author: JUSTICE McLAREN PRESIDING JUSTICE REINHARD,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ARNOLD SOLIS, Defendant-Appellee.
    Second District
    No. 2—89—1356
    Opinion filed January 8, 1991.
    REINHARD, P.J., specially concurring.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

      Herbert Hill, of Law Offices of Herbert W. Hill, of Aurora, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

The State appeals from an order of the trial court entered December 4, 1989, wherein defendant, Arnold Solis, was discharged based on a violation of the speedy-trial provision of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5(a)). We reverse and remand.

The sole issue before this court is whether the trial court abused its discretion in discharging the defendant. On the day of trial, the 117th day of the speedy-trial term, defendant’s counsel sought a continuance to research a conflict of interest problem arising from defense counsel’s injecting himself as a potential witness into defendant’s case by interviewing a recanting identification witness. Additionally, on the day following the continuance, defense counsel obtained leave to withdraw, and defendant was granted a continuance to obtain new counsel. This continuance delayed the proceedings beyond the 120-day speedy-trial term. We conclude there was delay attributable to the defendant and, therefore, no speedy-trial violation.

Defendant was indicted in March 1989 on one count each of attempted murder, armed violence, and aggravated battery when he allegedly shot Mickey Stuart in the arm. Defendant was arrested on April 12. On April 28, Richard Petesch of the law. firm of Cooper, Storm, and Petesch, entered his appearance and demanded a speedy trial on behalf of defendant.

At a pretrial conference on August 4, Assistant State’s Attorney Tim O’Neil advised the court that, although Stuart had previously identified the defendant on July 27, during an interview by defendant’s attorneys Petesch and Cooper, Stuart repudiated his prior identification of defendant and signed a statement to that effect. The prosecutor further explained that he had someone from the Aurora police department talk to Stuart on August 3, and Stuart informed the officer that he had been intimidated into signing the statement repudiating the identification. Because of threats, Stuart was in protective custody, O’Neil opined that defense counsel might want more time to prepare. Attorney Petesch, however, answered ready for trial. Without comment, the trial court set the matter for trial as scheduled on August 7.

On August 7, the prosecutor raised the possibility of an ethical violation if defense counsel became a witness in the case. Defense counsel acknowledged that he could be called as a material witness on either side of the case and requested a one-day continuance to further research the issue. The court took note of the conflict and observed that defense counsel might have to withdraw from the case. The court granted defense counsel’s request for continuance and noted the “term” problem. Defense counsel agreed that the delay would be attributable to defendant.

On August 8, the 118th day since defendant’s arrest, defense counsel, Peter Storm, informed the court that his research indicated that his firm must withdraw from representing defendant. Attorney Storm was accompanied by attorney Giampoli, who would be making arrangements to take defendant’s case. The State answered ready for trial. The trial court granted defense counsel’s motion to withdraw and noted that any continuance would be attributable to defendant. The court granted defendant’s motion to continue the case until August 11 after Giampoli indicated that he needed time to confer with defendant and prepare the case.

On August 11, the 121st day since defendant’s arrest, the prosecutor advised the court that Giampoli informed him that defendant would be employing attorney Glen Sowa. When attorney Sowa did not appear, the case was continued to August 25. Defendant was present and agreed to this continuance. The orders entered on August 7, 8, and 11 indicate that defendant was present in open court and that each motion was attributable to defendant.

On August 25, attorney Sowa entered his appearance and asked for a continuance to prepare for trial. Defendant’s motion was granted and the case continued until September 15, 1989. On defendant’s motion, the case was continued to October 13 and, on that date, set for trial on December 4. Attorney Sowa represented defendant until November 3. Sowa was then permitted to withdraw, and attorney Herbert Hill was allowed to file his appearance.

On November 30, the trial court held a hearing on defendant’s section 103 — 5(a) motion for discharge. The hearing was continued until December 4 so the court would have the opportunity to consider the case law submitted and review the transcripts. On December 4 the State conceded that, for speedy-trial purposes, there were 118 days attributable to the State, as of the originally scheduled trial date of August 7.

In its ruling discharging the defendant, the trial court noted that when the case was called for trial, the State answered ready and did nothing to delay the trial. The court also noted that defendant did not acquiesce on the record in the withdrawal of his attorneys. The court opined that the delay was attributable to defendant’s attorneys, who were attempting to obtain a statement to impeach the State’s witness. The court stated that, although the situation presented a unique set of facts, it did not wish to see the case tried twice. The court also observed that, if defendant’s counsel (Cooper) had been allowed to remain in the case in the face of a conflict of interest and defendant were found guilty, reversible error would have resulted. However, the court believed that where defense counsel was given time to research the issue, was permitted to withdraw without defendant’s acquiescence, and where defendant was given additional time to obtain another attorney, the delay was not attributable to defendant. Therefore, the court discharged defendant.

The State contends that the trial court abused its discretion in finding that the delay in the trial from August 7, 1989, was not attributable to defendant. We agree with the State for the reasons that follow.

In reaching its decision, the trial court apparently relied on People v. Roberts (1985), 133 Ill. App. 3d 731, and People v. Collum (1981), 98 Ill. App. 3d 385. In those cases, the Appellate Court for the Fifth District followed a doctrine which appears to state that when a court-appointed attorney withdraws on his own initiative due to a perceived conflict of interest, and not at the request of the defendant, any resulting delay cannot be charged to the defendant unless the withdrawal was made under circumstances from which it may be inferred that the defendant acquiesced in the delay, or in situations where the withdrawal was followed by a request that defendant’s attorney be given additional time. (See, e.g., People v. McGuire (1984), 123 Ill. App. 3d 908, 911 (silence by defendant deemed acquiescence in withdrawal of appointed counsel for perceived conflict of interest and resulting delay where substituted counsel was granted continuance to prepare for trial); People v. Eason (1976), 44 Ill. App. 3d 308, 310 — 11 (delay occasioned by withdrawal of counsel and subsequent appointment of new counsel to which defendant acquiesced was chargeable to defendant).) We do not share the trial court’s broad interpretation of Roberts and Collum, nor do we believe they are factually similar to the case at bar.

On appeal, defendant again cites Roberts and Collum in addition to People v. Bowman (1989), 180 Ill. App. 3d 755, in urging that there was no continuance of the trial attributable to defendant. We note, however, that the decision in Bowman has been recently reversed. People v. Bowman (1990), 138 Ill. 2d 131.

In Bowman, a public defender was appointed to represent defendant and made a demand for a speedy trial. Due to a conflict of interest, the public defender was allowed to withdraw. A conflict attorney under contract with the county was appointed. Trial was set for November 23, 1987. The conflict attorney resigned his position on October 1, effective November 1. On November 1, attorney Jarrin became the conflict attorney. Due to a large caseload, Jarrin could not try the case on its scheduled date. On November 18, Jarrin had the case generally continued and stipulated that the delay would be attributable to defendant. On January 15, 1988, by letter to the chief judge, defendant attempted to claim his right to a speedy trial and to repudiate the actions of his attorney. On February 18, another attorney appeared on defendant’s behalf and obtained a discharge of the defendant based on a violation of the speedy-trial provisions.

Our supreme court applied the general rule that a client is bound by the acts or omissions of his lawyer-agent. (Bowman, 138 Ill. 2d at 141.) The court also found that defendant’s acquiescence to Jarrin’s serving as his attorney contributed to the delay of the trial. (Bowman, 138 Ill. 2d at 141.) The court noted that the affirmative acts of counsel cannot be separated from the defendant’s own acts; thus, a party who does not promptly repudiate an attorney’s act upon receiving knowledge of such an act has effectively ratified the act. (Bowman, 138 Ill. 2d at 141.) The court further noted that when an attorney requests or agrees to a continuance the record need not always affirmatively show he has consulted with and received the advice of the accused; such a rule would intolerably burden the trial courts. (Bowman, 138 Ill. 2d at 142.) The supreme court held that where the defendant had not overcome the presumption that attorney Jarrin was acting on defendant’s authorization, defendant could not claim that his own action, or lack thereof, did not contribute to the delay caused by Jarrin’s filing of a motion for a continuance on his behalf. (Bowman, 38 Ill. 2d at 143.) The court noted with approval Justice Heiple’s dissent in the appellate decision (Bowman, 180 Ill. App. 3d at 760 (Heiple, J. dissenting)) and explained that to hold otherwise would force every trial court to inquire into every chargeable delay to determine whether an accused personally agreed to a continuance or waived his right to appear at a hearing. (Bowman, 138 Ill. 2d at 144.) “To affirm the appellate court’s judgment might allow every accused whose attorney’s actions cause the delay of a trial to escape trial and conviction through a questionable application of the speedy-trial statute.” (Bowman, 138 Ill. 2d at 144.) Finally, the court explained that a defendant may properly be required to choose between the two constitutional rights of a speedy trial and the effective assistance of counsel. {Bowman, 138 Ill. 2d at 147.) The court disapproved of placing the defendant in a “no-lose” situation so that, by merely fortuitous circumstances, a defendant would be able to exploit his constitutional right to a competent attorney but nevertheless escape all charges through a technical application of the speedy-trial statute. (Bowman, 138 Ill. 2d at 148.) Under the circumstances, the court concluded that granting the defendant’s motion to dismiss was an abuse of discretion. Bowman, 138 Ill. 2d at 149.

Applying the above rules and principles, we believe the trial court abused its discretion by discharging the defendant. There was no conflict of interest in representing defendant until his attorneys became witnesses by interviewing the recanting State’s witness on July 27, 1989.

