author: JUSTICE BOWMAN

text:
    DYNAMIC RECYCLING SERVICES, INC., Counterplaintiff-Appellee and Cross-Appellant, v. SHRED PAX CORPORATION, Counterdefendant-Appellant and Cross-Appellee.
    Second District
    No. 2 — 90—0565
    Opinion filed March 18, 1991.

      Michael R. Dockterman, of Wildman, Harrold, Allen & Dixon, of Chicago (Aaron T. Shepley, of counsel), for appellant.
    Rathje, Woodward, Dyer & Burt, of Wheaton (Gary L. Taylor, of counsel), for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court;

Dynamic Recycling Services, Inc., brought this cause as a counterclaim against Shred Pax Corporation in an underlying action where the parties were codefendants. The underlying action has no relevance to the present case. Therefore, in order to avoid any confusion which might result from referring to the parties as counterplaintiff and counterdefendant, we shall designate them only as plaintiff and defendant. Shred Pax (defendant) appeals from a judgment entered against it on one count of Dynamic’s counterclaim, and Dynamic (plaintiff) cross-appeals from the trial court’s denial of its prayer for consequential damages. We affirm.

The facts of this case may be distilled from the evidence presented at trial. In the spring of 1984, Charles Bendig and Thomas Duffy decided to go into the business of disposing of used auto and truck tires. They formed Dynamic, with Bendig as the company’s president. After investigating various methods of disposal, Bendig and Duffy decided that the most financially feasible alternative was to shred used auto tires and discard the shreddings at a landfill. However, they lacked experience and expertise in regard to the mechanics involved in a shredding operation. Accordingly, they contacted Shred Pax and inquired whether any Shred Pax machines were capable of shredding tires. They received an affirmative answer and discussed the matter further with Shred Pax.

Subsequently, after receiving a referral from Shred Pax, Bendig and Duffy traveled to New York to see Shred Pax shredders in operation at a facility owned by Ernie Force. Force, who had been in the tire recycling business for 14 years, had used several different models of Shred Pax machines to shred tires. Bendig and Duffy discussed with Force the daily operation of his business, and Bendig’s brother, Ronald, later spent a week at Force’s facility observing and learning the business.

On July 24, 1984, Dynamic received a written proposal from Shred Pax for the sale of a new model AZ-45 shredder at a price of $64,895. On September 6, 1984, Dynamic received another written proposal from Shred Pax, this time for the sale of a remanufactured AZ-45 shredder, at a cost of $49,500. Both of the Shred Pax proposals included warranty provisions with virtually identical language. The September proposal was accompanied by a letter which stated that the remanufactured unit carried “the same 90-day unconditional guarantee as a new machine.” Dynamic ultimately purchased the remanufactured machine, and Ronald Bendig picked it up from Shred Pax late in February 1985.

Before putting the AZ-45 into operation, Dynamic bolted metal I beams to the bottom of the shredder. The I beams enabled Dynamic to lift the shredder and set it atop a dumpster so that during operation the shredded tire particles would fall into the dumpster. However, Dynamic was unable to use the shredder immediately because of an electrical problem in the company’s facility. On March 8 Dynamic rented an appropriate generator and began to operate the shredder but noticed problems almost right away. While the machine shredded the tires fed into it with no apparent difficulty, the shredded material would not properly fall away from the machine into the dumpster even though there was approximately eight feet between the bottom of the shredder and the floor of the dumpster. It appeared that the shreddings were somehow being drawn back into the cutting area, and after 40 or 50 tires were shredded the machine would become clogged and bound with shreddings. Dynamic employees would then have to clear it manually. As a result, Dynamic was able to shred only 200 to 250 tires per day. There was testimony that the AZ-45, when working properly, was capable of shredding one tire every seven seconds, or about 500 an hour.

Charles Bendig phoned Shred Pax and requested help in determining what was wrong. Bendig testified that A1 Kaczmarek, president of Shred Pax, came to Dynamic and investigated the problem. On Kaczmarek’s recommendation, according to Bendig, Dynamic removed one set of “side fingers” from the shredder, but the machine continued to clog.

Bendig called Kaczmarek, who again went to Dynamic’s site. This time, according to Bendig, Kaczmarek recommended that a conveyor belt be attached to the machine to carry the shreddings away.' Kaczmarek denied that he or Shred Pax ever made such a recommendation. He did, however, testify that the clogging of Dynamic’s machine occurred because the shredded tires were not being cleared away from the cutting surface of the machine quickly enough, thereby causing a “bridging” problem and backup of the shreddings into the hopper of the shredder. Dynamic installed a conveyor belt, but, according to Kaczmarek’s testimony, he later told Bendig that the belt was not mounted properly in that there was not sufficient clearance between the belt and the cutting knives. Dynamic presented evidence to show that it had installed the conveyor in accordance with Kaczmarek’s specifications. Dynamic did not change or reinstall the conveyor belt.

As of mid-April 1985 the shredder was still not operating correctly even with the conveyor belt in place. Kaczmarek visited the site once more and, according to Bendig, recommended that a stream of water be installed to act as a lubricant for the shredded material. When asked by plaintiff’s counsel if Shred Pax had recommended the addition of a water distribution system, Kaczmarek responded, “Possibly.” The water was added by Dynamic but did not relieve the clogging problem. At this time Bendig told Kaczmarek that Dynamic could not keep operating if the shredder could not do its job and asked that Shred Pax take the machine back. Kaczmarek responded that he did not want to take it back but would try to sell it for Dynamic.

Early in May Shred Pax’s chief engineer, Win Kaczmarek, went to check the shredder regarding a possible bad bearing. According to Bendig’s testimony, Win Kaczmarek told him he was not surprised the shredder was not operating properly because it was not set up to shred auto tires but rather for truck tires. Bendig testified that, when he told A1 Kaczmarek about this, Kaczmarek responded that Dynamic could buy new knives and other parts to correct the problem and have the parts installed, at a total cost of about $14,000. Not long after this, Bendig told A1 Kaczmarek that Dynamic was going out of busi-. ness and asked that Shred Pax take back the AZ-45. Kaczmarek again refused but indicated he would try to sell the machine. Dynamic subsequently stopped all operations and stored the shredder, first in a semitrailer and later on its site but not sheltered. At the time of trial the shredder remained in Dynamic’s possession.

Dynamic offered evidence to show that, as a result of the shredder’s failure to function properly, it had lost its customers and future profits and had suffered a monetary loss in disposing of the tires it had not been able to shred. The total amount of losses claimed by Dynamic was $32,377, not including the cost of the shredder.

In May 1986 Dynamic’s attorney wrote to Shred Pax indicating that Dynamic revoked its acceptance of the shredder, and in February 1987 Dynamic filed this counterclaim. Count I of the counterclaim alleged that Shred Pax had breached an express warranty. Counts II and III alleged breaches of the implied warranties of merchantability and fitness for a particular purpose. In count III Dynamic alleged that it had revoked its acceptance of the shredder, and count V alleged a third-party beneficiary claim. The trial court found in favor of Shred Pax on all counts except count II, which alleged a breach of the implied warranty of merchantability. On count II the court awarded Dynamic damages in the amount of $49,500, which was the amount Dynamic had originally paid for the shredder. After its post-trial motion was denied, Shred Pax timely filed this appeal, and Dynamic filed a cross-appeal from the trial court order denying it consequential damages.

Shred Pax urges initially that the finding of a breach of the implied warranty of merchantability cannot stand because it is inconsistent with the finding in its favor on the count for implied warranty of fitness for a particular purpose. Shred Pax takes the position that the trial court’s decision on the fitness count implied that it had made a determination that the shredder was fit for its particular propose. Defendant then argues that it is legally inconsistent for the court to have found that the shredder, even though it was fit for its particular purpose, was not merchantable, i.e., not fit for the ordinary purposes for which it is used. (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 314(2)(c).) Dynamic responds that the record does not support the assumption made by Shred Pax that the trial court had found the shredder to be fit for its particular purpose. We agree with Dynamic.

The trial court did not make findings of fact relative to either of the warranties under discussion. Shred Pax cites the rule that, when the judgment of the trial court is not supplemented by findings of fact, a presumption may be made that the trial court found all controverted facts in favor of the prevailing party. (Century 21 Castles By King, Ltd. v. First National Bank (1988), 170 Ill. App. 3d 544, 549.) This rule, however, assumes the court actually considered disputed facts in arriving at a conclusion. The record here indicates that the trial judge never even dealt with factual questions relating to the fitness warranty because Shred Pax had convinced him the warranty was not applicable.

