author: JUSTICE RIZZI PRESIDING JUSTICE GREIMAN,

text:
    HARRIS TRUST AND SAVINGS BANK, Plaintiff-Appellee, v. AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as Trustee, et al., Defendants (George B. Koeckritz et al., Defendants-Appellants).
    First District (3rd Division)
    No. 1—90—2379
    Opinion filed June 3,1992.

      GREIMAN, P.J., dissenting.
    Ashcraft & Ashcraft, Ltd., of Chicago (Timothy J. McGonegle and Cynthia A. Manestar, of counsel), for appellants.
    James E. Spiotto, Ann Acker, and Michael T. Benz, all of Chapman & Cutler, of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff Harris Trust and Savings Bank (Harris Bank) brought this action to foreclose on a mortgage and to recover unpaid principal and interest owed on certain demand and promissory notes and guarantees against American National Bank and Trust Company of Chicago, as trustee u/t/a No. 65940 (American National Bank), George B. Koeckritz, Koeckritz International, Inc. (Koeckritz, Inc.), registrar of titles of Cook County, Illinois, United States of America, Baler Software Corporation, and other unknown owners and nonrecord claimants. American National Bank, registrar of titles of Cook County, Illinois, the United States of America and Baler Software Corporation are not parties to this appeal. The parties stipulated to a dismissal of the underlying action. The trial court, however, reserved jurisdiction to determine the amount of attorney fees and related costs that Harris Bank had incurred pursuant to an attorney fee provision in the loan and guaranty agreements executed by the parties. Following a hearing, the trial court entered an order granting Harris Bank’s motion for approval of its petition for attorney fees and related costs, and entered judgment in favor of Harris Bank and against Koeckritz and Koeckritz, Inc., in the amount of $20,459.85. On, appeal, Koeckritz and Koeckritz, Inc., contend that (1) Harris Bank’s fee petition is inadequate to support an award of attorney fees and related costs; (2) the trial court failed to make a proper evidentiary determination of the reasonableness of Harris Bank’s fee petition; (3) the trial court abused its discretion when it ruled that the award of fees totalling $17,080 was reasonable; and (4) the trial court abused its discretion when it ruled that the award of related costs totalling $3,379.85 was reasonable. We affirm in part, reverse in part, and remand.

In February 1985, Koeckritz executed a demand note payable to the order of Harris Bank in the principal amount of $318,354. In a separate agreement, Koeckritz, Inc., guaranteed repayment of the note. In November 1985, Koeckritz created a trust, naming American National Bank as trustee, and reserving to himself 100% of the beneficial interest in and power of direction over the trust. In December 1985, Koeckritz purchased an industrial development bond in the principal amount of $1.25 million and executed a promissory note in that amount to Harris Bank evidencing the indebtedness. To secure the obligations under the loan agreement and promissory note, Koeckritz and American National Bank granted a mortgage to Harris Bank in certain real and personal property owned legally or beneficially by Koeckritz. Koeckritz, Inc., again executed a separate agreement guaranteeing payment of amounts due on the bond and under the loan agreement. The loan and guaranty agreements each contained a provision providing that Koeckritz and Koeckritz, Inc., would be obligated to pay reasonable attorney fees and related costs incurred by Harris Bank in the event of default under the notes, mortgage or loan guarantees.

In September 1989, Koeckritz and American National Bank missed several principal and interest payments due under the demand note, promissory note and loan agreement. Harris Bank demanded payment from Koeckritz, Inc., pursuant to its guarantees, but payment was never received. Koeckritz, Koeckritz, Inc., and American National Bank were subsequently deemed to be in default.

On March 28, 1990, Harris Bank filed a complaint in the circuit court seeking to foreclose on secured property held by American National Bank, to enforce an assignment of rents encumbering the secured property, to recover for breach of the loan agreement, demand note and promissory note executed by Koeckritz and American National Bank, and for breach of the guaranty agreements executed by Koeckritz, Inc. On June 18, 1990, the trial court entered an order dismissing the underlying action, but reserved jurisdiction to determine the amount of attorney fees and related costs incurred by Harris Bank due under the attorney fee provision.

On July 9, 1990, Harris Bank filed its motion for approval of attorney fees and related costs. On August 6, 1990, following a hearing on Harris Bank’s motion and fee petition, the trial court granted Harris Bank’s motion and entered judgment in favor of Harris Bank and against Koeckritz and Koeckritz, Inc., in the amount of $20,459.85. This appeal followed.

