disagree, that this lawsuit was no surprise to this defendant. However, the element of surprise to the defendant is but one factor to be considered in determining whether to allow an amendment of pleadings, and the absence of surprise does not require the allowance of amendments where the other requirements of section 2 — -616(d) have not been met. (Gibson v. Russann, Ltd. (1989), 179 Ill. App. 3d 208, 214, 534 N.E.2d 449, 452-53.) As discussed above, neither the second nor the third requirement of section 2 — 616(d) has been met. Therefore, we conclude that the trial court did not abuse its discretion in dismissing plaintiffs’ complaint as barred by the statute of limitations. Accordingly, we affirm the order of the circuit court dismissing this action.

Affirmed.

COCCIA and MURRAY, JJ., concur.

       Justice Michel A. Coccia participated in oral arguments prior to his assignment to another division.


author: PRESIDING JUSTICE LORENZ

text:
    PATRICIA STROUD, Indiv. and as Adm’r of the Estate of Alton Stroud, Deceased, Plaintiff, v. NEWS GROUP CHICAGO, INC., et al., Defendants.—ALLEN E. KRUCEK, Plaintiff-Appellee, v. NEWS GROUP CHICAGO, INC., Defendant-Appellant (Michael Scott, Defendant).—QUANTEX CORPORATION, as Subrogee of Transit-All Service, Inc., et al., Plaintiffs, v. CHICAGO SUN-TIMES et al., Defendants.
    First District (5th Division)
    No. 1—89—2810
    Opinion filed June 14, 1991.

      Wildman, Harrold, Allen & Dixon, of Chicago (Stanley V. Boychuck and David A. Kanter, of counsel), for appellant.
    Beerman, Swerdlove, Woloshin & Barezky, of Chicago (Alvin R. Becker and Timothy M. Kelly, of counsel), for appellee.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

Defendant, News Group Chicago, Inc. (News Group), applied to this court for leave to appeal under Supreme Court Rule 308 (134 Ill. 2d R. 308) from an order identifying two questions for appeal. Rule 308 allows an appeal from an interlocutory order, identifying a question of law, with the permission of the appellate court in the exercise of its discretion. This court granted News Group’s application, and we consider: (1) whether the trial judge had jurisdiction on July 10, 1989, to modify an order which was made final and appealable on November 30, 1988; and (2) whether News Group should have been granted summary judgment when its employee, Michael Scott, was dismissed with prejudice and the alleged basis for News Group’s liability was under the doctrine of respondeat superior. We reverse and remand.

Plaintiff, Allen Krucek, filed a complaint against News Group and Scott seeking recovery for personal injuries he sustained in a car accident on December 20, 1984. At the time of the accident, Krucek was driving a truck owned by Transit-All Service, Inc. (Transit-All), which collided with a truck owned by News Group and driven by Scott. Krucek alleged Scott’s negligence caused the accident and News Group was liable for Scott’s actions as his employer under the doctrine of respondeat superior. Krucek did not allege any independent acts of negligence against News Group. News Group was served with the complaint and filed an answer, which is not in the record on appeal, admitting that Scott was its employee. Scott was not served with the complaint.

In addition to the case on appeal, two other complaints were filed as a result of the accident which were consolidated in the trial court. Patricia Stroud, individually and as administrator of the estate of Alton Stroud, who was a passenger in Scott’s truck, filed a personal injury action against News Group, Scott, Krucek, and Transit-All. Quantex Corporation and Forum Insurance Company filed a subrogation action for property damage against Chicago Sun-Times (of which News Group is a corporate entity) and Scott. The plaintiffs in both of these actions also failed to serve Scott with summons and complaint.

News Group moved to dismiss Scott with prejudice under Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)) from each of the three cases for plaintiffs’ failure to serve Scott after the statute of limitations expired. Rule 103(b) provides that on the application of any defendant or on the court’s own motion, an unserved defendant may be dismissed with prejudice for plaintiff’s failure to exercise reasonable diligence to serve him after the statute of limitations has expired. Krucek did not appear at the hearing on the motion, and the trial judge entered an order on October 6, 1988, dismissing Scott with prejudice from each of the cases. The order specifically stated that if a motion to reconsider the order was not filed within 30 days, a finding would be entered allowing an appeal under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). Rule 304(a) provides that an appeal may be taken from a final judgment which disposes of fewer than all of the parties or claims if the judge makes an express finding that there is no just reason to delay enforcement or appeal. Krucek, however, did not file a motion to reconsider or a motion to vacate.