In its amended answer to plaintiff’s counterclaim, Shred Pax alleged that Dynamic was not entitled to an implied fitness warranty because such a warranty had been excluded by the written warranty Shred Pax had given on the shredder. Both proposals made to Dynamic included warranty language. While Shred Pax’s counsel indicated that the warranty printed on the first proposal was the effective one, the two warranties were virtually identical in wording, and both proposals were admitted as evidence. During closing argument, counsel for Shred Pax contended that the implied fitness warranty had been excluded by the language used in Shred Pax’s own warranty and cited to the court the statutory basis which permitted such an exclusion. This argument was then addressed at some length during rebuttal. Dynamic’s counsel particularly focused on the warranty of merchantability and cited the court to both statutory language and case law to show that defendant had not excluded that warranty.

The statute referred to by both counsel is section 2 — 316 of the Uniform Commercial Code (Code) (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 316). The relevant language of the statute provides:

“[T]o exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that ‘There are no warranties which extend beyond the description on the face hereof.’ ” (Ill. Rev. Stat. 1987, ch. 26, par. 2-316(2).)

The pertinent language of the warranty given to Dynamic, as found in Shred Pax’s first proposal, is as follows:

“Such repair or replacement by Shred Pax Corporation or its dealers constitutes a discharge of all S.P.C. liabilities. The foregoing Warranty is exclusive and in lieu of all other warranties whether written, oral or implied.”

The parties did not dispute that implied warranties can be excluded if the exclusionary language meets the statutory standard.

When the court rendered its decision it addressed each count of the counterclaim individually. The judge first disposed of counts I, IV and V, as well as the question of consequential damages. The court then said:

“However, the plaintiff was a buyer and — the defendant was a seller and the plaintiff was a buyer of a remanufactured AZ-45 which failed to meet the implied warranty of merchantability.
Neither of the warranties in Plaintiff’s Exhibit 1 or 2 conspicuously exclude or modify the implied warranty of merchantability.”

During trial the judge had been presented with exhibits, statutes, case law, and arguments regarding the exclusion of implied warranties. Judging from his remarks, he had carefully considered all of the above in order to determine that the implied warranty of merchantability had not been excluded. We note that the statute allows exclusion of the implied fitness warranty and that Shred Pax’s warranty includes language which could lead the trial court to determine that it had been excluded. Since this is precisely what counsel for Shred Pax argued, we think it is reasonable to conclude that the trial court was persuaded that Shred Pax had successfully excluded the implied warranty of fitness for a particular purpose. In such case, the trial court did not need to decide whether, as a matter of fact, the shredder was fit for a particular purpose. We are of the opinion that the lower court did not make any factual determinations on this matter. Accordingly, the trial court’s holding in favor of Shred Pax on plaintiff’s count for breach of the implied fitness warranty does not imply that the court found the shredder to be fit for a particular purpose. It follows that the lower court’s holding regarding the warranties of fitness and merchantability are not inconsistent and may be allowed to stand.

Shred Pax next avers that the evidence does not support the finding of the trial court that there was a breach of the implied warranty of merchantability. Specifically, Shred Pax argues that (1) there was insufficient evidence that the shredder was not merchantable, (2) Dynamic cannot recover because it improperly operated the machine, and (3) Dynamic failed to establish that there was a defect in the shredder when it left Shred Pax’s control. Resolution of each of these claims turns in varying degrees on disputed factual questions. In a bench trial, the judge, as the trier of fact, is in a superior position to make determinations about the credibility of the witnesses and the weight to be given their testimony. (Aetna Insurance Co. v. Amelio Brothers Meat Co. (1989), 182 Ill. App. 3d 863, 865.) Moreover, a trial court’s finding will not be disturbed on review unless it is manifestly against the weight of the evidence. Century 21 Castles By King, Ltd. v. First National Bank (1988), 170 Ill. App. 3d 544, 549.

The parties agree that goods are merchantable when they are fit for the ordinary purposes for which such goods are used. (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 314(2)(c); Crest Container Corp. v. R.H. Bishop Co. (1982), 111 Ill. App. 3d 1068, 1073.) Shred Pax insists that the ordinary purpose of the shredder was to shred tires and that the evidence showed the machine did that job. Dynamic admits that there was a showing that the AZ-45 shredded tires but points to the testimony that it also clogged after 40 to 50 tires and urges that the concept of merchantability must be examined in the context of the parties’ contractual agreements. We agree with Dynamic’s position insofar as it means all of the evidence must be considered.

Undisputed testimony revealed that the AZ-45 would successfully shred the first 40 to 50 tires that were placed into it. However, the bald fact that it would shred some tires, when weighed against all the other evidence, is not enough to establish that the machine was merchantable. The trial court correctly considered the totality of the evidence in order to determine the ordinary purposes for which the AZ-45 was used and whether the shredder sold to Dynamic was fit for those purposes.

There was abundant evidence that the shredder was supposed to be able to shred auto tires in far greater volume and for longer periods of time than it was doing for Dynamic. Charles Bendig and Thomas Duffy had explained to a Shred Pax salesman that they needed a shredder in order to operate a tire disposal business. The salesman assured them the AZ-45 would fit the bill. A Shred Pax sales brochure regarding the model AZ-45 indicated:

“The AZ-45 Model has extensive versatility and capacity. It handles up to 2,000 pounds of Type-0 waste per hour under controlled input.” Al Kaczmarek testified that the maximum capacity of the AZ-45 was one tire every seven seconds. Ernie Force, who had used Shred Pax AZ-45’s to shred tires in his tire recycling business, testified that the AZ-45 “shreds about, I guess, three hundred an hour, four hundred an hour, depending on the size of the tire.” Shred Pax’s first proposal, for a new AZ-45, specified that the intended usage was: “To shred approximately 250 car tires with a 2+2 + 2 system.” Based on the other evidence it can safely be assumed the proposal meant the machine could be expected to shred about 250 car tires per hour. Charles Ben-dig’s testimony was that he understood the shredder was “to do a minimum of 250 tires an hour as a used machine.”

Even taking into consideration that the shredder Dynamic purchased was remanufactured rather than new, we think the trial court could reasonably conclude from this evidence that the ordinary purpose of the AZ-45 purchased by Dynamic was to shred a minimum of 250 auto tires in an hour and to do so on a continuous basis.

Dynamic’s evidence on the unfitness of its shredder must be viewed in light of the “ordinary purpose” set out above. The evidence showed that Dynamic’s shredder would shred only 40 to 50 tires and then bind up such that the whole process would have to be stopped, the machine cleared, and the process started over again. Charles Ben-dig testified that the shredder clogged at least four or five times a day and that Dynamic was only able to shred about 200 tires per day. Shred Pax never seriously disputed that the machine would process only so many tires and then stop. In light of the “ordinary purpose” of the AZ-45, the evidence that Dynamic’s shredder was unfit fully supports the trial court’s finding that Shred Pax breached the implied warranty of merchantability.

Shred Pax also attacks the trial court’s judgment on the ground that Dynamic is precluded from recovery because it improperly operated the AZ-45 shredder. Defendant claims that, while the shredder was supposed to shred tires one at a time, Dynamic would put 25 tires in at once and then fail to clear out the shreddings that collected underneath the machine, thus preventing it from working properly. Shred Pax also charges that Dynamic improperly installed a conveyor belt on the shredder.

Shred Pax’s allegation that Dynamic overloaded the shredder is not supported by the' record. Shred Pax claims that Richard Jarvis, an employee of Dynamic, testified that 25 tires would be dumped into the machine all at once, causing an accumulation of shredded material. What Jarvis actually testified to, on cross-examination, was that 25 or 30 tires were loaded on to a pallet and moved close to the shredder by a forklift. On direct, Jarvis clearly testified that the Dynamic employees usually only loaded one tire at a time. When they would see one tire grab, they would throw another one in. Shred Pax’s allegation is baseless.

With regard to Shred Pax’s allegation that Dynamic improperly installed a conveyor belt, thus causing the machine to malfunction, we observe initially that several of Dynamic’s witnesses testified that the machine was binding and stopping before the conveyor belt was installed. Nevertheless, as to the issue raised by Shred Pax, Dynamic does not dispute that it added a conveyor belt. However, both Charles and Ronald Bendig testified that A1 Kaczmarek recommended that the belt be installed. Ronald Bendig, who indicated that he had had experience working with conveyor belts when he was a shop supervisor for a conveyor company, testified that he had installed the belt according to Kaczmarek’s directions. Kaczmarek, on the other hand, denied both making a recommendation regarding a conveyor belt and providing directions for installation of such a belt. He also testified that the conveyor belt had been installed too close to the cutting surface of the shredder and was the cause of the “bridging” which prevented the shredder from operating properly. In a bench trial it is for the judge to pass on the credibility of the witnesses and resolve questions of fact, and the trial court’s decision should not be overturned unless it is against the manifest weight of the evidence. (Abatron, Inc. v. Fulton Contracting Co. (1988), 175 Ill. App. 3d 692, 700.) If believed, Dynamic’s evidence supports the trial court finding that the company’s installation of a conveyor belt did not cause the problem with the shredder and, therefore, was not a bar to recovery.