Defense counsel did not address the potential conflict in his representation of defendant until it was pointed out by the prosecutor. Only on the scheduled day of trial, August 7, 1989, did defense counsel acknowledge to the court that there was a potential conflict in his representation of defendant. Counsel then asked for a continuance to research the issue. On August 8, defense counsel withdrew and consented to a three-day continuance attributable to defendant so that new counsel could confer with defendant and prepare for trial. August 11 was the 121st day since defendant’s arrest and was beyond the speedy-trial term. On August 4 and August 11, defendant was present in court and raised no objections to his representation or the granting of the continuance from August 7 to August 11. On August 11, defendant appears to have personally assented to a further continuance to August 25. Defendant’s new attorney, Sowa, appeared and, in the presence of defendant, asked for a continuance to prepare the case for trial. Defendant voiced no objection to the continuance. Further continuances were granted to defendant until the November motion for discharge.

We determine there are several factors militating against the discharge of the defendant and hold that the delay in the trial was attributable to defendant. First, counsel’s voluntary investigation and interview of the witness created a conflict which did not exist previously. This action along with counsel’s later actions inured to defendant’s benefit. The potential conflict was brought to the attention of the trial court only just before trial. Second, defense counsel asked for continuances on August 7 and 8, agreeing that the continuances would be attributable to defendant. Defendant personally assented to another continuance on August 11. Thus, defendant must be deemed to have acquiesced to his representation by counsel, their withdrawal, and the resulting continuances. He is bound by the acts or omissions of his attorneys. As defendant stood mute while his counsel took actions for his benefit which resulted in delaying the trial, he should not now be allowed to complain of a speedy-trial violation. To hold otherwise would invite abuses or questionable applications of the speedy-trial provisions so that, whether inadvertent or contrived, conflicts could be created at the end of the term and the accused could escape trial on a technical application of the provisions. To the extent that the holdings of Roberts and Collum can be so broadly interpreted that a last-minute conflict of interest requiring the withdrawal of counsel can be brought to the trial court’s attention just before trial so that discharge must be automatically granted, we reject such an interpretation of those cases in light of Bowman (138 Ill. 2d at at 144). According to Bowman, in an appropriate case delay due to withdrawal based upon a conflict may not be attributable to defendant, but the defendant may not be allowed to demand a speedy trial and effective counsel. Under Bowman, the defendant must choose between a speedy trial and effective counsel. In any event, we find Roberts and Collum factually inapposite to the case before us as did our supreme court in Bowman 138 Ill. 2d at at 145.

For the foregoing reasons, the judgment of the circuit court of Kane County is reversed, and the cause is remanded for trial.

Reversed and remanded.

GEIGER, J., concurs.

PRESIDING JUSTICE REINHARD,

specially concurring:

While I agree with the majority that the trial court erroneously granted defendant’s motion for discharge based on an alleged speedy-trial violation, I write specially to set forth more precisely my own reasons for reaching that conclusion.

I believe, like the majority, that the proper analysis begins by reference to the Illinois Supreme Court’s decision in People v. Bowman (1990), 138 Ill. 2d 131. In Bowman, defendant’s court-appointed attorney withdrew from the case and was replaced by another attorney approximately three weeks before the date set for trial. The defendant did not object to the substitution of attorneys. Shortly before trial, the defendant’s new attorney sought and was granted a continuance. (Bowman, 138 Ill. 2d at 135-36.) The supreme court held that, where the record did not rebut the presumption that the continuance was sought upon defendant’s authorization, the delay caused by the need for the new attorney to prepare for trial was chargeable to the defendant. (Bowman, 138 Ill. 2d at 140-43.) I note that the delay at issue in Bowman was the delay necessitated by the need for the defendant’s new attorney to prepare for trial (the preparation delay). The delay between the withdrawal of the first attorney and the appointment of his successor attorney (the appointment delay) was not at issue.

Here, as in Bowman, defendant’s attorney sought a continuance to allow him to prepare for trial, and defendant never indicated his disapproval of this request. Thus, defendant has not overcome the presumption that the delay was sought upon his authorization, and the resulting preparation delay is chargeable to defendant. The only remaining portion of the delay complained of is the appointment delay, but this delay amounted to only one day in the instant case. Even assuming, arguendo, that this delay is not chargeable to defendant, the total time chargeable to the State would be 119 days. This is within the statutorily prescribed time limitation.

Furthermore, I do not believe that even the one-day appointment delay is chargeable to the State. Citing the holdings in People v. Roberts (1985), 133 Ill. App. 3d 731, and People v. Collum (1981), 98 Ill. App. 3d 385, defendant argues that none of the delay caused by the withdrawal of a defendant’s attorney because of a conflict is chargeable to a defendant. Those cases, however, arose in the context of a potential conflict of interest of the defendant’s attorney. Here, on the other hand, there is no such conflict of interest. The attorney’s withdrawal was made pursuant to an ethical obligation requiring him to withdraw once he realized that he might testify in the proceedings. (See Code of Professional Responsibility (107 Ill. 2d R. 5 — 102).) Thus, although the attorney could have continued to represent defendant, he withdrew so that he could testify for defendant in the proceedings. This decision was to defendant’s strategic advantage, and the delay caused thereby should be chargeable to defendant.

Finally, beyond merely distinguishing Roberts and Collum from the instant case, I note that the entire rationale of those cases appears flawed. Roberts and Collum hold that, where the defendant’s attorney is forced to withdraw from representing a defendant because of a conflict, the resulting delay is not chargeable to the defendant. (But see People v. McGuire (1984), 123 Ill. App. 3d 908, 911-12.) Just as the court in Bowman rejected an approach which would reward a defendant who is “ ‘fortunate’ enough to have an appointed attorney who was overburdened” (Bowman, 138 Ill. 2d at 148), I question the approach taken in Roberts and Collum because it would reward those defendants who are “fortunate” enough to have an attorney who discovers that a conflict requires him to withdraw from the case. I agree with the statement in Bowman that a defendant cannot “have it both ways” and should not be “able to exploit his constitutional right to a competent attorney and escape all charges through the technical application of the speedy-trial statute.” Bowman, 138 Ill. 2d at 148.

I am aware that the supreme court in Bowman commented favorably on the rationale of Roberts, but this issue was not before the court and such comments are, therefore, dicta. (Mid-American Lines, Inc. v. Industrial Comm’n (1980), 82 Ill. 2d 47, 59-60.) The court’s definitive pronouncement on the Roberts rationale must await a day when that issue is squarely before the court.


source: Caselaw Access Project

author: JUSTICE GORMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DONALD WARD, Defendant-Appellee.
    Third District
    No. 3—90—0291
    Opinion filed January 4, 1991.

      Greg McClintock, State’s Attorney, of Monmouth (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Warren T. McNeill, of Monmouth, for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

The defendant, Donald Ward, was charged by information with two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(b)(1)). Prior to trial, he filed five motions in limine. His fifth motion in limine alleged that the victims’ hearsay statements were inadmissible and did not fit within the statutory hearsay exception pertaining to victims of sexual assault under age 13 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10). Following a hearing, the trial court ruled that the statements contained sufficient safeguards of reliability, but were nevertheless inadmissible because the State had failed to present corroborative evidence of the acts which were the subjects of the statements, as is required by section 115 — 10(b)(2)(B) of the Code of Criminal Procedure of 1963 (the Code) (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10(b)(2)(B)). The State appeals that decision.

The record reveals that the defendant’s fourth motion in limine alleged that the victims, four-year-old Crystal Ward and five-year-old Tiffany Ward, were incompetent to testify (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 14(c)). After a hearing on that motion, the court ruled that Crystal and Tiffany were incompetent to testify. Thereafter, the defendant filed his fifth motion in limine, alleging that the State should not be permitted to introduce into evidence any hearsay statements made by Tiffany and Crystal. The defendant contended that the statements were without sufficient safeguards of reliability and there was no corroborative evidence of any acts which were the subjects of those statements.

At the hearing on the defendant’s fifth motion in limine, Joyce Sharp, the children’s foster mother, testified about an incident that occurred while she was baby-sitting her four-year-old nephew, Justin. After allowing Justin and Crystal to go into a separate room to play Nintendo, Sharp decided to check on them. Upon doing so, she observed the two of them on the bed together. Justin had his hands in Crystal’s pants. The children told Sharp that they were playing a game and that it was Crystal’s idea. Sharp then told them that what they were doing was wrong and asked them if they had played the game before. Crystal responded that she had played it before with her dad.

Sharp further testified that a similar incident occurred one week later, despite her attempts to keep Justin and Crystal apart. She explained that after giving Crystal permission to go into the bedroom to play, she momentarily forgot about Justin. Later, she discovered Justin and Crystal on the bed engaged in a sexual act. Once again, Sharp told the children that what they were doing was wrong. Crystal responded that since she loved Justin it was not wrong. She also told Sharp that she had done it several times with her dad. Later, Sharp informed the Department of Children and Family Services of the incident.

Aileen Weiss, a DCFS investigator, testified that she interviewed Crystal and Tiffany at the Monmouth police department. DCFS investigator Clifford Adams and police officer Terry Owens were present. The interview consisted of an explanation about anatomically correct dolls, an explanation about good and bad touches, and some questions. At one point during the interview, Crystal told Weiss that her father had put his penis in her navel. Crystal also said that her father had put pink cream on her vaginal area and had made oral contact with that area. Tiffany took the anatomically correct dolls and laid the adult male on top of the juvenile female and indicated that that was what her father had done to her.

On cross-examination, Weiss stated that she only interviewed Crystal once, but that she had a second interview with Tiffany. During the second interview, Tiffany stated that her father had hurt her groin area and had rubbed his penis on her vaginal area. She also stated that her father kissed her vaginal area.