Koeckritz and Koeckritz, Inc., contend that Harris Bank’s fee petition is inadequate to support an award of attorney fees and related costs. Koeckritz and Koeckritz, Inc., relying upon Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 518 N.E.2d 424, argue that Harris Bank’s fee petition impermissibly lists each attorney’s time as an aggregate total for each day, fails to set forth any information concerning the skills and standing of the attorneys performing the services, inadequately describes the legal services performed in connection with the underlying action, fails to substantiate computer research charges, and fails to establish the existence of a policy of billing ordinary costs directly to clients, or in the alternative, to show that the fees charged are lower than those charged in the community for the same services.

It is well established that a party seeking to recover attorney fees from another party bears the burden of presenting sufficient evidence from which the trial court can render a decision as to their reasonableness. (Mars v. Priester (1990), 205 Ill. App. 3d 1060, 1064, 563 N.E.2d 977, 980; Corkill Electric Co. v. City of Chicago (1990), 196 Ill. App. 3d 838, 850, 554 N.E.2d 1027, 1034-35.) A petition for fees must present the court with detailed records containing facts and computations upon which the charges are predicated specifying the services performed, by whom they were performed, the time expended and the hourly rate charged. (Mercado v. Calumet Federal Savings & Loan Ass’n (1990), 196 Ill. App. 3d 483, 493, 554 N.E.2d 305, 312.) Once presented with this information, the trial court should consider a variety of other factors, including the skill and standing of the attorneys employed, the nature of the case, the novelty and difficulty of the issues involved, the degree of responsibility required, the usual and customary charge for the same or similar services in the community, and whether there is a reasonable connection between the fees charged and the litigation. (Blankenship v. Dialist International Corp. (1991), 209 Ill. App. 3d 920, 927, 568 N.E.2d 503, 507-08.) Once the trial court makes a determination as to the reasonableness of attorney fees and related costs, that determination will not be disturbed absent an abuse of discretion. Johns v. Klecan (1990), 198 Ill. App. 3d 1013,1018-19, 556 N.E.2d 689, 692.

Our review of the record reveals that Harris Bank’s fee petition is adequately specific to support the trial court’s award of attorney fees and related costs. Harris Bank’s fee petition, accompanied by detailed records maintained during the course of the litigation, provides a full and particular accounting of all work completed on the matter, including a concise explanation of the nature of the task and parties involved, the attorneys working on the matter, the amount of time expended, and the hourly rate charged. In addition, the related costs are broken down into various subcategories, including photocopying, word processing, messenger service fees, filing fees, binding fees, title report fees and process serving fees. Recent cases which have ruled that the petition for attorney fees was inadequate are all distinguishable from the present case. (See Mars v. Priester (1990), 205 Ill. App. 3d 1060, 563 N.E.2d 977; Mercado v. Calumet Federal Savings & Loan Ass’n (1990), 196 Ill. App. 3d 483, 554 N.E.2d 305.) We, therefore, conclude that Harris Bank’s fee petition is sufficient to support the trial court’s award of attorney fees and related costs.

Koeckritz and Koeckritz, Inc., next contend that the trial court failed to make a proper evidentiary determination of the reasonableness of Harris Bank’s fee petition. We disagree.

At the hearing on Harris Bank’s fee petition, Harris Bank’s counsel, Michael Benz of Chapman & Cutler, stated that he personally had expended all but 7.7 hours sought in the petition and that he would be willing to answer any questions about the legal services performed on the matter. Koeckritz and Koeckritz, Inc.’s counsel, Ashcraft & Ashcraft (Ashcraft), argued that Harris Bank failed to meet its burden of reasonableness in its petition, that Harris Bank failed to provide the court with sufficient information upon which to make a determination as to the reasonableness of the petition, and that the amount of fees sought in the petition was unreasonable. Ashcraft, however, failed to present any affidavits or witnesses to support their argument that the fees sought in the petition were excessive, duplicative, or unreasonable, or any evidence about what a reasonable legal fee should be for this note default and mortgage foreclosure action. In its ruling, the trial court stated:

“As I indicated when we commenced, I have had the opportunity to view the motion for fees, the response, and the reply.
The motion for fees supplies the Court with a detailed analysis of the time spent, the assignment performed, and who did the various — who did the work.
I am satisfied that this complaint — this analysis, this break out of fees, is fair, reasonable, and does sufficiently inform both the Court and opposing counsel as to exactly what it is that [Harris Bank’s] attorneys were doing when they are billing various and sundry hours on given days.
This Court I think can take judicial notice that the firm of Chapman & Cutler is a well-regarded law firm on the street. Its attorneys are frequently in Chancery.
I have had frequent occasion to have cases with Chapman & Cutler. I am not certain I have had cases with the attorneys assigned to this case, but I am satisfied that the rate upon which Chapman & Cutler bills their efforts is a reasonable rate given the realities of legal fees on the street today.
For all of these reasons, I find that the petition is adequate and sufficient. For that reason, the petition is granted.”