Shred Pax’s final contention regarding insufficient evidence is that Dynamic failed to show that there was a problem with the shredder when it left Shred Pax’s control. Essentially, Shred Pax’s argument is that most of the evidence indicated that the trouble with the shredder occurred after Dynamic bolted I beams and attached a conveyor belt to the machine.

It is uncontested that Dynamic attached the I beams to the shredder in order to raise the machine prior to using it. However, we are unable to find even a hint of evidence in the record to intimate that the I beams had any effect of any sort on the functioning of the AZ-45. In the absence of evidence, the trial court could have concluded the addition of the I beams was not related to the dysfunction of the shredder.

As for the attachment of the conveyor belt, it is true that testimony was given that the machine clogged after the conveyor was added, but there was also ample evidence that the shredder was not working properly from the very first time it was turned on. It is apparent from the record that the machine was initially operated without the conveyor. Charles Bendig testified that he noticed at the outset that the machine would tear the tires apart but they would not empty out of the machine. He said the tires “would stay clogged and circulate around the cutters in the machine.” Richard Jarvis indicated that the shredder clogged and that “the tires couldn’t fall out of the bottom of the machine. They would gather in the forks and knives.” According to Ronald Bendig’s testimony, he observed “a large amount of rubber and steel clinging to the underside of the shredder itself. It was never able to clean itself out, in my opinion, of the debris that was underneath.” Dynamic’s witnesses also testified that the shredder was initially placed on top of a dumpster so the shreddings could fall into the dumpster. The conveyor was added only after they saw that the shredded material was not falling and the machine was binding. Finally, Charles Bendig testified that Win Kaczmarek told him the AZ-45 was set up to shred truck tires rather than auto tires. It is not contested that Shred Pax set up the machine prior to delivery.

Cumulatively, the evidence was adequate to persuade the trial court that the problem with the AZ-45 existed when the machine left Shred Pax’s control. In Burrus v. Itek Corp. (1977), 46 Ill. App. 3d 350, the court stated that the fact that the defects complained of by the buyer were apparent immediately after delivery was “strong evidence” against a finding that the problems were caused by the buyer’s improper maintenance after delivery. (Burrus, 46 Ill. App. 3d at 355.) Likewise, in this case we think the failure of the shredder to operate properly at the outset is strong evidence against a finding that the problems were caused by either Dynamic’s modifications or improper operation of the machine. The finding of the trial court is not against the manifest weight of the evidence unless an opposite conclusion is clearly evident. (In re Application of Kane County Collector (1985), 135 Ill. App. 3d 796, 805.) A conclusion opposite to that reached by the trial court is not clearly evident to us.

We now consider Shred Pax’s final claim, that Dynamic was awarded an excessive amount of damages. Defendant takes the position that the Uniform Commercial Code (Ill. Rev. Stat. 1987, ch. 26, par. 1 — 101 et seq.) permits the limitation of remedies for breach of the implied warranty of merchantability and that, through the language of the warranty on the AZ-45, it effectively limited Dynamic’s remedies to repair or replacement of the nonconforming shredder.

We acknowledge that the Code allows limitation of remedies and that Shred Pax’s warranty included limiting language. Nevertheless, as prompted by plaintiff, we look to section 2 — 719(2) of the Code (Ill. Rev. Stat. 1985, ch. 26, par. 2 — 719(2)), which provides:

“(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this Act.”

The evidence in this case is sufficient to sustain a finding that the limited remedy espoused by Shred Pax failed of its essential purpose.

When it contracted with Shred Pax for the AZ-45, Dynamic knew that the remedy for breach was limited to repair or replacement. But it could not have not known that when a breach occurred Shred Pax would refuse to honor the very remedy it had chosen to offer Dynamic. Dynamic was entitled to expect Shred Pax to repair or replace within a reasonable amount of time after Shred Pax became aware that the shredder did not conform to the contract. See Adams v. J.I. Case Co. (1970), 125 Ill. App. 2d 388.

The record leaves little, if any, doubt that Dynamic contacted Shred Pax immediately upon discovering that the shredder was not performing properly. Dynamic subsequently communicated not once, but many times, with Shred Pax, seeking and following its advice and asking for assistance. Finding its efforts to be of little avail with regard to the solution of the clogging problem, Dynamic finally asked Shred Pax to take the machine back but again received no satisfaction. Dynamic subsequently went out of business and stored the shredder. For Shred Pax to now insist on remedying its breach by repairing or replacing the machine is no remedy at all. Shred Pax’s limited remedy must be read to include a requirement that repair and replacement be performed within a reasonable time of discovery of the breach. Under the circumstances of this case a reasonable time would have been before Dynamic started losing customers and going out of business.

The evidence shows Shred Pax had been made aware that Dynamic was just starting out in business, its only business was tire disposal, and the success of the business was entirely dependent upon the peak operation of the shredder. Furthermore, Charles Bendig testified that he alerted Al Kaczmarek that Dynamic was having financial problems because the machine was experiencing so much down time. Despite its awareness of Dynamic’s precarious position, Shred Pax failed to honor its warranty. After Dynamic ceased operations the warranty amounted to little more than a hollow and useless promise. Consequently, the limited remedy set forth in Shred Pax’s warranty has failed of its essential purpose, and Dynamic’s recovery is not limited to repair costs.

Shred Pax argues further that even if Dynamic is entitled to damages, the amount of damages must be limited to what is prescribed by the Code. Defendant states that the Code’s measure of damages is the difference between the value of the goods accepted and the value they would have had as warranted (see Ill. Rev. Stat. 1987, ch. 26, par. 2 — 714(2)), rather than the purchase price of the nonconforming goods, such as was given to Dynamic. We agree with Shred Pax’s delineation of the measure of damages for breach of warranty but find that we must look beyond the measure itself to the language in section 2 — 714(2) which allows an exception to be made to the general rule when “special circumstances show proximate damages of a different amount.” (Ill. Rev. Stat. 1987, ch. 26, par. 2— 714(2).) The “special circumstances” exception must be viewed in light of section 1 — 106 of the Code, which provides that the remedies found in the Code “shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed.” (Ill. Rev. Stat. 1987, ch. 26, par. 1 — 106(1).) Upon reading these two sections together and applying them to this case, we find that the trial court exercised sound discretion in awarding Dynamic the amount it had paid for the shredder.

Section 2 — 714(2) seeks to make an aggrieved buyer whole again, at least in economic terms. When the section is applied, the buyer keeps the nonconforming goods but is given damages to make up for the decreased value of those goods. This approach assumes the goods have value for the buyer. The measure of damages of section 2 — 714(2) would have been an adequate measure in this case if Shred Pax had paid damages to Dynamic in a timely fashion following delivery of the nonconforming shredder. At that point in time the machine, even though not working quite right, had great value for Dynamic. If damages had been paid, Dynamic might have had the shredder repaired and, in that way, been made whole. Instead, at least in part due to the shredder not working right, Dynamic closed up, and the AZ-45 was relegated to storage. There was evidence that even after Dynamic shut down, both Dynamic and Shred Pax tried unsuccessfully to sell the AZ-45. At this point the shredder, being of no use, and evidently not being saleable, had no value to Dynamic. Thus, Dynamic could not be made whole by an award in an amount equal to only the decreased value of the shredder. In our view these facts reveal the kind of special circumstances in which the Code allows damages in an amount greater than that prescribed by section 2 — 714(2).

A conclusion similar to the one we reach here was reached by the court in Toyomenka (America), Inc. v. Combined Metals Corp. (1985), 139 Ill. App. 3d 654, where the processed steel sold to the buyer was found to be not fit for the use of the buyer’s customer. It was not disputed that the steel was worthless if not fit for the customer’s use. Citing the “special circumstances” exception and the mandate of the Code that its remedies are to be liberally administered, the court awarded the buyer the contract price and consequential damages. As it did in Toyomenka, the “special circumstances” provision of the Code justifies the damage award to Dynamic in an amount equal to the purchase price of the shredder.