Monmouth police officer Terry Owens also testified concerning his involvement in the interview. He stated that the two children had told Weiss that their father had touched their vaginal areas.

The State made an offer of proof regarding the corroborative evidence it believed it would be able to produce at trial. It stated that Jeremy Weir, the defendant’s stepson, would testify that he was an eyewitness to the acts alleged to have been committed by the defendant on the two children.

The defendant objected to the offer of proof, arguing that to comply with the corroboration requirement of the statute the State was required to call Weir to testify at the present hearing rather than merely make an offer of proof as to what he might say. The defendant also argued that the children’s statements lacked sufficient safeguards of reliability in view of a doctor’s examination of the children which revealed no evidence of sexual abuse.

In response, the State agreed that the reliability of the out-of-court statements had to be determined at a pretrial hearing outside the presence of a jury. The State denied, however, that it had to present corroborative evidence at the pretrial hearing. Rather, it argued that it only had to show that such evidence existed. The State then filed an affidavit attesting that it would be able to produce corroborative evidence at trial.

After hearing the evidence and the arguments of counsel, the trial court found that the hearsay statements contained sufficient safeguards of reliability. The court noted, however, that Crystal and Tiffany were unavailable as witnesses for purposes of the statute because of its earlier ruling that they were incompetent to testify. It further noted that because of the witnesses’ unavailability, the State was required to present corroborative evidence of the acts. The court then allowed the defendant’s motion, finding that the State refused to produce the necessary corroborative evidence.

On appeal, the State first contends that the trial court erroneously ruled that the State had to present corroborative evidence at the pretrial proceeding. It claims that if the legislature had intended for such evidence to be presented during the pretrial hearing, it would not have divided section 115 — 10(b) into two subsections. In the alternative, the State argues that it presented the necessary corroborative evidence.

In response, the defendant initially claims that the trial court’s order suppressing the victims’ hearsay statements was merely an evidentiary ruling and therefore not appealable.

We disagree. Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)) provides that the State may appeal from an order that has the substantive effect of suppressing evidence. In construing that rule, the Illinois Supreme Court held in People v. Young (1980), 82 Ill. 2d 234, 412 N.E.2d 501, that the State may bring an interlocutory appeal from a suppression order whenever the prosecutor certifies to the trial court that the suppression substantially impairs the State’s ability to prosecute the case. The Young court noted that the need to ensure the accurate interpretation of statutory provisions outweighs the difficulties posed by allowing such appeals. Here, the State filed the requisite certificate of impairment. Moreover, the issue presented by the State is apparently one of first impression, involving a question of statutory interpretation. Accordingly, we will consider the appeal.

Returning to the State’s first issue, we note that section 115 — 10 contains a hearsay exception for the admission of out-of-court state-' ments made by sexual assault victims under 13 years of age. The statute qualifies that exception by providing that the hearsay testimony will only be admitted if:

“(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.” Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10(b).

In the present case, we note that the trial court found that the victims were incompetent to testify. We find that where the declarants are unavailable, the above-quoted language requires the State to present actual corroborative evidence at the pretrial hearing, outside the presence of the jury. (See People v. Rocha (1989), 191 Ill. App. 3d 529, 547 N.E.2d 1335.) Most often the corroboration requirement can be satisfied with circumstantial evidence, such as a medical report indicating signs of sexual abuse. However, in cases where other forms of evidence are not available, such as the instant one, the State may have to present actual eyewitness testimony. In such a case, the statute contemplates that the State actually call the witness to testify at the pretrial hearing and not simply rely on the prosecutor’s representations about what the witness would testify to if called.

We also reject the State’s contention that the testimony of Crystal’s foster mother satisfied the corroboration requirement. Whether the corroboration requirement was satisfied was a question for the trial court in its role as the weigher of the evidence and the judge of the credibility of the witnesses. See People v. Brown (1986), 150 Ill. App. 3d 535, 501 N.E.2d 1347.

Moreover, in People v. Ridgeway (1990), 194 Ill. App. 3d 881, 551 N.E.2d 790, relied upon by the State, the court noted that it was unaware of any authority specifically holding that a young child’s sexual actions could be used as evidence of the child’s having been sexually molested. The court further noted, however, that expert testimony about a victim’s suffering from rape trauma syndrome had been found admissible. The Ridgeway court then concluded that the testimony of the young victim’s sexual actions, in conjunction with expert testimony, could provide corroborative evidence sufficient to sustain a conviction.

Here, the State did not present any expert testimony regarding Crystal’s sexual misbehavior. Under the circumstances, we find that the trial court could have properly found that the State failed to present sufficient corroborative evidence of the acts which were the subjects of the statements.

As a final matter, we note that we purposely make no ruling on the State’s assertion that the trial court should be required to reconsider its decision on the defendant’s fifth motion in limine at the time of trial. The availability of a witness is an ongoing question for the trial court at the time the evidence is presented to it. (See People v. Ford (1985), 139 Ill. App. 3d 894, 488 N.E.2d 573.) In the event the court determines that the children have become competent to testify and are therefore available, their hearsay statements may be introduced into evidence at trial.

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

Affirmed.

STOUDER, P.J., and McCUSKEY, J., concur.


author: JUSTICE WOODWARD PRESIDING JUSTICE BARRY,

text:
    LARRY BURD, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Jerry DeBolt Mason Contractors, Appellee).
    Third District (Industrial Commission Division)
    No. 3—89—0529WC
    Opinion filed January 17, 1991.

      BARRY, P.J., concurring in part and dissenting in part.
    Floyd C. Dailey, of Harvey & Stuckel, Chartered, of Peoria, for appellant.
    Pamela K. Harman, of Cohn, Lambert, Ryan, Schneider & Harman, Ltd., of Chicago, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Claimant, Larry Burd, appeals from an order of the circuit court of Peoria County confirming the decision of the Illinois Industrial Commission (Commission) denying claimant fees for services rendered by his fiancee and denying him attorney fees for delay and unfairness in the payment of benefits to claimant.

On July 11, 1986, claimant was injured in a work-related accident which rendered him a paraplegic. At the time of his accident, claimant lived with his fiancee, Emily Purtscher (Emily), in a two-bedroom house claimant had purchased a year or so before and to which he was planning to make improvements. The value of the house in 1987 was $6,000. At the arbitrator’s hearing, which was held pursuant to section 19(b — 1) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b — 1)), the following pertinent evidence was presented.

Dr. Thomas E. Szymke, who practices exclusively in the field of physical medicine and rehabilitation, testified that he became claimant’s primary care physician following claimant’s surgery until claimant’s discharge from the hospital on October 8, 1986. Dr. Szymke was an employee of the Institute of Physical Medicine. He directed an occupational therapist to evaluate claimant’s house. As a result of the evaluation, Dr. Szymke prescribed nine modifications which would be necessary in order for claimant to live independently in his house. Later, two additional modifications were added to the list. Prior to claimant’s discharge from the hospital, the only modification made was the installation of a hand-held shower hose. An October 10, 1986, progress report from Barbara Senn, a nurse at the institute in charge of communications with State Farm, the insurance carrier, indicated that State Farm authorized a rental wheelchair, bathroom equipment, and a portable ramp.

According to Dr. Szymke, with the modifications to the house he prescribed, claimant could live independently with no need for nursing care or help in entering or exiting the house.

Dr. Szymke was then questioned by claimant’s attorney as follows:

“Q. In viewing the home and modifications, did you reach an opinion as to whether that house is modifiable on a permanent basis or a temporary basis?

A. I think some common sense would have to enter into this whole discussion. I mean, after — *** it would certainly seem more optimal, most optimal, to have a domicile that could be modified that would add to the value of the home so that if it was sold it would be in such an environment and neighborhood that the money, the equity would then be applied to another domicile so one would want to pick a nice home in a good neighborhood, low end house that would have the modifications and bring it up to the other high quality homes in the neighborhood so it’s not thousands of dollars above but it would be at that level. And it would take a lot of looking, but they’re out there. It’s not an impossible thing.”

Dr. Szymke also acknowledged that he had not visited claimant’s house and that he was aware of a report dated September 22, 1986, in which one of his therapists expressed concern about making repairs and modifications to the home in relation to its value.

Dr. Szymke was also of the opinion that claimant could not exist in his house without assistance provided by either a home care service or a “significant other.” He defined “significant other” as either a “girlfriend” or a “wife,” or a “fiancee, it’s whoever that person is in your life who’s significant.” Dr. Szymke explained that the duties of the “significant other” in claimant’s case would include assisting the claimant out of the house in case of an emergency, assisting with baths and showers, or anything else that was necessary due to the fact that the modifications he had prescribed had not been made to the residence. He also related that while claimant had been receiving assistance from Quality Care, those services were being terminated as of the date of the arbitrator’s hearing. In light of that, Dr. Szymke recounted as follows:

“[Claimant] needs to be in an accessible environment, and without the accessible environment either a significant other or friend or relative or somebody is going to have to be there or he is in danger.”

Emily Purtscher, claimant’s fiancee, testified as follows. She has known claimant for four years. She and her four-year-old daughter, Chris, moved in with claimant in October 1985. In December 1985, claimant and she became engaged to be married. She is presently employed by her father at Purtscher Cement. Since the claimant returned home from the hospital in October 1986, she has spent a total of 3,012 hours with him. Those figures exclude the time she is employed, when the Quality Care person is there, trips to Chicago that claimant made, and his physical therapy.

According to Emily, she has to assist claimant to exit and enter the house because he cannot manage the portable ramps by himself. She also assists him with bathing. She does the laundry, the cooking, and takes out the garbage. She also assists claimant in putting his socks and shoes on when his legs become swollen, about three or four times per week. Claimant washes the dishes and puts the laundry away, although he cannot put Chris’ clothes away because the hallway is too narrow. Emily also puts the clean dishes away because claimant cannot reach the cabinets. Although he cannot run the sweeper, he has the house cleaned by the time she returns home. Before they had Quality Care Services, she would call every 10 to 15 minutes to make sure claimant was all right, or she would return home during the day for a short visit.