Our review of the record reveals that both parties were afforded the opportunity to argue and present evidence in support of their positions. Any failure to elicit testimony at the hearing, including the failure to present countervailing evidence, was not due to an error of the trial court.

We acknowledge that the trial court improperly took judicial notice that Chapman & Cutler is a well-regarded law firm in Chicago. A court may take judicial notice of matters of common knowledge, or of facts which, while not generally known, are easily verifiable. (See Roberts v. Sisters of St. Francis Health Services, Inc. (1990), 198 Ill. App. 3d 891, 901, 556 N.E.2d 662, 669; Murdy v. Edgar (1984), 103 Ill. 2d 384, 394, 469 N.E.2d 1085, 1090.) While it may be true that Chapman & Cutler is a well-regarded law firm in Chicago, it is not a matter upon which judicial notice can be taken.

The trial court, however, may base its determination of the skill and standing of the attorney performing legal services on personal observations of the attorney in the underlying matter and its experience with other attorneys of the law firm. (See Kaiser, 164 Ill. App. 3d at 989, 518 N.E.2d at 431; In re Estate of Settle (1981), 97 Ill. App. 3d 552, 555-56, 422 N.E.2d 1008, 1011.) In the present case, the trial court was able to observe and assess the quality and nature of the legal services rendered by Benz in the underlying matter. It is plain that the trial court’s reference to judicial notice was merely a comment about the standing of Chapman & Cutler in the legal community rather than a basis for its ruling. We, therefore, conclude that the trial court made a proper evidentiary determination of the reasonableness of Harris Bank’s fee petition.

Koeckritz and Koeckritz, Inc., next argue that the trial court abused its discretion when it ruled that the award of attorney fees totalling $17,080 was reasonable.

Koeckritz and Koeckritz, Inc., contend that the attorney fees awarded by the trial court are excessive in light of the extremely short duration of the underlying action and because the issues involved in the matter were not difficult or complex. While it is true that the duration of the lawsuit spanned less than three months, Koeckritz and Koeckritz, Inc.’s characterization of the matter as merely a simple mortgage foreclosure and breach of contract action is incorrect. The underlying matter involved the foreclosure of a mortgage issued pursuant to a $1.25 million industrial development revenue bond transaction and recovery for the breach of a demand note, promissory note and a guaranty of repayment agreement. Accordingly, Koeckritz and Koeckritz, Inc.’s contention is without merit.

Koeckritz and Koeckritz, Inc., next contend that various entries contained in the fee petition are unreasonable and should have been disallowed by the trial court because the legal services performed in those entries were unnecessary, duplicative or the result of inefficient work efforts.

In the hearing, Ashcraft had ample opportunity to cross-examine Benz and to present countervailing evidence to prove that Harris Bank spent an unreasonable amount of time on legal research and for revision of the original complaint. We will not provide a de novo review of the petition to allow Ashcraft a second opportunity to disprove the reasonableness of the fee petition. Our review will be confined to determining whether the trial court abused its discretion when it ruled that the award of attorney fees was reasonable.

Koeckritz and Koeckritz, Inc., contend that legal services performed for the preparation of an amended complaint that was completed but not filed before the case was settled are unreasonable and should have been disallowed by the trial court. Koeckritz and Koeckritz, Inc., argue that the trial court should have made its determination of reasonableness in hindsight rather than at the time the services were performed in light of the dismissal of the underlying matter. The test for determining the reasonableness of attorney fees incurred in a matter must be whether a reasonable attorney, based on the totality of the facts and circumstances known and available to him, should have performed the legal services at the time the services were performed in order to discharge his ethical obligations under the Illinois Code of Professional Responsibility. Our review of the record reveals that there are no facts to indicate that a reasonable attorney would not have prepared the amended complaint in this matter. Accordingly, Koeckritz and Koeckritz Inc.’s contention is without merit.

Koeckritz and Koeckritz, Inc., argue that the entries in the petition labelled “attention to delivery, attention to organization of file, attention to binding and personally attend to filing of complaint” are unreasonable and should have been disallowed by the trial court on the basis that Benz’s personal attention to these matters resulted in the inefficient use of an attorney’s time and efforts. The fee petition clearly shows that Benz did not personally deliver these letters, bind the documents or file the complaint. Rather, the record demonstrates that Benz was merely discharging his ethical obligations by acting in a supervisory capacity over these tasks as required by the Illinois Code of Professional Responsibility. 134 Ill. 2d Canon 3; R. 3 — 101.