Turning now to Dynamic’s contention that the trial court should have awarded it consequential damages, we find that Dynamic offers little support for its position. In essence, Dynamic argues that it is entitled to consequential damages because it showed that Shred Pax’s limited remedy failed of its essential purpose. While this may or may not be true, it is not relevant because, judging from the record, it does not relate to the grounds for the trial court’s decision. When announcing its disposition of this case, the trial court said relative to this issue:

“The proferred evidence of consequential damages is inconclusive and therefore, it does not rise to the level of more probably true than not true.”

It is apparent the court had not been persuaded by Dynamic’s proof that Dynamic was entitled to $32,377 in consequential damages. Thus, it does not matter whether Dynamic had shown the failure of the limited remedy since that was not the basis for the court’s finding. Moreover, nowhere does plaintiff make an argument that the court’s decision was not supported by the evidence. As far as we can discern, plaintiff has neither asserted nor demonstrated to us any error on the part of the trial court. Absent an allegation of error, we are at a loss as to what relief plaintiff seeks in this court. The trial court decision will stand.

For all of the reasons set forth above, the judgment of the circuit court of Du Page County is affirmed in all respects.

Affirmed.

McLAREN and GEIGER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN GAGLIANI, Defendant-Appellant.
    Second District
    No. 2 — 89—0319
    Opinion filed March 12, 1991.

      Robinson & Skelnik, of Elgin (Mary Robinson, of counsel), for appellant.

      James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Steven Gagliani, was charged by indictment with home invasion (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 11), residential burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 3), armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2(a)), and two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(a)(1)). Following a jury trial, defendant was found guilty of each offense and was sentenced to 30 years’ imprisonment for home invasion and each sexual assault conviction, along with eight years for residential burglary, each term to run concurrently. In addition, defendant was sentenced to 12 years’ imprisonment for armed robbery to run consecutive to the other convictions. Defendant filed a timely notice of appeal.

On appeal, defendant contends that he was denied a fair trial when the State’s Attorney improperly cross-examined him concerning his failure to volunteer information to police officers after he was given his Miranda warnings. In addition, defendant asserts that the trial court erred in sustaining one of the State’s hearsay objections at trial and that the court abused its discretion in sentencing him to the lengthy terms of incarceration. We reverse and remand.

The following evidence was adduced at trial. The victim, Gwen, testified that she returned home from work on August 2, 1988, at approximately 10:10 p.m. Gwen went into her bedroom shortly after she arrived home and turned on her air conditioner due to the heat. However, she turned the air conditioner off before she went to bed because it wasn’t working properly. Gwen indicated that she was wearing underwear, a bra and a T-shirt when she went to bed, but removed her bra and T-shirt “because it was real hot.” She fell asleep watching television but woke up when she heard a noise in her house. It was at this time that Gwen saw defendant in her bedroom.

Gwen stated that she then asked defendant what he was doing in her house, and defendant told her “to shut up or he would smash [her] brains in.” Defendant had a nightstick in his hand at this time. Defendant attempted to turn off the television set and told Gwen not to look at him while he did so. However, Gwen managed to see defendant’s reflection in the mirrors located near the television set.

After turning off the television, defendant told Gwen to come to the edge of the bed and to put his penis in her mouth. Defendant told Gwen that he would kill her if she did not do what he said. Defendant then got into bed with Gwen and forced her to engage in more oral sex. Thereafter, defendant told Gwen to remove her underwear, and defendant proceeded to have vaginal intercourse with her. Defendant had the nightstick in his hand at all times during the assault.

Defendant then told Gwen that he wanted her car keys, and he followed her downstairs to get them. Gwen gave the keys to defendant, opened the front door for him, and was told that she would be killed if she called the police. After defendant got her car started and drove away, Gwen attempted to call the police, but her phone wasn’t working. She got dressed, went over to a neighbor’s house and asked her neighbor to call the police. The police arrived shortly thereafter, and Gwen was taken to a local hospital via an ambulance for an examination.

The following day, Gwen went to the Glendale Heights police department to get her car back. While she was there, she was asked to view six black and white photographs to assist the officers in their investigation. Gwen identified defendant from the photographs as the perpetrator of the offenses.

Gwen further testified that defendant removed money, a watch and a ring from her house that night. She also stated that she had never seen defendant before that night and that he did not have permission to be in her home. In addition, Gwen never consented to having sex with defendant.

On cross-examination, Gwen testified that the nightstick that defendant used to threaten her was actually hers. Defendant did not hit her with the nightstick but only used it to threaten her. Gwen also stated that she picked up a paring knife, with a two-inch blade, immediately after she first saw defendant in her room, but dropped it after defendant told her not to “even think about it.” Gwen also noted that a screen in one of her basement windows was cut in two different places, although it was not in that condition before August 2,1988.

Jerome Zacny testified that he was Gwen’s neighbor who assisted her during the early morning hours of August 3, 1988. Zacny stated that he was awakened by a pounding at his front door. Zacny opened the door and saw Gwen standing outside. Gwen “had a very frightened look on her face” and told Zacny that someone had just broken into her house. Zacny then went into his kitchen to call the police. After the telephone call, Gwen told Zacny, along with his two daughters, that a young, white male had raped her that night.

Officer Ronald Kirstein of the Glendale Heights police department testified that he responded to Zacny’s telephone call and arrived at Zacny's house at approximately 1:45 a.m. on August 3, 1988. Officer Kirstein met with Gwen and described her as emotionally upset, crying, and depressed. Following a short conversation, Gwen and Kirstein went to Gwen’s house. Kirstein observed an open window in the basement with the screen torn near the latches.

On cross-examination, Officer Kirstein stated that Gwen told him that she was unable to see the intruder’s face that night. Gwen also made no reference to observing defendant’s face through a reflection in the mirror. In addition, Kirstein did not observe any cuts, scratches or bruises on Gwen’s face.

Detective Gary Harrison of the Glendale Heights police department testified that he performed a “walk-through” investigation at Gwen’s house in the early morning hours of August 3, 1988. Detective Harrison observed an open window in the basement, with two holes punched in the screen. In addition, there was a purse, two jewelry boxes, and some jewelry lying on the basement floor. Harrison also obtained several latent fingerprint lifts from Gwen’s house, including lifts from her television and automobile. Detective Harrison then spoke with Gwen later that morning at the hospital. Gwen appeared to be upset and withdrawn during the conversation.

Later that afternoon, Detective Harrison received a telephone call from the crime lab concerning the fingerprint lifts. Based on information received from the lab, Harrison prepared a photographic lineup for Gwen to view. Gwen picked defendant’s photograph out of the six photographs which appeared in the lineup.

At approximately 4 p.m. on August 4, 1988, Detective Harrison, along with another detective, went to defendant’s house. Defendant lived near Gwen’s house in Glendale Heights. Detective Harrison spoke with defendant and told him that defendant had been identified, through a photographic identification and fingerprint match, as the perpetrator of an “incident” at Gwen’s house. Harrison read defendant his Miranda rights and asked him why his fingerprint was found in the house and why he was identified from a lineup. Defendant indicated that he did not know what Harrison was talking about and that he “didn’t have anything to do with the incident.” The officers then left defendant’s house.

On August 4, 1988, Detective Harrison obtained an arrest warrant and proceeded to arrest defendant. Defendant was taken to the Glendale Heights police department, was permitted to telephone his mother, and was then read his Miranda rights. Defendant signed a preprinted card indicating that he understood each of his rights. Defendant continued to deny any involvement in the offenses. After a short period of time, defendant began to cry and told Detective Harrison that “he did it.” Defendant stated that he could not have told Harrison earlier in the day because his mother was present. Defendant intended to burglarize the house that night, but “he didn’t know what happened” to him when he saw Gwen lying on her bed with only her underwear on. Defendant also indicated that he was drunk that night and that he felt “so bad for that lady.”

On cross-examination, Detective Harrison testified that he suspected defendant may have perpetrated the offenses even before the fingerprint results came back from the crime lab. In addition, defendant did not put any of his statements concerning his confession following the arrest into writing. In addition, even though defendant told Harrison that he was drunk that night, Gwen did not smell alcohol on defendant’s breath.

Christine Sahs, a forensic chemist for the Du Page County sheriff’s department, testified that she examined the vaginal smear taken from Gwen at the hospital and determined that it contained the presence of spermatozoa.

Detective Paul Sahs of the Du Page County sheriff’s department testified that he compared the latent fingerprint lifts taken from Gwen’s house to those found on defendant's fingerprint card and found them to match. In particular, Detective Sahs observed matches on the prints lifted from the television set and automobile. On cross-examination, Sahs indicated that no latent prints were found on the nightstick.