Michael Bynum, a workers’ compensation supervisor for State Farm Insurance Company, testified that it was the opinion of the insurance carrier that the Act (section 8(a)) did not provide for home modifications.

Following the hearing, the arbitrator made the following findings pertinent to our review of this case in her decision of March 11, 1987. The arbitrator found that home care service was reasonable and necessary and ordered the employer to pay the bill for Quality Care. However, she further found that Emily was not entitled to payment for the hours spent caring for the claimant, since she had occupied the same residence as the claimant prior to the injury and had continued to work full time after his injury. The arbitrator also found that penalties for nonpayment of medical bills or necessary maintenance were not appropriate “at this time.”

On review of the arbitrator’s decision, the Commission found in its decision of August 1, 1987, that the evidence that claimant required either home modifications or 24-hour-per-day care was unrebutted and that Emily was not obligated to provide the home care. The Commission, inter alia, awarded $21,924 for the services of Emily. The Commission further found that State Farm had been guilty of delay and unfairness in the payment of benefits due claimant and awarded claimant attorney fees in the amount of $366.13 (20% of $1,830.63 in unpaid bills of Quality Care).

On review by the circuit court of Peoria County, the court in its order of February 11, 1988, found the award for the services of Emily and the award of attorney fees to be against the manifest weight of the evidence and remanded the case to the Commission with instructions to affirm the arbitrator’s decision with respect to those two issues.

On remand from the circuit court, the Commission on September 2, 1988, affirmed the March 11, 1987, order of the arbitrator in toto. The circuit court affirmed the decision of the Commission, and this appeal followed.

Claimant contends, first, that the September 2, 1987, decision of the Commission denying claimant $21,924 for the services of Emily was against the manifest weight of the evidence. Since that decision resulted from the reversal by the circuit court of the Commission’s August 1, 1987, decision which did compensate claimant for Emily’s services, the real issue to be addressed here is whether the August 1, 1987, decision of the Commission was against the manifest weight of the evidence.

Section 8(a) of the Act provides in pertinent part as follows:

“The employer shall provide and pay for all necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter incurred, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury. The employer shall also pay for treatment, instruction and training necessary for physical, mental and vocational rehabilitation of the employee, including all maintenance costs and expenses incidental thereto. If as a result of the injury the employee is unable to be self-sufficient the employer shall further pay for such maintenance or institutional care as shall be required.” Ill. Rev. Stat. 1987, ch. 48, par. 138.8(a).

We begin our discussion by noting the lack of appellate cases in Illinois dealing with this issue. However, other jurisdictions have awarded compensation for home care services rendered by a nonrelative. See, Currier v. Roman L. Hruska U.S. Meat Animal Research Center (1988), 228 Neb. 38, 421 N.W.2d 25.

The cases do, however, distinguish between nursing services and housekeeping services. Professor Larson states:

“While ‘attendance’ in the' nursing sense is covered, as the cases just discussed indicated, a line has been drawn between nursing attendance and services that are in essence housekeeping. Rhode Island provides for ‘such reasonable ... attendance ... as is necessary in order to cure, rehabilitate or relieve the employee from the effects of his injury.’ Claimant, whose loss of use of both hands made it impossible to do many ordinary household chores, was held by the Rhode Island court not entitled to be provided with the assistance of a worker in the home whose duties would admittedly be those of ‘a combination housekeeper and personal maid.’ The court said that the term ‘relieve’ must, in view of the heading and context of the section, be construed to refer only to relief that is medical in character. The evidence showed that the services contemplated were not such as would be required of either a registered or practical nurse.” 2 A. Larson, Workmen’s Compensation §61.13(d)(4), at 10 — 892 (1989).

Emily testified that she assists the claimant with his bathing routine by placing the bench he sits on in the bath tub and positioning his wheelchair so he can get into the bath tub. She gets the board ready for him to transfer into the tub and helps him with the transfer. She starts the water for him and adjusts the shower curtain. She helps him wash his legs because he cannot reach that far without falling over. She performs these tasks once or twice a week. Emily does the laundry, puts the dishes and Chris’ laundry away, and does the cooking. She also puts down the portable ramps so that claimant has access to enter and leave the residence. Although claimant is able to dress himself, she will help him with his socks and shoes when his feet and ankles are swollen. While Emily continues to hold the same job and works the same hours that she did prior to claimant’s injury, she testified that when claimant was alone, she called every 10 to 15 minutes to check on him and made visits home during the day.

Thus, in order to determine whether claimant is entitled to compensation for Emily’s services, we must determine the nature of the services she rendered. We find the cases of Currier and DeLong v. 3015 West Cory. (Fla. App. 1986), 491 So. 2d 1306, to be instructive as they both involve nonfamily members rendering a combination of nursing and housekeeping services as in the case before us.

In Currier, Currier was totally disabled due to a fall. Upon his return home from the hospital, he employed a dietary assistant he had met during his hospital stay as a “domestic household service worker and personal nurse” at a salary of $800 per month, plus room and board. (Currier, 228 Neb. at 40, 421 N.W. 2d at 27.) According to the testimony at trial, the dietary assistant made Currier’s coffee in the morning, bathed or showered him, put on his shoes and socks, helped him dress, made his breakfast, did his housework and yard work, took him to the doctor, assisted him when he experienced muscle spasms, and helped him off the bathroom stool. In addition to these duties, she continued to work 27 to 32 hours per week as a dietary assistant at the hospital.

In upholding the award for the services of the dietary assistant, the court stated:

“We note that this court is in accord with other jurisdictions which deny compensation for ordinary household duties which are performed by a spouse. The basis for such holdings is that a spouse performs such duties both for herself and for her husband as a part of the marital relationship. Such considerations are not present in this case.
***
Ordinary, noncompensable housekeeping tasks include cleaning, preparation of meals, and washing and mending clothes. Compensable tasks include serving meals in bed, bathing and dressing, administering medication and assisting with sanitary functions. [Citations.]
The testimony presented at the 1986 rehearing established that Currier is unable to live in his own home without assistanee. Currier needs help in dressing, bathing, relief of pain during a muscle spasm, administering of medication, and in the event of a fall. The testimony fully supports the finding of the compensation court that the services provided by the dietary assistant are medically necessary and thus compensable, because those specific services are beyond the scope of ordinary household duties.” Currier, 228 Neb. at 441-45, 421 N.W.2d at 29-30.

Similarly, in DeLong, the court distinguished between a spouse performing household services and a nonfamily member performing those same services. In that case DeLong, prior to his injury, had performed all of the housekeeping chores due to his wife’s epileptic condition which had rendered her incapable of doing any type of housework. After he was injured, DeLong’s orthopedic surgeon recommended complete bed rest and that he perform no household chores. DeLong hired his son’s girlfriend, Ms. Wagner, to do the household chores which included cooking, cleaning, washing clothes, shopping, lawn work, driving DeLong and his wife to their doctor appointments, and assisting DeLong with his motion exercises. Ms. Wagner was to be compensated at the rate of $100 per week plus room and board. DeLong’s claim for compensation for attendant care was denied, and he appealed. Reversing the denial, the court stated:

“The general rule is that shopping, cooking and other household services performed by the spouse or other family member are considered gratuitous and cannot form the basis for an award of attendant care services. [Citations.] The attendant care in the instant case, however, was provided by [DeLong’s] son’s girlfriend, not by a family member. Moreover, this case is similar to [citation], in which the claimant was held to be entitled to compensation for attendant care provided by her mother and a friend, even though the services involved ordinary household chores, where the claimant ordinarily lived alone and the mother and friend substantially departed from their usual daily routine to care for claimant. In this case, Ms. Wagner moved to Florida from New York in order to care for [DeLong].” DeLong, 491 So. 2d at 1307.

Dr. Szymke testified, without contradiction, that claimant could not live in his house without assistance provided either by a home care service or a “significant other.” Many of the tasks that Emily performed were necessitated by claimant’s injury and, therefore, we do not consider them to be ordinary household duties. (See Currier, 228 Neb. at 38, 421 N.W.2d 25.) 'Moreover, Emily, although engaged to the claimant, is not his spouse and, therefore, compensation for her performance of housekeeping services is not automatically barred.

The decision of the Commission on August 1, 1987, found, among other things, that the claimant required either home modifications or 24-hour-per-day care which Emily was not obligated to provide; this evidence was unrebutted, and based on this, the Commission awarded the sum of $21,924 for the services provided to the claimant by Emily.

Thereafter, the circuit court on review set aside the decision of the Commission awarding the sum of $21,924 for Emily’s services on the basis that the findings of the Commission were against the manifest weight of the evidence, even though the evidence that claimant required 24-hour-per-day care was unrebutted in the record. On the basis of the record, it is clear that the order of the circuit court dated February 11, 1988, was not supported by the record, and, accordingly, the circuit court improperly found that the award for Emily’s services was against the manifest weight of the evidence. The Commission’s award to the claimant for Emily’s services is supported by the evidence.

Having found that the evidence in the record supports the award of $21,924 for the services of Emily, and that the award is not against the manifest weight of the evidence, we therefore conclude7 that the September 2, 1987, decision of the Commission denying payment for Emily’s services in accordance with the remanding order of the circuit court is not supported by the record, and the record supports the awarding of $21,924 to the claimant for Emily’s services.