Finally, Koeckritz and Koeckritz, Inc., contend that several entries involving interoffice conferences, memoranda, and review of work product with the supervising partners are duplicative and should have been disallowed. The only entry cited by Koeckritz and Koeckritz, Inc., to illustrate this duplication, however, involved a 12-minute conference between Benz and his supervising partner for review of a court hearing memorandum. We cannot conclude that this entry involved an unreasonable duplication of attorney services.

The trial court is in a much better situation, based on its familiarity with this action and other foreclosure and breach of contract actions, to determine the reasonableness of the fee petition here. Based on the record before us, we are unable to conclude that the trial court abused its discretion when it ruled that the award of attorney fees totalling $17,080 was reasonable.

We next consider the costs totalling $3,379.85. In Kaiser (164 Ill. App. 3d at 989, 518 N.E.2d at 431), the court held that ordinary office expenses, including photocopying, check processing, legal newspaper subscriptions, telephone and delivery services and other similar expenses, are general overhead office expenses which are incorporated into the hourly attorney fee charged to the client and, accordingly, cannot be separately itemized and charged as costs in an action for attorney fees. We agree with the Kaiser court that these overhead expenses cannot be separately itemized and charged to a party in a petition for attorney fees and costs. We, therefore, conclude that Harris Bank should not recover the costs of photocopying, word processing, telecopier and computer research (i.e., Westlaw) charges it sought in its petition for attorney fees and costs. We do, however, agree that expenses Harris Bank incurred or paid to third-parties for velobinding, messenger service fees, filing fees, special process server fees, and title report fees are recoverable costs. Thus, the order awarding costs should be modified.

Finally, Harris Bank contends that it is entitled to attorney fees and costs incurred in this appeal. After reviewing the record and the merits of this appeal, we conclude that plaintiff is not entitled to attorney fees and costs incurred in this appeal, except those costs that are allowed to be taxed by supreme court rule for appeals generally.

Accordingly, the judgment of the circuit court is affirmed in part, reversed in part, and remanded for the entry of such orders as the trial court may deem proper in accordance with what is stated herein.

Affirmed in part; reversed in part and remanded.

TULLY, J., concurs.

PRESIDING JUSTICE GREIMAN,

dissenting:

The majority finds that Harris Bank’s fee petition is sufficiently specific to support the trial court’s award of attorney fees and further reaches the conclusion that the trial court made a proper evidentiary determination of the reasonableness of the fee petition.

I believe that Harris Bank’s fee petition is insufficient and thus a determination of the reasonableness of the fees requested could not properly be reached.

A fee petition “must specify the services performed, by whom they were performed, the time expended thereon and the hourly rate charged therefor.” (Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 984, 518 N.E.2d 424, citing Fiorito v. Jones (1978), 72 Ill. 2d 73, 377 N.E.2d 1019, and Ealy v. Peddy (1985), 138 Ill. App. 3d 397, 485 N.E.2d 1182.) In a case involving legal fees accrued in a dissolution of marriage proceeding, the Ealy court held that the fee petitioners “should be required to produce detailed facts and computations upon which the claimed fees are predicated.” (Ealy, 138 Ill. App. 3d at 400.) Referring to an attorney prosecuting a class action case, the Illinois Supreme Court found that “[bjecause of the importance of the time element, it is incumbent upon the attorney to keep detailed time records during the course of the litigation.” Fiorito, 72 Ill. 2d at 88.

In Kaiser, where the defendant lessor sought costs and attorney fees from the plaintiff lessee pursuant to a provision in their commercial lease agreement, the court disallowed a portion of the attorney fees because the time records were too vague and general. Kaiser, 164 Ill. App. 3d at 986.

This court specifically recognized that under the rule established in Kaiser “no recovery of reasonable hourly fees is allowed pursuant to a contract unless the attorneys present detailed time records.” (Johns v. Klecan (1990), 198 Ill. App. 3d 1013, 1019, 556 N.E.2d 689.) In Johns, this court expressly found that contingent fee attorneys are not required to account for their time with the same specificity and exactitude of hourly fee attorneys. (Johns, 198 Ill. App. 3d at 1019.) The Johns case concerned a personal injury action where attorneys were hired pursuant to a contingency fee contract. Accordingly, in Johns, we found that Kaiser was “inapposite because it did not involve either a contingent fee arrangement or a request for a quantum meruit recovery of fees in a contingent fee setting.” (Johns, 198 Ill. App. 3d at 1023.) Johns specifically held that an attorney working on a contingency basis is not required to present evidence as detailed as that required in Kaiser. Johns, 198 Ill. App. 3d at 1024.