Following the admission of stipulated testimony, the State rested. The first witness for the defense was Bernadette Gagliani, defendant’s mother. Mrs. Gagliani testified that she was at home on August 4, 1988, at approximately 4 p.m. when Detective Harrison arrived at her house. Harrison, along with his partner, told Mrs. Gagliani and defendant what had happened to Gwen and indicated that defendant may have been involved. Harrison read defendant his Miranda rights, and defendant told the officers that he did not know anything about the crimes.

After the officers left, Mrs. Gagliani made an appointment with an attorney to discuss the situation. After defendant spoke with an attorney, he and his mother returned home. Defendant left shortly thereafter to attend his class at a local college. Detective Harrison returned to the Gagliani residence about 30 minutes after Mrs. Gagliani arrived and told her that he had an arrest warrant for defendant. Mrs. Gagliani told Harrison where he could find defendant. Defendant telephoned Mrs. Gagliani nearly two hours later and told her he was in police custody.

Defendant testified at trial that he was 18 years old on August 3, 1988, was unemployed, and was attending classes at the College of DuPage. Defendant stated that he had four previous felony convictions, two involving theft of automobiles and two involving possession of stolen motor vehicles. Defendant pleaded guilty to each offense.

Defendant also stated that he met Gwen at a local grocery store parking lot approximately six weeks before he was arrested for this offense. Defendant assisted Gwen in loading groceries into her car, and Gwen recognized him as being one of her neighbors. Although defendant did not initially recognize her, he later realized that they were neighbors after she told him where she lived. Gwen gave defendant a ride home from the grocery store and invited him into her house to have a beer with her. Defendant left the house after he finished his beer.

Defendant went to Gwen’s house approximately three other times before he arrived at 10 p.m. on August 2, 1988. On this day, defendant went downstairs and sat on the sofa next to Gwen. They “started talking and stuff and started messing around.” Defendant removed Gwen’s jeans in the basement, and they then went upstairs to have sex. Following the sexual activity, defendant asked Gwen if he could borrow her car to get cigarettes. Gwen became upset but eventually allowed him to use the car. Defendant took the car to a local 7-Eleven and returned about 15 minutes later. At this time, defendant observed a police squad car in Gwen’s driveway. Defendant stated that he “didn’t know what was going on” and “got scared” because he was on felony probation at that time. Defendant parked the car down the street, left the keys in the car, and went home.

Defendant also indicated that he had sex with Gwen on three separate occasions before August 2, 1988. In addition, he also borrowed her car twice before he did so on the night in question.

Defendant then stated that Detective Harrison, along with his partner, came to defendant’s house on August 4, 1988, to investigate a home invasion and sexual assault. Defendant told the officers that he did not know what they were talking about. After the officers left, defendant and his mother went to speak to an attorney. Later that night, defendant was placed under arrest. Defendant denied making any statements to Detective Harrison following his arrest.

On cross-examination, defendant testified that he told Detective Harrison during the initial interview that he did not know anything about a home invasion or sexual assault. In addition, he told Harrison that he did not know how his fingerprints could be found in Gwen’s house, even though he had been in the house on four or five different occasions and actually did know how his prints got in the house.

Following defendant’s testimony, the defense rested. The State recalled Gwen in rebuttal, and she testified that she rarely goes into the basement because she is allergic to a cat which lives in the basement. Following Gwen’s brief testimony, both sides rested. After closing arguments, the jury returned guilty verdicts as to each offense charged. Defendant’s motion for a new trial was denied, and the court sentenced defendant to the previously mentioned terms of imprisonment. This appeal followed.

Defendant first contends that he was denied a fair trial when the State’s Attorney repeatedly cross-examined him concerning his failure to offer an exculpatory version of events to the police officers during the initial questioning. Defendant argues that the improper questioning violated the holding of Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, and deprived him of due process of law.

In Doyle, the Supreme Court held that the State could not impeach a defendant’s exculpatory story by cross-examining the defendant about his failure to tell the story to police officers following his arrest and subsequent Miranda warnings. (Doyle, 426 U.S. at 611, 49 L. Ed. 2d at 94, 96 S. Ct. at 2241.) The Court determined that Miranda requires such a result due to the fundamental unfairness which would occur if post-arrest silence could be used to impeach a defendant’s testimony at trial. 426 U.S. at 618, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245.

In Jenkins v. Anderson (1980), 447 U.S. 231, 65 L. Ed. 2d 86, 100 S. Ct. 2124, the Court clarified the Doyle decision and determined that Doyle does not apply in situations in which Miranda warnings were not given. Jenkins, 447 U.S. at 240, 65 L. Ed. 2d at 96, 100 S. Ct. at 2130; see also Fletcher v. Weir (1982), 455 U.S. 603, 607, 71 L. Ed. 2d 490, 494, 102 S. Ct. 1309, 1312 (cross-examination concerning a defendant’s post-arrest silence is permissible if Miranda warnings have not been administered).

Defendant points out that the statements in Doyle were very similar to those present in this case. In Doyle, the defendant testified at trial that he was innocent of any criminal wrongdoing and that the charges were the result of a “frame-up.” On cross-examination, the prosecutor asked the defendant why he did not tell the police officers about the frame-up or protest his innocence following his arrest. The defendant noted that he only asked the officers “[wjhat’s this all about?” (Doyle, 426 U.S. at 614-15 n.5, 49 L. Ed. 2d at 96 n.5, 96 S. Ct. at 2243 n.5.) The defendant’s response occurred after he was placed under arrest and read his Miranda rights.

In the case at bar, defendant was read his Miranda rights, even though he was not initially placed under arrest, and was asked what he knew about the incident. Defendant responded that he did not know what the officers were talking about. In addition, defendant also told the officers that he did not know how his fingerprints could have gotten in Gwen’s house. At trial, defendant admitted to being in Gwen’s house on the night in question and indicated that they engaged in consensual sexual intercourse that night.

The questions which form the basis for defendant’s first contention on appeal occurred during the State’s cross-examination of defendant with respect to his failure to tell Detective Harrison about the events as he testified to at trial. The questions concerning defendant’s prearrest discussion with Harrison included:

“This was your opportunity at that point in time, was it not, to tell Gary Harrison you were at the home on August 2nd and August 3rd?

* * *

You had the opportunity on August 4th of 1988 to tell Gary Harrison that you didn’t do this home invasion and you were

not a part of this rape, didn’t you?

* * *

You didn’t ask Gary Harrison or Commander Bosh to step aside so that you could tell them your version of what went on, did you?”

The trial court sustained defendant’s objections to each of these questions. The State continued this line of questioning to include defendant’s post-arrest opportunity to proclaim his innocence to Harrison by asking defendant: “[s]o this was another opportunity where you had to tell the police what happened that night.” Defendant’s objection to this question was also sustained.

The State raises several arguments to support its contention that the cross-examination questions did not deny defendant a fair trial in this case. The State argues that: (1) defendant waived the issue because it was not raised in his post-trial motion; (2) no prejudicial error occurred in the cross-examination; (3) the “Tacit Admission Rule” applies; and (4) any error was harmless beyond a reasonable doubt. We will address each of the State’s arguments in turn.

With respect to the State’s waiver contention, we note that the State correctly points out that defendant failed to raise the alIeged Doyle violation claim in his motion for a new trial. The failure to raise an issue in a motion for a new trial constitutes waiver of the issue on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186-87, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274; People v. Holmes (1989), 198 Ill. App. 3d 766, 778.) However, the waiver rule does not apply in cases in which plain error is present. Pursuant to Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)), this court may take notice of any errors which affect substantial rights, even if those errors were not brought to the trial court’s attention. (People v. Britz (1988), 123 Ill. 2d 446, 486, cert. denied (1989), 489 U.S. 1044, 103 L. Ed. 2d 242, 109 S. Ct. 1100; Enoch, 122 Ill. 2d at 189.) Other court decisions have determined that a potential Doyle violation, in cases in which the evidence is closely balanced, should be treated as plain error for purposes of review. (See People v. Nolan (1987), 152 Ill. App. 3d 260, 264; People v. McMullin (1985), 138 Ill. App. 3d 872, 876.) We find the evidence in this case to be closely balanced. Thus, we will review this issue raised as a matter of plain error.