On November 30, 1988, pursuant to News Group’s motion, the judge made a Rule 304(a) finding for the October 6 order against Krucek. No appeal was taken from that order.

Subsequently, News Group moved for summary judgment arguing that the dismissal with prejudice of Scott under Rule 103(b) barred Krucek’s action against it under the doctrine of res judicata. At the hearing on the motion, the judge stated that Scott’s previous dismissal would have no bearing on News Group’s liability and directed the parties to prepare an order stating that Scott’s dismissal was not an adjudication on the merits. An order was entered on July 10, 1989, which stated:

“(1) On its own motion, the court makes a finding that the dismissal of Michael Scott on October 6, 1988, ‘shall not [ajffect the potential liability of News Group Chicago,’
***
(3) News Group’s motion for summary judgment against Krucek *** is denied pursuant to the finding announced in paragraph one of this order.”

Pursuant to News Group’s motion for a permissive appeal under Rule 308, the trial judge found that the order involved a question of law as to which there was a substantial ground for difference of opinion and that an immediate appeal would materially advance the ultimate termination of the litigation. The judge identified the following two questions for appeal:

“(a) Whether the trial court had jurisdiction to enter its July 10, 1989, order modifying the prior orders of October 6, 1988 (said order granting News Group’s Motion to Dismiss Michael Scott pursuant to Supreme Court Rule 103(b)), and November 30, 1988 (said order granting News Group’s motion to make the October 6, 1988, order final and appealable pursuant to Supreme Court Rule 304(a)), by ruling that the order of October 6, 1988 was not ‘an adjudication on the merits as to News Group;’ and
(b) Assuming the answer to the first certified question is in the negative, whether the dismissal of Michael Scott pursuant to Supreme Court Rule 103(b) is res judicata on the potential liability of News Group Chicago where there is no independent basis of negligence asserted against News Group Chicago and the sole basis of recovery against News Group Chicago is by virtue of the doctrine of respondeat superior.”

News Group applied to this court for leave to appeal under Rule 308, and this court granted the appeal.

Opinion

The first question is whether the trial judge had jurisdiction on July 10, 1989, to modify the order entered on October 6, 1988, which was made final and appealable on November 30, 1988. The October 6 order dismissed Scott with prejudice under Rule 103(b) for Krucek’s failure to exercise reasonable diligence in serving Scott. The July 10 order stated:

“(1) On its own motion, the court makes a finding that the dismissal of Michael Scott on October 6, 1988, ‘shall not [a]ffect the potential liability of News Group Chicago[.]’ ”

News Group contends that this paragraph modified the October 6 order because it was the equivalent of adding a finding under Supreme Court Rule 273 (134 Ill. 2d R. 273) that Scott’s dismissal was not an adjudication on the merits. Rule 273 provides:

“Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.” 134 Ill. 2d R. 273.

After a trial court has entered a Rule 304(a) finding that there is no just reason to delay enforcement or appeal of a final judgment and the time to appeal has expired, the court loses jurisdiction to modify the order. (Kucharski v. Floro (1989), 191 Ill. App. 3d 1032, 548 N.E.2d 483.) An order entered without jurisdiction is void. (Ball v. Edgar (1988), 165 Ill. App. 3d 349, 519 N.E.2d 35.) In this case, the trial judge did not have jurisdiction on July 10 to modify the October 6 order, which was made final and appealable on November 30. As a result, the July 10 order, pertaining to News Group, was void.

Krucek argues that paragraph one of the July 10 order merely interpreted the October 6 order rather than actually modified it. From the language of paragraph one, the judge made “a finding” that Scott’s dismissal did not affect News Group’s liability. However, at the hearing the judge stated that the July 10 order should state Scott’s dismissal was not an adjudication on the merits. This indicates that the judge attempted to modify the October 6 order by including a finding that the dismissal was not an adjudication on the merits under Rule 273.