Consequently, I believe that the contingency fee cases cited by the majority (Blankenship v. Dialist International Corp. (1991), 209 Ill. App. 3d 920, 568 N.E.2d 503 (the trial court did not abuse its discretion in awarding the contingency fee amount as reasonable attorney fees); Johns, 198 Ill. App. 3d 1013, 556 N.E.2d 689) are inapposite. Instead, the more exacting Kaiser standard of proof applies in the present case because the fee petitioners seek an award pursuant to an attorney fee provision in loan and guaranty agreements executed by the parties.

Applying the Kaiser standard, this court denied attorney fees and costs which were based on a provision in a construction contract when the plaintiff failed to provide an adequate basis in his petition on which to predicate a fee award. (Mars v. Priester (1990), 205 Ill. App. 3d 1060, 563 N.E.2d 977.) In Mars, this court found the fee petition inadequate because it aggregated all the work performed within a given month into a single hourly total for that month and reasoned that “Kaiser held that it is impossible to determine exactly what amount of time was expended on each task when the time for all work performed by an attorney on a given day has been aggregated into a single hourly total for that day.” Mars, 205 Ill. App. 3d at 1065.

The case at bar presents the same defect as stated in Mars, i.e., aggregate amounts of time listed for an attorney. The itemized bill submitted by Harris Bank covers a five-month period from February to June 1990. The bill contains numerous entries which combine multiple tasks into a single time total for one day.

For example, on March 15, 1990, the entry provides the name of counsel and indicates a draft of the complaint was completed, a conference regarding litigation strategy and another conference in connection with payments were held, and a memorandum for other attorneys was prepared. On that date there is a notation of 5.8 hours having been spent with no breakdown between the four items noted.

Similar combinations of services performed in 1990 are set out as follows: three hours on March 7, March 9, March 13, March 20, and April 23; 2.5 hours on March 2, March 6, March 19, and April 24; 4.3 hours on April 25; and 4.5 hours on March 12.

On March 27, 1990, there is an item which suggests that the attorney spent seven hours to “finalize verified complaint,” “attention to binding of same,” “conferences,” and “research.” Certainly a defendant who is called upon to pay the attorney fees of another is entitled to know how much time was expended on “finalizing the complaint” or “attention to binding of same.”

On March 28, 1990, counsel notes that he spent five hours to “personally attend to filing of complaint, Lis Pendens and accompanying documents; conference with court clerk re: motion for appointment of special process server.”

Therefore, on March 28, 1990, counsel picked up the documents, carried them from 111 West Monroe Street in Chicago, the offices of Chapman & Cutler, to the Daley Center, where the court clerk’s office is located, stood in line and filed the complaint. Perhaps he was then required to go to the recorder’s office which is located in the Cook County building across the street from the Daley Center and file the lis pendens notice.

Thereafter, it appears he had a conference with the court clerk concerning the appointment of a special process server. It would seem appropriate that a defendant ought to be told whether counsel spent most of his five hours walking the two blocks from Monroe Street to Washington Street in Chicago or sitting with a court clerk to discuss a perfunctory motion for the appointment of a special process server.

The actual time spent on each task cannot be determined. Such entries do not satisfy the standard of proof enunciated in Kaiser and Mars.

Without sufficiently detailed data, the reasonableness of the requested fees cannot be ascertained. The burden of providing the trial court with sufficient evidence of the reasonableness of the fees always rests with the party seeking an award of attorney fees. Mars, 205 Ill. App. 3d at 1064; Corkill Electric Co. v. City of Chicago (1990), 196 Ill. App. 3d 838, 554 N.E.2d 1027 (the complaining party waived any claim that the fee award was unreasonable by failing to object).

Moreover, reasonableness of a charge cannot be determined on the basis of conjecture or on the opinion or conclusions of the attorney seeking fees. Kaiser, 164 Ill. App. 3d at 984.

To determine the reasonableness of attorney fees, a thorough and conscientious hearing must be conducted. “Without a full, complete and detailed hearing on this matter [the reasonableness of a fee award], and without a ruling on each billing entry, taking into careful consideration the elements delineated in Kaiser and keeping in mind that the plaintiff is the burdened party, there can be no way of determining what a reasonable fee might be in this case.” Fitzgerald v. Lake Shore Animal Hospital, Inc. (1989), 183 Ill. App. 3d 655, 662, 539 N.E.2d 311 (the cause was remanded for another hearing on the plaintiff’s petition for attorney fees).