We agree with defendant’s contention that the cross-examination was improper in this case in that it violated the holding in Doyle. Defendant was read his Miranda rights, although he was not initially placed under arrest, and was asked if he knew anything about the alleged crimes. At trial, defendant was cross-examined about why he did not tell the police officers the account of events which he offered at trial. This cross-examination was improper because it suggested that defendant’s trial testimony was fabricated due to the fact that he could have told the police officers the same story during the investigation but did not. However, defendant had a constitutional right to remain silent. (Miranda v. Arizona (1966), 384 U.S. 436, 479, 16 L. Ed. 2d 694, 726, 86 S. Ct. 1602, 1630; see also United States v. Hale (1975), 422 U.S. 171, 177, 45 L. Ed. 2d 99, 105, 95 S. Ct. 2133, 2137.) As Hale pointed out, the silence following Miranda warnings can easily be taken to mean that the suspect was exercising his right to remain silent, as opposed to the inference that the explanatory testimony at trial was a recent fabrication. (Hale, 422 U.S. at 177, 45 L. Ed. 2d at 105, 95 S. Ct. at 2137.) Thus, it is our opinion that the cross-examination at issue in the present case violated the due process clause of the fourteenth amendment because it improperly commented upon defendant’s exercise of his constitutional right to remain silent. See Doyle, 426 U.S. at 619, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245.

We find support for our decision in several Illinois cases. In People v. Malkiewicz (1980), 86 Ill. App. 3d 417, this court determined that the defendant’s constitutional rights were violated when the State’s Attorney improperly commented on the defendant’s failure to make an exculpatory statement following arrest. (Malkiewicz, 86 Ill. App. 3d at 420.) The court noted that the defendant’s credibility was an essential part of the case because he was using a consent defense to a rape charge, and thus the comments concerning his post-arrest silence were especially prejudicial because they implied that the defendant had fabricated his consent defense at trial. 86 Ill. App. 3d at 420-21.

Likewise, in People v. Adams (1981), 102 Ill. App. 3d 1129, this court determined that the State’s cross-examination of the defendant resulted in reversible error. We noted that it was highly improper for the State to suggest that “if defendant were innocent she would have so informed the officers immediately after her arrest, and it gave the jurors a basis from which they might conclude that her defense in trial was fabricated.” Adams, 102 Ill. App. 3d at 1133.

Furthermore, we disagree with the State’s argument that any error which occurred during cross-examination was not prejudicial and was thus harmless beyond a reasonable doubt. As we previously indicated, the evidence in this case was closely balanced. The jury in this case was, by necessity, required to determine whether Gwen or defendant was a more credible witness. Given that defendant’s credibility was integral to his defense of consent, the improper cross-examination became substantially prejudicial because it gave the jurors an impermissible basis to conclude that his testimony at trial was fabricated and thus incredible. See Adams, 102 Ill. App. 3d at 1133; Malkiewicz, 86 Ill. App. 3d at 421.

We also disagree with the State’s contention that the tacit admission rule applies in this case. This rule, as stated in People v. Bennett (1954), 3 Ill. 2d 357, provides that an admission may be implied from the conduct of a party charged with an offense who remains silent when “one states in his hearing that he was concerned in the commission of the crime, when the statement is made under circumstances which allow an opportunity to him to reply and where a man similarily [sic] situated would ordinarily deny the imputation.” {Bennett, 3 Ill. 2d at 361.) We note, however, that Bennett was decided before Miranda and Doyle. Thus, its holding that silence when accused with criminal activity can be used as an implied admission has been discredited. See People v. Rehbein (1978), 74 Ill. 2d 435, 441, cert. denied (1979), 442 U.S. 919, 61 L. Ed. 2d 287, 99 S. Ct. 2843 (adoptive admission cases have been discredited); People v. Cihak (1988), 169 Ill. App. 3d 606, 614; Nolan, 152 Ill. App. 3d at 267.

In summary, we believe that the State improperly cross-examined defendant about his silence after he was read his Miranda rights. This attempt to impeach defendant’s exculpatory testimony at trial violated defendant’s due process rights and was done in contravention of the holding in Doyle. This error was prejudicial, and thus not harmless, due to the importance of defendant’s credibility at trial and the closely balanced evidence present in this case. Consequently, defendant is entitled to a new trial based upon this error.

We will also consider defendant’s other appellate contention as it may arise again on retrial. Defendant argues that the trial court erred in precluding him, based on the State’s hearsay objection, from adducing evidence of an allegedly material omission in Gwen’s statement. The statement at issue involved whether Gwen told the police officers during their investigation that she saw defendant’s face in her mirror before the assault.

At trial, Gwen testified that she saw defendant’s face in her mirror as defendant was attempting to turn off the television set. On cross-examination, she was unsure whether she had told the investigating officers that she had seen his face. However, she did indicate that she believed she told Detective Harrison that she saw defendant’s face in the mirror. When Detective Harrison testified, defense counsel asked him whether Gwen told him that she saw a reflection of defendant’s face in the mirror. The trial court sustained the State’s hearsay objection.

Defendant acknowledges that he failed to include this issue in his post-trial motion, but requests us to address it as plain error pursuant to Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). Defendant argues that the court’s ruling effectively precluded him from completing an impeachment of Gwen and had the effect of bolstering her credibility at trial.

We have already determined that the evidence was closely balanced in this case. Thus, we will also address this issue as a matter of plain error.

Defendant correctly points out that a defendant in a criminal case is entitled to effectively confront his accusers by the use of cross-examination. (Chambers v. Mississippi (1973), 410 U.S. 284, 295, 35 L. Ed. 2d 297, 308-09, 93 S; Ct. 1038, 1046.) However, this right is not absolute. Chambers, 410 U.S. at 295, 35 L. Ed. 2d at 308-09, 93 S. Ct. at 1046.

In the present case, defendant attempted to impeach Gwen’s testimony concerning her identification of him by showing that Detective Harrison failed to mention the identification process in the police report. Although the questioning on cross-examination, along with the arguments on the State’s hearsay objection, were very confusing, defendant apparently wanted to impeach Gwen’s testimony based on an omission in the police report.

In general, police reports may be used for impeachment purposes but are inadmissible as substantive evidence. (People v. Johnson (1982), 110 Ill. App. 3d 965, 969; People v. Banasik (1981), 93 Ill. App. 3d 612, 616.) However, these reports can only be used to impeach the officer who actually wrote the report. People v. Gomez (1982), 107 Ill. App. 3d 378, 382; People v. Spain (1980), 91 Ill. App. 3d 900, 905.

We agree with the trial court’s ruling in this case that defendant could not use Detective Harrison’s police report to impeach Gwen’s testimony. As the court properly observed:

“There are two different things, one thing is whether or not she gave a statement to the police officer and the other thing is whether if such a statement was given, if it was put in the police report. And you are asking about what was put in the police report. * * *
[Detective Harrison] may not have put it in the police report if [Gwen] made that statement to him. It is possible that she made a statement to him that he did not put in the report.”

Simply because Detective Harrison failed to mention how Gwen identified defendant in no way calls into question Gwen’s identification of defendant in her bedroom mirror. Instead, this omission can only be used in an attempt to impeach Detective Harrison. On retrial, defendant may not use the apparent omission in the police report to impeach Gwen’s testimony in any manner. Defendant may, however, ask Detective Harrison whether Gwen' made a statement to him concerning the identity of the attacker.

Defendant also contends that his sentence was excessive under the specific facts in this case. Because we have already determined that defendant is entitled to a new trial, we need not resolve this issue on appeal. We further find that remanding this case for a new trial will not subject defendant to the risk of double jeopardy because, in our opinion, the evidence presented was sufficient to support defendant’s convictions. See People v. Taylor (1979), 76 Ill. 2d 289, 309; People v. Walters (1989), 187 Ill. App. 3d 661, 669-70.

For these reasons, the judgment of the circuit court of Du Page County is reversed, and this cause is remanded for a new trial.

Reversed and remanded.

WOODWARD and NICKELS, JJ., concur.


author: JUSTICE McLAREN

text:
    ASHLEY ADAMS, a Minor, by her Mother and Next Friend, Cindy Adams, et al., Plaintiffs-Appellants, v. EDWARD KLINK et al., Defendants-Appellees.
    Second District
    No. 2 — 90—0821
    Opinion filed March 13, 1991.