The second question identified by the trial judge is whether the Rule 103(b) dismissal with prejudice of Scott, the employee, was res judicata to the liability of News Group, his employer, when Krucek sought to hold News Group liable under the doctrine of respondeat superior. The trial judge denied News Group’s motion for summary judgment on this issue.

An adjudication on the merits, rendered by a court of competent jurisdiction, is conclusive of the rights of the parties and their privies and, under the doctrine of res judicata, is an absolute bar to a subsequent action against them involving the same claim, demand, or cause of action. (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217.) As stated previously, Rule 273 provides that an involuntary dismissal, with certain exceptions not applicable here, operates as an adjudication on the merits. The supreme court in Towns explained the application of res judicata to agency relationships:

“[A] judgment for either the master or servant, arising out of an action predicated upon the alleged negligence of the servant, bars a subsequent suit against the other for the same claim of negligence where the agency relationship is not in question. *** ***
*** When an action is brought against a master based on the alleged negligent acts of his servant, and no independent wrong is charged on behalf of the master, his liability is entirely derivative, being founded upon the doctrine of respondeat superior. *** [T]he liability of the master and servant for the acts of the servant is deemed that of one tortfeasor and is a consolidated or unified one. [Citation.] *** The operative facts which comprise the alleged bases for liability of the master are identical to those which would prove the servant liable. *** A judgment, therefore, adjudicating the master not liable, where a judgment to the contrary could have only resulted from a finding that the servant committed an actionable wrong against the plaintiff, is a judgment in legal effect that the servant is not liable. [Citation.] *** [T]o hold otherwise would allow the plaintiff to have two trials for the same cause of action.” (Towns, 73 Ill. 2d at 122-24, 382 N.E.2d at 1221-22.)

In Towns, the court held that the dismissal with prejudice of a master as a discovery sanction was an adjudication on the merits as to the servant under Rule 273. As a result, the action against the servant was barred as res judicata.

This court has previously considered whether the dismissal with prejudice of a principal under Rule 103(b), for plaintiff’s failure to exercise reasonable diligence in serving him, was an adjudication on the merits trader Rule 273 as to the agent. (Williams v. Bolsten (1989), 184 Ill. App. 3d 832, 540 N.E.2d 966.) In Williams, the principal was dismissed with prejudice under Rule 103(b) and summary judgment was subsequently granted in the agent’s favor on res judicata grounds. On appeal, the judgment was affirmed based on a finding that the Rule 103(b) dismissal with prejudice was an adjudication on the merits. Relying on Towns, this court held the action against the agent was barred by res judicata because there was an adjudication on the merits as to the principal. See also Martin v. Yellow Cab Co. (1990), 208 Ill. App. 3d 572, 567 N.E.2d 461 (relying on Towns, summary judgment in the principal’s favor was affirmed because the Rule 103(b) dismissal with prejudice of the agent was res judicata to the principal).

Similarly, here, Krucek alleged News Group was liable based on the doctrine of respondeat superior for the alleged negligent acts of its employee, Scott. Although News Group’s answer to the complaint is not in the record on appeal, Krucek does not dispute that News Group admitted Scott was its employee. Because the agency relationship was admitted, the dismissal of Scott with prejudice operated as an adjudication on the merits as to News Group and Krucek’s action against News Group was barred under the doctrine of res judicata. Therefore, the trial judge’s decision must be reversed and remanded.

In defending this appeal, Krucek argues that the Rule 103(b) dismissal of Scott with prejudice was erroneous. However, this case is on appeal under Rule 308 and review is limited to the questions identified by the trial court. (Thompson v. Walters (1991), 207 Ill. App. 3d 531, 565 N.E.2d 1385.) The propriety of Scott’s dismissal, therefore, is not before this court. Further, because Krucek failed to appeal Scott’s dismissal after the Rule 304(a) finding was entered that there was no just reason to delay enforcement or appeal, the dismissal of Scott is no longer subject to review. 134 Ill. 2d Rules 303, 304.

For the above reasons, the first certified question is answered in the negative and the second is answered in the affirmative. The order of July 10, 1989, is reversed as to News Group and the cause is remanded with directions to proceed in accordance with this opinion.

Reversed and remanded.

MURRAY and McNULTY, JJ., concur.