Finally, the claimant contends that the September 2, 1988, order of the Commission denying attorney fees for the failure of the employer to pay medical expenses, the bill for the Quality Care Service and for the maintenance care rendered by Emily was against the manifest weight of the evidence.

Section 16 of the Act provides as follows:

“Whenever the Commission shall find that the employer, *** or insurance carrier has been guilty of delay or unfairness *** in the adjustment, settlement or payment of benefits due such employee ***, or has been guilty of unreasonable or vexatious delay, intentional under-payment of compensation benefits, or has engaged in frivolous defenses which do not present a real controversy, within the purview of the provisions of paragraph (k) of Section 19 of this Act, the Commission may assess all or any part of the attorney’s fees and costs against such employer and his or her insurance carrier.” (Ill. Rev. Stat. 1987, ch. 48, par. 138.16.)

Section 19(k) provides in pertinent part:

“In case where there has been any unreasonable or vexatious delay of payment ***, then the Commission may award compensation additional to that otherwise payable under this Act equal to 50% of the amount payable at the time of such award. Failure to pay compensation in accordance with the provisions of Section 8, paragraph (b) of this Act, shall be considered unreasonable delay.” Ill. Rev. Stat. 1987, ch. 48, par. 138.19(k).

In Childress v. Industrial Comm’n (1982), 93 Ill. 2d 144, the arbitrator awarded $78.79 in attorney fees to claimant pursuant to section 16 of the Act as a penalty for the unreasonable and vexatious delay by the employer in the payment of medical expenses. On review, the Commission increased the award of attorney fees to $950.

On review by the supreme court, the court held that an award of attorney fees for unreasonable and vexatious delay in the payment of medical expenses was not proper under section 16 of the Act. The court explained:

“Furthermore, paragraph (k) of section 19 defines ‘unreasonable delay’ as referring to compensation as awarded under section 8(b) of the Act [citation]. Section 8(b) of the Act pertains solely to the payment of compensation for lost wages. This is clearly different from the payment by the employer for all necessary medical and surgical services as delineated by section 8(a) of the Act [citation]. Section 8(a) also provides that ‘[t]he furnishing of any such services *** by the employer is not the payment of compensation.’ ” (Emphasis in original.) 93 Ill. 2d at 149.

Although acknowledging that Childress might be correct when seeking section 16 penalties within the purview of the provision of section 19(k) of the Act, claimant argues that Childress does not address whether penalties may be assessed for failure to pay necessary maintenance expenses, nor does it address “unfairness towards an employee within the purview of the provision of paragraph (c) of Section 4 of the Act.”

In his brief, claimant has quoted only a portion of section 4(c) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.4(c)). Section 4(e) deals with actions by the Commission against insolvent employers or insurers, and although it does address actions against self-insured employers or insurance companies where they are practicing a policy of unfairness towards employees, this section does not permit the assessment of attorney fees as a penalty for such conduct.

With regard to “maintenance expense,” claimant ignores the language in Childress wherein the court stated:

“It is possible for attorney fees to be assessed against an employer for refusal to pay the injured employee’s expenses under 8(a) of the Act, but the proper statutory provision under which such fees are awarded is section 19(g) [citation]. *** Section 19(g) applies to the employer’s refusal to pay after a final award rather than mere delay in payment as in section 19(k).” (Childress, 93 Ill. 2d at 150-51.)

It is clear that claimant may not recover attorney fees for delay in payment of maintenance expenses as opposed to a refusal to pay following a final award.

Finally, claimant argues that it is the “ultimate unfairness” to him that he is forced to pay an attorney to procure medical benefits which his doctors have stated he is in need of and which are related to his accident. Claimant notes that section 16a(D) (Ill. Rev. Stat. 1987, ch. 48, 138.16a(D)) provides, “No attorneys’ fees shall be charged with respect to compensation for undisputed medical expenses.” He then surmises that the reverse must be true that attorney fees can be charged for disputed medical expenses.

Claimant misses the'point of section 16a(D). Section 16a(A) provides as follows:

“In the establishment or approval of attorney’s fees in relation to claims brought under this Act, the Commission shall be guided by the provisions of this Section and by the legislative intent, hereby declared, to encourage settlement and prompt administrative handling of such claims and thereby reduce expenses to claimants for compensation under this act." (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 48, par. 138.16a(A).)

Section 16a(D) bars the award of attorney fees to a claimant’s attorney when there is no dispute as to the medical bills to be paid. In other words, a claimant’s attorney does not get paid where no dispute exists. Section 16a(D) does not therefore support his contention that attorney fees should be awarded against his employer.

We granted the employer’s motion to cite additional authority of E.L. Kaplan Co. v. Industrial Comm’n (1990), 195 Ill. App. 3d 640. Relying on Kaplan, the employer for the first time makes the argument that claimant was not entitled to a section 19(b — 1) hearing (an expedited hearing) (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b — 1)) because claimant was receiving compensation under section 8(b) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.8(b)).

Ordinarily, an issue not presented to the trial court cannot be raised for the first time on appeal; however, a corollary to this rule permits an appellee to defend a judgment or review by raising an issue not previously ruled upon by the trial court if the necessary factual basis for the determination of such point is contained in the record, and the points on appeal are commensurate with the issues presented to the trial court. Coleman v. Hinsdale Emergency Medical Corp. (1982), 108 Ill. App, 3d 525, 527.

In the case before us, the employer never argued at any stage of the proceedings against the expedited hearing under section 19(b — 1) and, in fact, participated in those proceedings. The Kaplan decision was rendered prior to oral argument in this case but was still not argued by the employer at that time. At this stage of the proceedings, whether claimant was entitled to an expedited hearing bears no relationship to the issue which we have resolved in claimant’s favor. Finally, the statute which compelled the decision in Kaplan was in existence prior to the time claimant in this case requested a section 19(b — 1) hearing.

While litigants are bound by rules of waiver, the courts are not similarly barred when it may be proper to override them to achieve a just result or maintain a uniform body of precedent in cases of public importance. (Diversified Computer Services, Inc. v. Town of York (1982), 104 Ill. App. 3d 852, 855.) We are of the opinion that courts are similarly not bound by the corollary to the rule of waiver under the same circumstances. In the interest of a just result in this case, we will not permit the employer to interject a new theory upon which to deny claimant benefits for maintenance expenses where that theory was available to the employer throughout the course of these proceedings and where its introduction into the case at the final stages of the proceedings would serve to greatly prejudice the claimant.

The decision of the circuit court affirming the Commission’s denial of the award of compensation for the services of Emily Purtscher is reversed and that award is reinstated. The remainder of the decision of the circuit court is affirmed.

Reversed in part; affirmed in part and award reinstated.

McNAMARA, McCULLOUGH, and LEWIS, JJ., concur.

PRESIDING JUSTICE BARRY,

concurring in part and dissenting in part:

While I generally concur with the majority’s decision, I disagree with its specific finding that section 16 penalties may not be awarded for an unreasonable and vexatious delay in the payment of medical and maintenance expenses. The majority rests its position that such penalties may not be awarded on Childress v. Industrial Comm’n (1982), 93 Ill. 2d 144, 442 N.E.2d 841. I believe, however, that Justice Simon in his dissent in Childress does a better job of applying the rules of statutory construction than does the Childress majority. For the reasons stated by Justice Simon, I find that the phrase “unreasonable or vexatious delay” in section 16 includes a delay in the payment of medical and maintenance expenses. Accordingly, I would reinstate the Commission’s initial decision awarding the claimant attorney fees.

Quoting from Childress, the majority here attempts to support its position by noting that section 19(g) provides for an award of attorney fees when an employer refuses to pay an injured worker’s section 8(a) expenses after a final award. In my view, section 19(g) does not prevent attorney fees from being awarded for a delay in the payment of medical and maintenance expenses at an earlier stage, any more than it prevents a similar award for a delay in disability benefits. Section 19(g) merely provides an additional means of gaining attorney fees.

Also quoting from Childress, the majority states that the furnishing of “any such services” is not the payment of compensation. In so doing, the court implies that “such services” refers to all section 8(a) medical expenses. The Childress majority and the majority here, however, have taken the quoted language out of context, since it refers only to the employer’s furnishing of artificial limbs, eyes, and teeth.

In reaching its decision, the Childress court relied heavily on Colclasure v. Industrial Comm’n (1958), 14 Ill. 2d 455, 153 N.E.2d 33. However, Colclasure is distinguishable. It held only that medical expenses were not “compensation” for the purposes of a provision which extinguished the right to “compensation” on an employee’s death. It also noted that medical expenses affect the entire family and, to further the purposes of the Act, should be payable after an employee’s death.

Here, the insurance company discontinued the Quality Care assistance even though it appears to have been absolutely necessary for the claimant as of the date of the arbitrator’s initial hearing. This left the paraplegic claimant with only a rental wheelchair, some unidentified bathroom equipment, and a portable ramp. Just as the statute does not intend that an employer should be allowed to litigate vexatiously to delay the payment of disability benefits, I do not believe that it should be read so as to permit an employer to vexatiously delay the payment of necessary medical and maintenance expenses, forcing the employee to sue for those expenses at his own cost. Denying an employee attorney fees in such a case is repugnant to the Act’s goals. See Ill. Rev. Stat. 1987, ch. 48, par. 138.16a(A). Accordingly, I would confirm the August 1,1987, decision of the Commission in its entirety.

Further, I urge the legislature to clarify whether medical and maintenance care should be considered “compensation” so that penalties may be imposed in cases such as this.


author: JUSTICE WOODWARD

text:
    MICHAEL WILLIAM HARRISS, Plaintiff-Appellee, v. KENNETH E. ELLIOTT, Defendant-Appellant.
    Second District
    No. 2—90—0001
    Opinion filed January 15, 1991.