      Robert W. Queeney and Marc L. Fogelberg, both of McBride, Baker & Coles, of Chicago, for appellants.
    Gregory P. Guth, of Holmstrom & Kennedy, P.C., of Rockford, for appellee Edward Klink.
    Edward R. Telling and Stephen E. Balogh, both of Williams & McCarthy, P.C., of Rockford, for appellee Philip Asaro.
    Kenneth W. Traum, of Konstantacos, Traum, Reuterfors & McWilliams, of Rockford, for appellee Rockford Memorial Hospital.
   JUSTICE McLAREN

delivered the opinion of the court:

The plaintiffs, Ashley Adams, Cindy Adams, and Roger Adams, appeal an order of the circuit court granting the motion of defendants Dr. Edward Klink (Dr. Klink) and Rockford Memorial Hospital (Rockford Memorial) to strike and expunge the plaintiffs’ “Amended Complaint at Law” (amended complaint) and quashing service of process on defendant Dr. Philip Asaro. The trial court found the plaintiffs voluntarily dismissed an earlier complaint against Dr. Klink and Rockford Memorial without obtaining leave to amend or reinstate. The trial court then determined it had no jurisdiction to proceed on the “amended” complaint more than 30 days after the original complaint was voluntarily dismissed. The plaintiffs maintain the amended complaint was a valid new action begun within the applicable limitations period. They maintain the trial court therefore erred in dismissing, with prejudice, their new cause of action. We agree and therefore reverse and remand.

On August 14, 1985, the plaintiffs filed their original “Complaint at Law” against Dr. Klink and Rockford Memorial in case No. 85 — L— 437 in the circuit court of Winnebago County. The complaint alleged that on September 11, 1981, the defendants were negligent in failing to admit Cindy Adams to Rockford Memorial after she had been admitted to the Rockford Memorial emergency room and informed the doctor on duty that her water had broken, that she was experiencing “fluttering,” and that Dr. Klink was her obstetrician. The complaint alleged that because of the defendants’ negligence, Ashley Adams was born with severe and permanent injuries, including cerebral palsy. Counts I and II prayed for relief against Dr. Klink and Rockford Memorial on behalf of Ashley Adams. Counts III and IV alleged that, as a result of the defendants’ negligence, Cindy and Roger Adams had spent and would continue to spend large sums of money on the care and treatment of their child’s injuries and prayed for recovery on behalf of the parents against both defendants. The plaintiffs filed a jury demand and properly served process on each defendant.

On March 2, 1989, the plaintiffs obtained the voluntary dismissal without prejudice of their complaint according to section 2 — 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1009). They did not obtain leave to amend or reinstate. On February 28, 1990, the plaintiffs filed an “Amended Complaint at Law” against Dr. Klink, Rockford Memorial, and a new defendant, Dr. Philip Asaro. The plaintiffs labeled the amended complaint “No. 85 L 437” and included in the caption, the phrase, “Jury Demanded.”

The amended complaint made no reference to the original complaint against Dr. Klink and Rockford Memorial. Count I of the amended complaint alleged that Drs. Klink and Asaro were negligent in failing to determine, upon the first of the two occasions on which Cindy Adams was admitted to Rockford Memorial’s emergency room on September 11, 1981, that she was in labor, in failing to hospitalize her or to attempt to delay the birth of Ashley Adams, in failing to inform Cindy Adams of the possibility of a cesarean section, and in otherwise breaching their duty of due care toward Cindy Adams in connection with the birth of her daughter, Ashley. Count II alleged that Rockford Memorial was liable for the negligent behavior of certain of its nurses employed in the emergency room on September 11, 1981, and.that these nurses’ various breaches of their duty of due care caused the injuries suffered by Ashley Adams. Counts III and IV alleged that Rockford Memorial was liable for the negligence of Drs. Klink and Asaro, and count V alleged that Rockford Memorial breached an independent duty of care to the plaintiffs. Counts I through V prayed for damages on behalf of Ashley Adams. Counts VI and VII prayed for judgment against all the defendants on behalf of Cindy and Roger Adams in the amount that they had expended and would continue to expend for the care and treatment of Ashley Adams’ injuries. All the defendants were served with process by March 8, 1990.

On April 9, 1990, Rockford Memorial, later joined by Dr. Klink, moved to strike and expunge the amended complaint and any summons issued after the filing of the amended complaint. The motion alleged that, because more than 30 days had passed since the plaintiffs’ original complaint had been voluntarily dismissed, there was no lawsuit pending in which the amended complaint could be filed and the circuit court, therefore, had no jurisdiction over the subject matter or the parties. On May 31, 1990, Dr. Asaro, making a special and limited appearance, moved to quash the plaintiffs’ summons and service of process on him. Dr. Asaro argued that, because more than 30 days had passed since the order voluntarily dismissing the original complaint, the court had lost jurisdiction of the case and could not reinstate case No. 85 — L—437 or authorize further filings in the case.

In response, the plaintiffs argued that the amended complaint was filed with the clerk of the circuit court within a year of the voluntary dismissal of the original complaint and was thus a valid refiling of the action pursuant to the limitations provision of section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 217). The plaintiffs argued that the filing of the amended complaint and the service of summons on each defendant gave the circuit court jurisdiction over the subject matter and the parties. The plaintiffs requested that the circuit court grant them leave to strike the word “Amended” from the label on page one of the amended complaint and direct the clerk of the circuit court to designate numerically the complaint and to collect fees according to the current procedures of the clerk’s office.

On August 27, 1990, the circuit court held a hearing on the defendants’ motions. The defendants argued that the amended complaint was a nullity because the lawsuit had been terminated when the original order of voluntary dismissal was not appealed after 30 days. The plaintiffs argued that they had filed a new cause of action within the one-year limitation of section 13 — 217 of the Code of Civil Procedure. Counsel for the plaintiffs acknowledged that they had not filed a new jury demand or paid additional filing fees but stated that this was only because employees of the circuit clerk’s office had informed employees of the plaintiffs’ attorneys that no new jury demand or fees would be needed.

The parties submitted affidavits from sundry persons. Georgann Moran, secretary to the plaintiffs’ attorney, stated that on February 26, 1990, as she was making revisions to the amended complaint, the plaintiffs’ attorney informed her that he would be out of the office on February 27 and 28 and that she was to call the circuit clerk’s office in Rockford to determine whether the filing of the amended complaint required a filing fee and, if so, in what amount. Per these instructions, she made two calls at different times on February 27, before the filing of the pleading. She informed the first deputy clerk to whom she spoke that the firm wanted to refile a complaint in a medical malpractice case where the plaintiff had voluntarily dismissed the complaint on or about March 2, 1989. She asked if this filing or refiling would require a filing fee. The deputy clerk told her that no filing fee was necessary. The second call later that day brought the same opinion from another employee of the circuit clerk’s office. In reliance on these opinions, Moran did not obtain a check from the firm’s office services department before giving the final version of the amended complaint to Lori Barnicke, a paralegal with the plaintiffs’ attorney’s firm, on the morning of February 28,1990.

Lori Barnicke stated in her affidavit that on February 28, 1990, she filed the amended complaint with the clerk of the Seventeenth Judicial Circuit and that all copies of the amended complaint were stamped by an assistant clerk. Because she considered the amended complaint a new action in compliance with the requirements of Illinois law pertaining to the filing of causes of action after a voluntary dismissal, she prepared and presented to this same clerk a written demand for a jury trial. The clerk then informed her that, because a jury demand had previously been filed, no second demand need be filed. The next day, when she returned to the circuit clerk’s office to have the summonses issued, another deputy clerk, after consulting with her supervisor, an unidentified judge, and an unidentified lawyer, informed Barnicke that the unidentified judge had told the deputy clerk that the filing of an amended complaint was the proper way to refile the previously dismissed complaint. After this conversation, the deputy sheriff accepted Barnicke’s summonses, complaints and checks and indicated that the defendants would all be served.

Donna Ryan, a deputy clerk, stated in her affidavit that on February 28, 1990, she received the amended complaint for filing, that she recalled no special circumstances surrounding the filing nor questioning how it was to be filed. Had she been asked, she would have indicated that “no filing fee was required to file an Amended Complaint and that no Jury Demand was necessary for case No. 85 L 437 as one had previously been filed therein.”

Dolores Peila, also a deputy clerk, stated in her affidavit that on March 1, 1990, she received for issuance certain summonses in relation to the plaintiffs’ suit. She did not recall any question being raised at the time about the propriety of filing an amended complaint in this cause and that, had a question arisen, she would have contacted either Theresa LaLoggia or John Fosha, those being her immediate supervisors. Dolores stated she had not contacted any judge or attorney with regard to the filing of an amended complaint in this cause and that, had she contacted anyone about the propriety of filing an amended complaint in this cause or about the issuance of summonses in this cause, she would have so noted on the docket sheet.

Theresa LaLoggia, a deputy clerk and immediate supervisor of Donna Ryan and Dolores Peila, stated in her affidavit that any questions regarding the filing of documents encountered by persons under her direction would have been referred either to her or to her superior, John Fosha. Further, from time to time she had, pursuant to established policy, contacted Assistant State’s Attorney Charles Prorok regarding procedural questions arising in the office, and she recalled making no such inquiry to Prorok regarding the filing of an amended complaint in this cause and would not have made any such inquiry to any other attorney. Finally, she stated she made no such inquiry to Chief Judge Agnew or any other judge.