For these reasons, I would return this matter to the trial court to allow plaintiff to amend its petition and for a new hearing.


source: Caselaw Access Project

author: PRESIDING JUSTICE JIGANTI

license: Public Domain

text:
    BRENDA HAYES, Adm’r of the Estate of Vincent Hayes, Deceased, Plaintiff-Appellant, v. THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—90—1964
    Opinion filed June 4,1992.

      Law Offices of Terrence K. Hegarty & Associates, Ltd., of Chicago (Terrence K. Hegarty and Timothy W. Heath, of counsel), for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Mardell Nereim, Assistant Corporation Counsel, of counsel), for appellees.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

Brenda Hayes, the plaintiff and administrator of the estate of Vincent Hayes, brought a Federal civil rights action against the defendants, the City of Chicago (City) and two of its police officers, pursuant to 42 U.S.C. §1983 (1988). In her complaint, Hayes alleged the defendants deprived Vincent Hayes of liberty without due process of law when they found Hayes in an inebriated condition, placed him in the rear compartment of an unsafe squadrol to transport him to a hospital, and caused him serious injuries which resulted in the paralysis of his entire body from the neck down. The defendants moved for summary judgment claiming that the evidence of the defendants’ conduct was insufficient, as a matter of law, to establish a civil rights claim. The court granted the summary judgment motion from which the plaintiff now appeals.

According to the deposition of Officer Cisco, on January 1, 1982, police officers Wilczak and Cisco responded to a call reporting a “man down” at 424 West 67th Street in Chicago. The officers found Hayes seated on the stair landing with his back against the wall. The paramedics told the officers that Hayes was intoxicated. The officers decided to transport Hayes to a detoxification center. They asked Hayes to get up because he could not stay there. Hayes got up and walked down the stairs assisted by the police officers because he was swaying and unsteady. The officers assisted Hayes to the squadrol, where he ultimately sat on the right-side bench, slouched and leaning against the rear wall. The officers rode in the cab of the squadrol with Cisco on the passenger side and Wilczak driving. The officers had not placed Hayes under arrest, as they had no knowledge that he had committed any crime.

The rear of the squadrol where Hayes was riding was dark, except for some natural light coming through a small window on the rear door. Hayes was seated on a metal bench with no seat or shoulder restraints.

The officers drove the squadrol to the detoxification center at Wabash and 17th Street. According to Cisco’s deposition, there was nothing unusual about the ride. They were travelling no faster than the posted 30-mile-an-hour speed limit, and the entire trip took approximately 10 to 12 minutes.

When they arrived at the detoxification center, the officers opened the rear door of the squadrol and Hayes was seated in approximately the same position on the bench. An employee of the detoxification center refused to admit Hayes when he would not get out of the squadrol on his own. The officers then proceeded to take Hayes to the emergency room at Mercy Hospital. Upon arrival, the officers opened the door to the rear of the squadrol where Hayes was seated in approximately the same position. Wilczak obtained a wheelchair from inside the hospital to transport Hayes. The officers told Hayes that he had to get out of the squadrol, assisted him down the stairs of the squadrol, put him into the wheelchair, and pushed him into the emergency room. According to the deposition of the emergency room nurse, she first observed Hayes in the emergency room on a police department stretcher. Following their examination of Hayes and a reading of his X rays, Hayes was diagnosed as a quadriplegic resulting from a fracture and dislocation of his C4 and C5 vertebrae.

The plaintiff filed an action against the defendants pursuant to 42 U.S.C. §1983 (1988). The complaint alleged that the City maintained squadrols which were inherently unsafe because of design defects. Specifically, the squadrol interior rear compartment has no safety belts or restraints, there are no cushioning materials to reduce the force of the passengers impacting the interior compartment, there is nothing in the rear compartment to hold on to, there is very little light, and the squadrol contains no means by which a passenger can maintain his balance and seated position. The complaint further alleged that the City was aware of the defects because several individuals had been injured in the squadrol prior to Hayes’ injury. The complaint also claimed that the police officers were aware that the squadrol was unsafe. The plaintiff further alleged that four other individuals had filed suit against the City for injuries which they had sustained while being transported in the rear compartment of a squadrol.

The defendants moved for summary judgment claiming that the evidence of the defendants’ conduct was insufficient to sustain a civil rights claim. The defendants attached the affidavit of the commander of the motor maintenance division of the Chicago police department stating that from 1984 through 1987, 465 squadrols travelled an average of approximately 34,756 miles per squadrol.

A motion for summary judgment should be granted if the pleadings, depositions, admissions and affidavits on file reveal that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005.) Where the facts are undisputed, if a fair-minded person may draw different inferences from those facts, summary judgment cannot be granted. (Consolino v. Thompson (1984), 127 Ill. App. 3d 31, 468 N.E.2d 422.) The trial court granted the defendants’ motion and found that the plaintiff’s evidence was insufficient to meet the constitutional standard required for a civil rights action.