      Robert Steven Wilson, of Sycamore, for appellant.
    Richard L. Turner, Jr., of Sycamore, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, Kenneth Elliott, appeals from the judgment entered in favor of plaintiff, Michael. Harriss, in the amount of $5,140.75. Defendant raises five issues on appeal: first, whether plaintiff can recover punitive damages when there was no injury; second, whether the trial court erred in granting plaintiff’s motion in limine which excluded evidence of a settlement with a codefendant; third, since the settlement exceeded the actual damages, whether there were any actual damages to form a basis for punitive damages; fourth, whether punitive damages of $5,000 are excessive when the actual damages were only $140.75; and finally, whether defendant was entitled to a credit in the amount of the codefendant’s settlement payment against both the actual and the punitive damage awards.

Defendant has failed to file the reports of proceedings in this cause Or an acceptable substitute (see 107 Ill. 2d Rules 323(b), (c), (d)). The appellant has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error, and in the absence of such a record on appeal, it will be presumed that the order entered by the trial court was in conformity with the law and had a sufficient factual basis. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 391-92.) Any doubts which may arise from the incompleteness of the record will be resolved against the appellant. W.E. Mundy Landscaping & Garden Center, Inc. v. Hish (1989), 187 Ill. App. 3d 164, 166.

The record does reflect that on February 11, 1988, plaintiff filed a complaint in which he alleged that he was struck by a tow truck driven by defendant. In paragraph four of the complaint, plaintiff alleged that defendant’s actions were negligent, but in paragraph five of the complaint he alleged the actions were willful and wanton.. Plaintiff also named Patricia Elliott, d/b/a Pat’s Towing, as a defendant. On February 14, 1989, pursuant to a stipulation by plaintiff and Patricia Elliott, the cause was dismissed with prejudice as to Patricia Elliott. The order stated that the court found the matter fully compromised and settled as it concerned Patricia Elliott and that all costs had been paid, but the order did not address whether the settlement was made in good faith. The subsequently filed release stated that Patricia Elliott was released in consideration of $500. On September 13, 1989, plaintiff filed a motion to amend his complaint, supported by his affidavit pursuant to section 2 — 604.1 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 604.1), in which he added a prayer for punitive damages. An order granted the motion on September 20,1989.

On October 3, 1989, the court conducted a trial, and the jury entered the following verdict:

“We, the Jury, find for the plaintiff and against the defendant and assess the total amount of damages as follows:
The nature, extent and duration of the injury $ -0-
The disability resulting from the injury $ -0-
The pain and suffering experienced as a result of the injuries $ -0-
The reasonable expense of necessary medical care, treatment and services, received $ 140.75
Punitive damages $5,000.00
Total amount of damages $5,140.75:

The court entered judgment for $5,140.75 on the verdict. Defendant filed a motion to vacate the judgment and/or for a new trial, which the trial court denied. The trial court granted plaintiff’s motion for additur pursuant to section 5 — 108 of Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 5 — 108), in which plaintiff sought $129 for costs expended in the cause. Defendant appeals.

Defendant’s first argument is that plaintiff is not entitled to any award because he suffered no injury. However, plaintiff did receive compensation for “reasonable” and “necessary” medical expenses. There is nothing in the record before us to contradict this finding by the jury, and we must presume the award had a sufficient factual basis. Foutch, 99 Ill. 2d at 392.

Defendant’s second and third issues are that the trial court erred in granting plaintiff’s motion in limine by which evidence of the settlement with the codefendant was excluded. Defendant maintains that, since the settlement exceeded the plaintiff’s actual damages, the jury would not have granted any additional damages and, therefore, there would have been no basis for granting punitive damages.

As a general rule, evidence of a settlement with one defendant is inadmissible against a plaintiff in his action against a remaining defendant. (Casson v. Nash (1978), 74 Ill. 2d 164, 170; see also Batteast v. Wyeth Laboratories, Inc. (1990), 137 Ill. 2d 175, 184; Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, 227.) The trial court and not the jury should apply a setoff based on a settlement after the jury has determined the total damages without knowledge of any prior settlement. (Singh v. Air Illinois, Inc. (1988), 165 Ill. App. 3d 923, 935.) However, a claim for punitive damages cannot stand where there is no existing claim for compensatory damages. (Ecker v. Big Wheels, Inc. (1985), 136 Ill. App. 3d 651, 655.) Defendant contends that if the jury had been informed that the setoff exceeded the actual damages, there would have been no basis for assessing punitive damages, citing Thrall Car Manufacturing Co. v. Lindquist (1986), 145 Ill. App. 3d 712, 718.

In Thrall, the plaintiff sued three defendants for a conspiracy to defraud. Plaintiff settled with the principal defendant for the full amount of the compensatory damages, i.e., the amount of which the plaintiff was defrauded. The other two defendants were dismissed on the ground that they owed no duty to the plaintiff. The court then ruled that because the plaintiff had already been fully compensated for his actual damages, the claims for punitive damages against the other defendants could not stand and were thus properly dismissed. 145 Ill. App. 3d at 718.

Thrall is distinguishable because in that case the actual damages were known prior to trial. In the cause before the court, the actual damages for unliquidated claims for pain and suffering and the like were not known until the jury verdict determined them. Plaintiff also notes that in Thrall the court stated that the plaintiff had been compensated for its actual damages “and no others [were] alleged.” In the cause before the court, there is no indication in the record that the $500 settlement received from the codefendant satisfied all the alleged damage claims of plaintiff. The prayer for relief in the amended complaint sought $15,000 in damages.

Defendant’s fourth argument is that the $5,000 punitive damage award was excessive. Defendant argues that punitive damages are not favored in the law (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 188), that the punitive damages are out of proportion to the actual damages, and that the legislature voiced its objections to the assessment of punitive damages by enacting section 2 — 1207 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1207), which permits a court to enter a remittitur, grant a new trial, or apportion the award to the Illinois Department of Rehabilitation Services.

However, a reviewing court will not disturb an award of punitive damages that is allegedly excessive unless it appears that the award is a result of passion, partiality, or corruption. (Deal v. Byford (1989), 127 Ill. 2d 192, 204.) Defendant has presented no evidence that the award was a result of passion, partiality, or corruption. This court has affirmed other awards of punitive damages that far exceeded the actual damages. (See Poeta v. Sheridan Point Shopping Plaza Partnership (1990), 195 Ill. App. 3d 852, 857.) There is no evidence that defendant’s behavior was not willful and wanton. (See Loitz v. Remington Arms Co. (1990), 138 Ill. 2d 404, 417.) There is no evidence that defendant was denied his rights of due process of law from the jury’s unfettered discretion in assessing such an award. (See Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc. (1989), 492 U.S. 257, 276, 106 L. Ed. 2d 219, 239, 109 S. Ct. 2909, 2921; see also Pacific Mutual Life Insurance Co. v. Haslip (Ala. 1989), 553 So. 2d 537, cert, granted (1990), 494 U.S. 1065, 108 L. Ed. 2d 782, 110 S. Ct. 1780.) We also note that jury’s discretion was not without control as the trial court had the opportunity, but declined, to grant a remittitur (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1207).

Finally, defendant contends he is entitled to a credit against the judgment by reason of section 2 of the Contribution Among Joint Tortfeasors Act (Act) (Ill. Rev. Stat. 1987, ch. 70, par. 302). Defendant contends he is entitled to a setoff of the full $500, but plaintiff contends that defendant is entitled to a setoff of only $140.75, as the balance represents punitive damages which are not covered by the Contribution Act. Defendant contends that the whole $500 may be credited because none of the award was allocated to either punitive or actual damages. Plaintiff attempts to avoid this argument by contending that because a prayer for relief had not been amended to request punitive damages at the time of the settlement, the parties to it could not have contemplated punitive damages as part of the settlement.

Intentional tort-feasors are not entitled to contribution under the Act. (Gerill Corp. v. Jack L. Hargrove Builders, Inc. (1989), 128 Ill. 2d 179, 206.) The amount of an award allocated to punitive damages is not subject to contribution. (Hall v. Archer-Daniels-Midland Co. (1988), 122 Ill. 2d 448, 459-60.) However, plaintiff has confused contribution with setoff. Contribution is a cause of action between two codefendants to recover an amount paid in excess of the pro rata share of common liability. The principle against double recovery prevents a plaintiff from collecting twice from joint debtors as the amount paid by one is set off from the common liability. (Wilson v. The Hoffman Group, Ltd. (1989), 131 Ill. 2d 308, 321.) The purpose of compensatory tort damages is to compensate the plaintiff for his injuries, not to punish defendants or bestow a windfall upon plaintiffs. (131 Ill. 2d at 321.) Plaintiff is correct that the right of contribution does not apply to punitive damages, but that rule only prevents defendant from being able to sue Patricia Elliott, the codefendant, had she not settled pursuant to the Act. Plaintiff may not recover twice for the same injury. Nguyen v. Tilwalli (1986), 144 Ill. App. 3d 968, 973.

Without deciding whether setoff is ever applicable to punitive damage awards, we conclude that setoff is not appropriate in the instant case because the entire $500 settlement is clearly allocable to compensatory damages. The potential liability of Patricia Elliott, the settling defendant, would have been vicarious in nature. Vicarious liability presents a diminished basis for an award of punitive damages. (Mattyasovszky v. West Town Bus Co. (1975), 61 Ill. 2d 31, 36.) Moreover, the fact that plaintiff never sought punitive damages from Patricia Elliott confirms her lack of exposure to such damages. Thus, setoff of the $500 settlement against the award of punitive damages would have been inappropriate in this case.