John Fosha, administrative assistant for the circuit clerk’s office, stated in his affidavit, that, to the best of his knowledge and belief, he had no involvement with the filing of the amended complaint in this cause.

Charles Prorok, assistant State’s Attorney for Winnebago County, stated in his affidavit that part of his duties included answering questions posed by supervisory personnel in the circuit clerk’s office regarding the collection of fees and that he was not contacted by any employee of the circuit clerk’s office with regard to the filing of the amended complaint in this cause.

The trial court determined that, because the case was finally concluded 30 days after the March 2 order of voluntary dismissal, and the amended complaint had been filed without leave of court on February 28, the court lacked jurisdiction to proceed on the amended complaint. The court granted the motion to strike and expunge the amended complaint and the motion to quash service on Dr. Asaro.

The defendants assert, and the plaintiffs concede, that after the original complaint was dismissed without leave to amend or reinstate, the plaintiffs’ only means to recover against the defendants was to start a new action. We agree. (See Kahle v. John Deere Co. (1984), 104 Ill. 2d 302; Howard v. Francis (1990), 204 Ill. App. 3d 722, 725.) The issue here is whether the plaintiffs filed a new action or simply made a futile attempt to amend a legally null complaint. We conclude that under Vukovich v. Custer (1953), 415 Ill. 290, and Kasper v. Frank (1972), 9 Ill. App. 3d 481, the plaintiffs commenced a new action valid against all the defendants.

In Vukovich, a complaint was filed in the name of John Vukovich against two defendants, including Custer, the driver of the car that collided with the car in which Vukovich was riding. John Vukovich had died about an horn1 before the complaint was filed. Just under a year after the complaint was filed the wife of John Vukovich, as administratrix of his estate, was substituted as a party plaintiff and given leave to file an amended complaint. Custer moved to strike the amended complaint and dismiss the action, arguing that the original complaint was a nullity because it was filed after the death of John Vukovich and that the amended complaint was therefore of no force and effect. The trial court granted the motion and the appellate court affirmed. The supreme court reversed and remanded. The court held that, even assuming that the original complaint was a nullity, the amended complaint still stated a good cause of action and was in reality an original complaint timely filed. The court went on to state:

“The net of defendant’s contention is that plaintiff is not entitled to have the merits of her case tried because she erroneously inserted the adjective, ‘amended,’ in the caption and in the body of the complaint. Had she filed this same complaint, eliminating any reference to the earlier complaint, she would have stated a good cause of action ***. *** To hold that the administratrix cannot have a trial of the merits because she did not label the amended complaint as a new and independent action would exalt form at the expense of substantive rights. Such a technical and sterile application of the Civil Practice Act would contradict its command of a liberal construction and disregard its emphasis on the substantive rights of the parties.” Vukovich, 415 Ill. at 293.

The appellate court applied Vukovich in Kasper. There the plaintiffs filed a complaint and an amended complaint against Curtis and Uriel Jones after Uriel Jones had died. After the court granted summary judgment for Curtis Jones, the plaintiffs filed a “second amended complaint” against the administrator of Uriel Jones’ estate, alleging the same facts and ground for recovery as in the first two complaints. The defendant argued because the original suit against the dead man was a nullity any amendments were also void. The trial court agreed and dismissed the “second amended complaint.” The appellate court reversed and remanded. Citing Vukovich, the court held that the “second amended complaint” was an entirely new complaint timely commenced and otherwise valid. The court stressed that the “second amended complaint” was complete of itself and did not refer to or incorporate the earlier complaint.

The courts in Vukovich and Kasper emphasized that the “amended complaints” were complete of themselves and that the Civil Practice Act was to be construed liberally so that controversies could be decided according to the parties’ substantive rights. The courts explicitly stated that the titling of the “amended complaints” was of no importance. In neither case did the court even discuss whether the plaintiffs) had made a new jury demand or paid extra filing fees in connection with the “amended complaint.”

Applying Vukovich and Kasper, we determine, as a matter of law, the plaintiffs’ “amended complaint” was in reality a valid and timely filed new action as to all the defendants. The present Code of Civil Procedure, no less than the former Civil Practice Act, is to be construed liberally so that controversies may be speedily and finally determined according to the substantive rights of the parties. (Ill. Rev. Stat. 1989, ch. 110, par. 1 — 106.) The plaintiffs’ amended complaint, like those in the cited cases, is complete of itself and makes no reference to the earlier complaint. The defendants make no showing that they were prejudiced by the use of the term “amended” or the number of the old complaint in the caption. The defendants argue that the plaintiffs should be deprived of an otherwise valid cause of action because they mistitled their complaint. We reject this argument just as did the courts in Vukovich and Kasper.

In reaching this conclusion we attach no significance to the plaintiffs’ apparent failure to pay new filing fees or renew their demand for a jury trial after the filing of the amended complaint. Such omissions do not affect a court’s jurisdiction to hear a cause of action. (Ayala v. Goad (1988), 176 Ill. App. 3d 1091, 1095.) As we have noted, the courts in Vukovich and Kasper did not even discuss any payment of additional filing fees or renewed demands for trial by jury. Indeed those courts appeared unwilling even to discuss the plaintiffs’ subjective intentions, if any, to file amended complaints rather than new proceedings. When the plaintiffs here filed their complaint and served summonses on the defendants, they invoked the circuit court’s jurisdiction over the subject matter and parties in their amended complaint. (See Ill. Rev. Stat. 1989, ch. 110, par. 2 — 201.) The trial court therefore erred in finding that it lacked jurisdiction to proceed on the amended complaint.

The defendants rely on Petrella v. Leisky (1981), 92 Ill. App. 3d 880, and argue that the issue in this case is not whether the plaintiffs could have filed a new complaint but whether they actually did so. We agree that the crucial consideration is what the plaintiffs actually did, but hold, as we have explained, that what they actually did was file a valid new action. Petrella is distinguishable, as there the trial court properly dismissed a “supplemental complaint” filed against a party not originally named by the plaintiff as a defendant. The plaintiff had filed the “supplemental complaint” without leave of court or notice to other parties. The appellate court held that the plaintiff’s failure to follow the clear requirements of the Civil Practice vAct for adding an additional defendant mandated the dismissal of the “supplemental complaint” even though the plaintiff could properly have added the additional defendant within the applicable limitations period by obtaining leave from the trial court to do so. The plaintiff’s disregard of the clear requirements of the Civil Practice Act, effectively an attempt to circumvent the authority of the trial court, went far beyond the inapt titling of the complaint in the present case.

Dr. Asaro, citing Gonzalez v. Thorek Hospital & Medical Center (1989), 186 Ill. App. 3d 648, argues that the filing of the amended complaint is not a new action as to him within the meaning of section 13 — 217, which provides that, within a year after a plaintiff has obtained the voluntary dismissal of an action, the plaintiff “may commence a new action within one year or within the remaining period of limitation, whichever is greater” (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 217). Dr. Asaro does not deny that he was sued within the applicable limitations period. It is not material that he was not a party to the original complaint. Gonzalez would require that Dr. Asaro be named in the original complaint only if the plaintiffs were seeking to use the provisions of section 13 — 217 to extend the time for bringing an action against Dr. Asaro beyond that otherwise allowed by the applicable limitations period. See Hugley v. Alcaraz (1986), 144 Ill. App. 3d 726.

We also reject Dr. Asaro’s argument that he was unduly prejudiced by the filing of the amended complaint Mtz years after the original action was instituted. Any prejudice was the result of a delay in effecting service on him and not of formal defects in the amended complaint. See Vukovich, 415 Ill. at 293-94.

Dr. Klink and Rockford Memorial have renewed their motion to dismiss this appeal, claiming the order is not final and appealable. We affirm our original denial. We have concluded that the trial court’s action amounted to the dismissal with prejudice of a valid complaint. The court found that it lacked jurisdiction to hear the amended complaint and also denied the plaintiffs’ request for leave to amend the amended complaint. The plaintiffs did not renew their request for leave to amend after the court entered its order. We hold that we have jurisdiction to hear the appeal pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301), as the plaintiffs are appealing a final judgment of the circuit court. Branch v. European Autohaus, Ltd. (1981), 97 Ill. App. 3d 949, 951-52; Bates v. Ulrich (1976), 38 Ill. App. 3d 203, 204-05.

The judgment of the circuit court of Winnebago County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

BOWMAN and GEIGER, JJ., concur.