Hayes first contends on appeal that the trial judge applied the wrong legal standard in determining whether the defendants’ conduct was sufficiently egregious to constitute a constitutional claim. The court essentially held that the proper standard to apply in cases involving substantive due process claims is whether the defendant’s conduct “shocks the conscience.” Hayes argues that the court should have applied a lesser standard of “recklessness,” and because the facts demonstrate that the defendants acted recklessly toward Hayes, they were not entitled to summary judgment as a matter of law.

Hayes urges this court to rely on the legal standard of “reckless behavior” set forth in Archie v. City of Racine (7th Cir. 1988), 847 F.2d 1211 (en banc), cert. denied (1989), 489 U.S. 1065, 103 L. Ed. 2d 809, 109 S. Ct. 1338, and adopted by the court in Seibring v. Par-cell’s Inc. (1988), 178 Ill. App. 3d 62, 532 N.E.2d 1335. The defendants, on the other hand, contend that the trial court properly relied upon Wilkins v. May (7th Cir. 1989), 872 F.2d 190, cert. denied (1990), 493 U.S. 1026, 107 L. Ed. 2d 752, 110 S. Ct. 733, and Edwards v. May (N.D. Ill. 1989), 718 F. Supp. 1379, in concluding that the proper standard to apply in cases involving substantive due process claims is whether the conduct “shocks the conscience.”

Much has been written on the subject of what constitutes the duty and standard of behavior that is imposed by the Constitution on the State and its officials. The due process clause of the fourteenth amendment was intended to prevent government “from abusing [its] power, or employing it as an instrument of oppression.” (Davidson v. Cannon (1986), 474 U.S. 344, 348, 88 L. Ed. 2d 677, 682, 106 S. Ct. 668, 670.) Its purpose is to secure the individual from the arbitrary exercise of the powers of government. (Parratt v. Taylor (1981), 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908.) The Supreme Court has, however, also made consistently clear that the due process clause “does not transform every tort committed by a state actor into a constitutional violation.” DeShaney v. Winnebago County Department of Social Services (1989), 489 U.S. 189, 202, 103 L. Ed. 2d 249, 263, 109 S. Ct. 998, 1007, citing Daniels v. Williams (1986), 474 U.S. 327, 335-36, 88 L. Ed. 2d 662, 671,106 S. Ct. 662, 667.

We believe that whether the standard of conduct that is applied to invoke constitutional liability is described as “reckless” or as “shockpng] the conscience” is not germane to our decision in the instant case. The plaintiff relies primarily on Archie v. City of Racine (7th Cir. 1988), 847 F.2d 1211 (en banc), cert. denied (1989), 489 U.S. 1065, 103 L. Ed. 2d 809, 109 S. Ct. 1338. In Archie, the seventh circuit held that only intentional or reckless conduct violates the due process clause. (Archie, 847 F.2d at 1219.) The court described reckless conduct as conduct that “reflects complete indifference to risk — when the actor does not care whether the other person lives or dies, despite knowing that there is a significant risk of death.” (Archie, 847 F.2d at 1219.) The City and the officers can be said to have deprived Hayes of his life without due process only if they intended for him to die or suffer grievously or if they knew of a significant risk that Hayes would die or suffer grievously, but were indifferent to that risk. See Salazar v. City of Chicago (7th Cir. 1991), 940 F.2d 233.

The plaintiff claims that the defendants acted with clear indifference to the danger in which they were placing Hayes. The plaintiff points to evidence that the police officers knew that Hayes was drunk and placed Hayes in the rear of the squadrol, slouched on one of the benches and leaning against the side and rear walls. The officers made no attempt to restrain Hayes in his seat and there were no restraints in the squadrol itself. The officers made no attempt to cushion any of the exposed metal upon which Hayes could strike himself and there was nothing for Hayes to hold on to during the ride. The plaintiff further points to the poor lighting in the rear of the squadrol and the fact that the officers did not ride in the rear with Hayes. Finally, the plaintiff points to the fact that the defendants do not dispute that there were at least two or three prior cases which involved injuries to “incapacitated” individuals as a result of squadrol rides.

The defendants’ affidavit illustrates that City squadrols travel approximately four million miles a year throughout the City and that each squadrol travels an average of 34,756 miles per year. We view this evidence in conjunction with the plaintiff’s evidence of two to three other squadrol injuries, the depositions describing the sequence of events, and the plaintiff’s allegations of the defendants’ indifference to the welfare of Hayes. We also consider the fact that squadrols are commonly used by the City to transport intoxicated individuals to hospitals and detoxification centers. There is nothing in the record to indicate that the squadrol which was used to transport Hayes was in any way different from any of the other squadrols which the City maintains.