We further note that the decisions regarding the double recovery rule refer only to compensatory tort damages. (Popovich v. Ram Pipe & Supply Co. (1980), 82 Ill. 2d 203, 209; Dial v. City of O’Fallon (1980), 81 Ill. 2d 548, 558.) The rationale supporting punitive damages is different because a punitive damage award is not directed at compensating a plaintiff’s injury but is directed at punishing a defendant’s actions. When a jury makes an assessment of punitive damages, one of the factors to be considered is the defendant’s net worth. There is some authority for the proposition that punitive damages, unlike compensatory damages, are to be assessed separately and not jointly. (See Bosco v. Serhant (7th Cir. 1987), 836 F.2d 271, 281; Kimes v. Trapp (1964), 52 Ill. App. 2d 442, 447. But see Smith v. Wunderlich (1873), 70 Ill. 426, 437.) A jury’s finding that a specific amount would sufficiently punish and deter a defendant from further willful and wanton misconduct would be of diminished effect if that party did not have to pay the full amount. Bresland v. Ideal Roller & Graphics Co. (1986), 150 Ill. App. 3d 445, 458.

Defendant contends that, because the settlement did not allocate the damages between actual and punitive damages, the full $500 should be set off. The issue of whether a settlement was properly allocated goes to the question of whether the settlement was made in good faith. (Hall, 122 Ill. 2d at 460.) Aside from the question whether the punitive damages cannot be set off, defendant has failed to show that the settlement was not made in good faith. (See Wilson, 131 Ill. 2d at 318-19; Hall, 122 Ill. 2d at 461.) Plaintiff, however, has argued that none of the $500 was allocated to the punitive damages, and he is thus estopped from arguing that the $500 cannot be applied against the actual damages.

The jury granted $140.75 in compensatory damages. The court granted plaintiff’s motion for additur for $129 in costs. Under section 5 — 108 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 5 — 108), a plaintiff may recover costs which shall be recovered and enforced as other judgments. Plaintiff has not shown that a codefendant’s share of the common liability should exclude costs where costs have been added to the judgment, especially when the order dismissing the codefendant found that all costs were paid. Plaintiff has already recovered the $140.75 in damages and the $129 in costs because these amounts do not exceed the $500 he was paid. Accordingly, in the interest of doing justice, we use our authority under Supreme Court Rule 366(a)(5) (107 Ill. 2d R. 366(a)(5)) to reduce the judgment against defendant to $5,000.

For the above reasons, the judgment of the trial court is modified to reflect a $5,000 judgment against defendant, Kenneth Elliott, and the judgment is affirmed as modified.

Affirmed as modified.

REINHARD, P.J., and UNVERZAGT, J., concur.


author: PRESIDING JUSTICE BARRY

text:
    JOHN HEBELER, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Holland Company, Appellee).
    Second District (Industrial Commission Division)
    No. 2—89—0615WC
    Opinion filed January 15, 1991.

      James C. Serkland, of Serkland & Muelhausen, of Chicago, for appellant.
    Kevin Luther, and Douglas J. Pomatto, both of Heyl, Royster, Voelker & Allen, of Rockford, and Karen L. Kendall, of Heyl, Royster, Voelker & Allen, of Peoria, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The petitioner, John Hebeler, filed a petition for emergency hearing under section 19(b — 1) of the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b — 1)). He claimed that his back condition of herniated nucleus pulposus with sciatica had resulted from an injury he suffered on August 7, 1987, while working for the respondent, Holland Company. The arbitrator found that the petitioner’s back condition was causally connected with his work. On review, the Industrial Commission (Commission) found that while the August 7 injury had resulted in acute lumbar strain, the petitioner’s subsequent activities had broken the causal chain between his injury and the November 3, 1987, diagnosis of herniated nucleus pulposus. The circuit court confirmed the Commission’s decision. The petitioner appeals.

The petitioner testified that on August 7, 1987, he was changing the 45- to 50-pound bars on a stripper as part of his employment with the respondent. While he was removing the bars and carrying them into the shop, he hurt his back. He finished working, then went home. That night, his back started bothering him. On August 11, 1987, he went to see Dr. Jay Ginther. The petitioner did not work thereafter.

Pursuant to Dr. Ginther’s instructions, the petitioner began a physical therapy program. While he claimed that he missed the physical therapy sessions three times at most, the physical therapist’s records indicated that he was frequently absent. Further, the therapist stated that the petitioner appeared unmotivated and that it was unlikely he could only perform at the low level he demonstrated in therapy.

The petitioner admitted that between August 7 and November 3, 1987, he played pool 15 times for about 2xk hours each time and went duck hunting on a dozen occasions. The duck hunting consisted mainly of sitting in a blind he had helped construct after the injury. He also acknowledged that he tried chopping wood with an 8-pound maul, but after splitting a couple of logs quit because of the pain in his back.

He further testified that he had previously injured his back at work in 1978 and had undergone surgery. For his injury, he received a $52,500 worker’s compensation award.

Dr. Ginther noted in his deposition that the petitioner’s 1978 surgery involved a laminectomy exploration at the L-5,' S-l disc level and the removal of a disc at the L-4, L-5 level on the left side due to a herniated nucleus pulposus. When he first saw the petitioner on August 11, 1987, he diagnosed that he was suffering from acute lumbar strain. X rays taken at the time showed old disc disease and arthritic changes, but nothing further. Dr. Ginther prescribed physical therapy and limited him to light-duty work involving no more than 10 to 12 pounds of lifting. When the petitioner’s pain did not subside in the following weeks, Dr. Ginther sent him to Dr. Oliver Ancheta for neurological studies.

Dr. Ancheta examined the petitioner on October 9, 1987, and was unable to detect any objective evidence of involvement of the nerve root. He noted, however, that the subjective symptoms were referable to the L-5, S-l nerve root on the right.

On November 3, 1987, Dr. Ginther hospitalized the petitioner for a myelogram and CT scan. They showed at the L-4, L-5 level a herniated nucleus pulposus on the right side. Based upon the petitioner’s description of the lifting episode preceding his injury and on the petitioner’s claim that he had had no back problems since 1978, Dr. Ginther attributed the petitioner’s condition of ill-being to his work.

The petitioner’s attorney posited a hypothetical question to Dr. Ginther, in effect asking whether certain activities between the August 7 injury and the November 3 diagnosis could have broken the causal chain. The hypothetical involved an individual who in October 1987 hunted ducks, chopped wood, played pool, pulled the tires off of a pickup truck, welded on a car, and moved a 600- to 700-pound safe using a dolly. Dr. Ginther stated that those activities would make it impossible to differentiate between the August and the October activities as the cause of the herniated nucleus pulposus found in November. However, he further stated that the number and duration of the activities listed in the hypothetical would be a factor in determining whether they broke the causal chain. He noted that one would have to assume, for instance, that “cutting and loading wood” meant one pickup truck load of wood.

A private investigator reported that in October 1987, he had observed a man welding beside a garage he believed was the petitioner’s, though because of the mask the man wore he could not be sure it was the petitioner. He further reported that he saw the petitioner load shotguns and a cooler into a pickup and go duck hunting in a blind. He also watched the petitioner play pool, which included repeated bending at the waist. The petitioner did not appear to experience any pain or difficulty when bending over.

At the respondent’s request, Dr. Norm Hagman examined the petitioner on April 11, 1988. Dr. Hagman did not offer any opinion regarding whether the activities in October would have broken the causal connection between the petitioner’s work injury and his subsequent condition of ill-being.

The arbitrator found that the petitioner’s August 7, 1987, work injury had caused his temporary total disability from August 7, 1987, through June 7, 1988, the date of the hearing. He therefore awarded him $208 per week for 434/7 weeks, plus medical expenses of $3,481.50.

On review, the Industrial Commission found that the petitioner was temporarily totally disabled for nine weeks and was entitled to $1,905 for medical expenses. The Commission further found, however, that the petitioner had failed to prove a causal relationship between his accidental injuries of August 7 and his condition of ill-being after October 9, 1987. The circuit court found that the Commission’s decision was not against the manifest weight of the evidence.

On appeal, the petitioner first argues that the Commission’s conclusion that his October activities broke the causal chain between his August injury and the November diagnosis of herniated nucleus pulposus was against the manifest weight of the evidence. In particular, he contends that the evidence of causality was unrefuted since, because of the inaccuracies in the hypothetical, no weight can be given to Dr. Ginther’s response to the hypothetical question.

Whether a causal connection exists between an accident and a condition of ill-being may be determined from medical and nonmedical evidence. (International Harvester v. Industrial Comm’n (1982), 93 Ill. 2d 59, 442 N.E.2d 908.) In presenting evidence by a hypothetical question, counsel propounding the question has a right to ask it, assuming only the facts as he perceives them to be shown by the evidence; opposing counsel may then challenge the controverted facts by presenting his own hypothetical question on cross-examination. (Johns-Manville Products Corp. v. Industrial Comm’n (1979), 78 Ill. 2d 171, 399 N.E.2d 606.) It is the function of the Commission to determine the facts and draw reasonable inferences from competent evidence. (City of Chicago v. Industrial Comm’n (1970), 45 Ill. 2d 350, 259 N.E.2d 5.) The findings of the Commission will not be disturbed on appeal unless they are contrary to the manifest weight of the evidence. Morgan v. Industrial Comm’n (1980), 82 Ill. 2d 524, 413 N.E.2d 383.

Initially, we note that while the respondent’s hypothetical question to Dr. Ginther contained a couple of facts not in evidence, that did not render Dr. Ginther’s answer completely meaningless. For the most part, the facts contained in the hypothetical were the respondent’s interpretation of disputed evidence. The petitioner could, and did, question the validity of the hypothetical on redirect examination by bringing out that Dr. Ginther’s answer would be different depending on the extent of the activities involved. In particular, the petitioner brought out that Dr. Ginther was erroneously assuming that the petitioner had chopped a pickup truck load of wood. It was for the Commission to determine the weight to be given his answer to the hypothetical in light of the actual evidence and the doctor’s misunderstanding. We find no indication the Commission accorded his answer an undue amount of weight.

We further note that in the instant case the Commission was presented with a petitioner whose accident occurred on August 7, 1987, but at that time resulted only in acute lumbar strain. An October 9, 1987, neurological examination failed to show any objective symptoms of injury. A month later, he was diagnosed as suffering from a herniated nucleus pulposus with sciatica. Between the initial injury and the diagnosis of herniated nucleus pulposus, the petitioner engaged in activities requiring physical exertion and a great deal of bending at the waist. Further, he showed little motivation in physical therapy, and his therapist believed he was capable of performing better than he was.

The issue before us is whether the Commission’s decision was against the manifest weight of the evidence. Given the evidence in this case, we find that the petitioner has not met this test on appeal. We conclude that the Commission did not err in finding that the petitioner failed to prove a causal connection between his work injury and his condition after October 9,1987.

The petitioner further argues on appeal that the Commission erred in failing to strike Dr. Ginther’s answer to the hypothetical question. Initially, we note that the petitioner failed to request a ruling from the arbitrator on his objection to the hypothetical, which was made during a deposition. Accordingly, he has waived this objection. See Chicago Rotoprint v. Industrial Comm’n (1987), 157 Ill. App. 3d 996, 509 N.E.2d 1330.

Additionally, as we noted above, the Commission, as the trier of fact, was free to determine the weight to be given to the hypothetical. (See Johns-Manville Products Corp. v. Industrial Comm’n (1979), 78 Ill. 2d 171, 399 N.E.2d 606.) There being no indication the Commission abused its discretion in this respect, we find no error.

The judgment of the circuit court of Carroll County confirming the decision of the Industrial Commission is affirmed.

Affirmed.

McNAMARA, WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.


author: JUSTICE McLAREN

text:
    GEORGE GEZENDORF, Plaintiff-Appellee, v. JOHN WASHBURN, Director of the Department of Insurance, Defendant-Appellant.
    Second District
    No. 2—90—0101
    Opinion filed January 18, 1991.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Claudia E. Sainsot, Assistant Attorney General, of Chicago, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, John Washburn, former Director of the Illinois Department of Insurance, appeals from the January 19, 1990, order of the trial court reversing an administrative order. Washburn contends that (1) the trial court lacked jurisdiction to review the administrative findings; (2) the trial court erred in ordering the deposition of two potential witnesses and then considering this “new” evidence in reversing the administrative order; and (3) the trial court erred in determining that the administrative decision was against the manifest weight of the evidence. We reverse.

Plaintiff, George Gezendorf, was an insurance salesman employed by American Family Insurance Companies (American). American terminated Gezendorf s employment and, in reviewing his files, discovered certain improprieties. American forwarded documentation of these improprieties to the Illinois Department of Insurance (Department).

On August 13, 1985, Washburn, in his capacity as Director, entered an order revoking Gezendorf’s insurance producer’s license. This order was mailed to Gezendorf by certified mail on August 14. The order informed Gezendorf that a request for a hearing on the matter must be made within 30 days from the mailing of the order or the decision would become final.

Gezendorf did not request a hearing within the 30-day period. Subsequently, Gezendorf filed a petition for injunctive relief in the circuit court of Du Page County. The petition requested that the Director be enjoined from revoking Gezendorf s license. Gezendorf alleged that he did not receive the notice mailed on August 14 until October 17. The circuit court granted Gezendorf s petition on November 8, 1985, and ordered that a hearing be conducted. Neither the petition nor the circuit court order is contained in the record.

An administrative hearing was held and concluded on October 18, 1986. On December 3, 1987, the hearing officer issued findings of fact and conclusions of law recommending that Washburn’s August 13, 1985, order revoking Gezendorf’s license be reinstated. Washburn adopted the hearing officer’s findings and conclusions and issued an order reinstating the August 13, 1985, order. The revocation of Gezendorf’s license was to become effective on December 28,1987.

Gezendorf filed a complaint for administrative review on January 15, 1988. Pursuant to a motion by Gezendorf, the court ordered James Jones, an attorney for the Department, and Washburn to submit to depositions. A hearing on plaintiff’s complaint was held, and on January 19, 1990, the court entered an order reversing the administrative order. Defendant timely appeals from this order.

Initially, we note that the plaintiff has failed to file a responsive brief. We will review the merits of this appeal pursuant to the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

The first issue raised by defendant is whether the trial court had jurisdiction to review the administrative findings. Defendant argues that plaintiff failed to exhaust his administrative remedies by not requesting a hearing within 30 days of the mailing of the notice of revocation.

Section 505.1(b) of the Illinois Insurance Code (Code) provides:

“Suspension or revocation of a license or the denial of an application pursuant to this Section shall be by written order sent to the licensee or applicant by certified or registered mail at the address specified in the records of the Department. The licensee or applicant may in writing request a hearing within 30 days from the date of mailing. If no written request is made, such order shall be final upon the expiration of said 30 days.” (Ill. Rev. Stat. 1987, ch. 73, par. 1065.52-l(b).)

It is undisputed that the Department sent a copy of the written order to Gezendorf via certified mail on August 14, 1985. It is also undisputed that Gezendorf did not request a hearing within 30 days of the mailing. In fact, Gezendorf never requested a hearing from the Department. Instead, Gezendorf went to the circuit court requesting that the Department be enjoined from revoking his license.

At this point in the proceedings, the circuit court was without jurisdiction to review or enjoin the Department’s order as Gezendorf had failed to exhaust his administrative remedies. (See Steward v. Allstate Insurance Co. (1980), 92 Ill. App. 3d 637, 641.) Gezendorf did not request a hearing as he was entitled to do under the Code, nor did he comply with the requirements of the Administrative Review Law by properly seeking judicial review. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 102.) The fact that a hearing was subsequently conducted pursuant to court order does not confer jurisdiction for administrative review of the agency’s decision. (See Burns v. Edgar (1989), 178 Ill. App. 3d 708.) Gezendorf failed to proceed in accordance with section 3 — 102 of the Administrative Review Law (Act) (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 102), and, therefore, the circuit court had no jurisdiction for administrative review of the Department’s decision to revoke Gezendorf’s license.

Even if the court did have jurisdiction, it erred by reversing the Department’s decision.

Regarding administrative review by a circuit court, section 3 — 110 of the Act states:

“No new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency shall be heard by the court.” (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110.)

In the case at bar, it is obvious that the court acted in direct contravention of the statute when it allowed depositions that were not part of the administrative proceeding to be taken, submitted and considered by the circuit court. In Burke v. Board of Review, Illinois Department of Labor (1985), 132 Ill. App. 3d 1094, a similar situation existed. The court stated that, rather than hearing or considering new evidence the trial court deemed necessary upon review, the trial court should have remanded the matter to the administrative agency for a hearing to receive this additional necessary evidence. (Burke, 132 Ill. App. 3d at 1098-99.) We determine that the court erred by accepting and considering evidence that was not presented in the administrative proceeding.

Defendant's final contention is that the manifest weight of the evidence supported the Department’s decision to revoke Gezendorf’s license. Therefore, the trial court erred in reversing the Department’s decision. It is well settled that an agency’s findings concerning factual questions are prima facie true and correct (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110) and should not be disturbed on review unless they are contrary to the manifest weight of the evidence. (School District No. 175 v. Elinois Fair Employment Practices Comm’n (1978), 57 Ill. App. 3d 979, 984.) The reviewing court is not to substitute its judgment for that of the agency. Elinois Liquor Control Comm’n v. Elinois Civil Service Comm’n (1980), 80 Ill. App. 3d 647, 654.

Section 505.1 of the Code provides:

“(a) Any license issued under this Article may be suspended or revoked, and any application for a license may be denied, if the Director finds that the licensee or applicant
* * *
(4) has misappropriated or converted to his own use, or improperly withheld, money required to be held in a fiduciary capacity;
* * *
(6) has, in the transaction of business under his license, used fraudulent, coercive or dishonest practices, or has demonstrated incompetence, untrustworthiness or financial irresponsibility.” (Ill. Rev. Stat. 1989, ch. 73, pars. 1065.52 — 1(a)(4), (a)(6).)

In the case at bar, substantial testimonial as well as documentary evidence was presented to show that plaintiff “misappropriated” or “improperly withheld” money that belonged to his customers. In fact, plaintiff even admitted that he overcharged customers on two occasions. The evidence presented during the administrative proceedings supported the decision of the Department and was not against the manifest weight of the evidence.

In announcing its decision, the trial court stated:

“I think the decision is against the manifest weight of the evidence.
Now, I say that hopefully with the ability to have ignored the procedural due process errors that were committed. I say that not weighing the credibility of the witnesses, but the reliability of the evidence itself and the source of that evidence itself—
***
in its totality. In its totality. Not the source, but the evidence itself. In the totality of it.”

It is well established that a court may not, upon administrative review, conduct a hearing de novo. (Pipe Trades, Inc. v. Rauch (1954), 2 Ill. 2d 278, 291.) The court’s role is to determine whether the administrative decision is just and reasonable in light of the evidence presented. (Murbach v. Anderson (1981), 96 Ill. App. 3d 1015, 1018.) We determine that the trial court erred by reversing the decision of the Department. Therefore, the Department’s decision revoking plaintiff’s license is reinstated.

The judgment of the circuit court of Du Page County is reversed.

REINHARD and GEIGER, JJ., concur.