In light of all of the evidence in the record, we find that the plaintiff failed to establish that the defendants’ conduct rose to the magnitude of a constitutional violation. (Consolino v. Thompson (1984), 127 Ill. App. 3d 31, 468 N.E.2d 422.) While the plaintiff’s allegations may support a claim for negligence, neither negligence nor gross negligence is a sufficient basis for constitutional liability. (Archie v. City of Racine (7th Cir. 1988), 847 F.2d 1211 (en banc).) Thus, the defendants’ motion for summary judgment was properly granted.

The defendants also argue on appeal that the due process clause cannot be invoked in a situation such as this one because Hayes was not held in custody against his will. The defendants point to DeShaney v. Winnebago County Department of Social Services (1989), 489 U.S. 189, 103 L. Ed. 2d 249, 109 S. Ct. 998, for the proposition that the government only has a duty to protect an individual when the State has taken a person into custody and held him there against his will. The defendants contend that since Hayes voluntarily accompanied the police officers into the squadrol, he was not held in custody against his will, and the due process clause is not implicated.

The Court in DeShaney stated:

“The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf ***. In the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf-through incarceration, institutionalization, or other similar restraint of personal liberty — which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.” 489 U.S. at 200, 103 L. Ed. 2d at 262, 109 S. Ct. at 1005-06.

In the case at bar, Hayes was neither coerced nor persuaded by the officers to accept their protection. Hayes was never placed under arrest and walked to the squadrol assisted by the officers. Hayes became voluntarily intoxicated, and it cannot be said that it was the State that imposed upon his freedom to act on his own behalf. While we have already established that summary judgment was proper, it can also be said that Hayes was not sufficiently deprived of his liberty to trigger the protections of the due process clause.

The plaintiff’s final contention is that the trial court abused its discretion when it denied her leave to amend her complaint to add common-law tort claims against the defendants. The plaintiff’s original complaint asserted common-law tort claims against the defendants, but the plaintiff abandoned those claims early in the litigation process pursuing only the civil rights action. The plaintiff filed several amended complaints and none of them reinstated the common-law claims. The plaintiff requested leave to file an amended complaint after the court granted the defendants’ summary judgment motion, but the court denied the motion.

A trial court has authority to permit amendments to pleadings when it is just and reasonable and when it will further the ends of justice. Siebert v. Continental Oil Co. (1987), 161 Ill. App. 3d 891, 515 N.E.2d 728.

In the case at bar, the proposed amendment to assert common-law tort claims against the defendants cures the defects in the pleadings. The defendants would not sustain prejudice or surprise as a result of the amended pleading since the evidence to support either the civil rights action or the common-law claim is essentially the same. Little, if any, additional discovery would be required if the amendment were allowed. The plaintiff has also offered sufficient justification for not pursuing her alternative common-law theory of recovery earlier in the proceedings. Moreover, despite the fact that the plaintiff had previous opportunities to amend the complaint, the only just and reasonable approach is to allow the plaintiff to amend.

Thus, we conclude the trial court abused its discretion when it denied the plaintiff’s motion for leave to file an amended complaint. We accordingly remand for further proceedings not inconsistent with this opinion.

Affirmed in part; reversed in part.

JOHNSON and McMORROW, JJ., concur.


author: JUSTICE GORDON

text:
    FREDERICO BAYLAENDER, as Special Adm’r of the Estate of Maria Baylaender, Deceased, et al., Plaintiffs-Appellants, v. MARGARET METHOD, as Special Adm’r of the Estate of Harold Method, Defendant-Appellee.
    First District (5th Division)
    No. 1—89—3378
    Opinion filed June 5,1992.
    Rehearing denied July 2,1992.

      James H. Canel, Ltd., of Chicago, for appellants.
    Pretzel & Stouffer, Chartered, of Chicago, for appellee.
   JUSTICE GORDON

delivered the opinion of the court:

In this survival and wrongful death action brought on behalf of the estate of Maria Baylaender and for the benefit of her husband, Frederico Baylaender, and children, Carla, Richard and Chiara, it is alleged that Maria died as a result of Dr. Harold Method’s failure to diagnose her breast cancer in December 1977 or May 1978. Plaintiff appeals from a jury verdict in favor of the defendant. For the reasons set forth below, we reverse and remand for a new trial.

Facts

On May 30, 1980, Maria Baylaender and Frederico Baylaender filed a two-count complaint against Dr. Harold Method. In count I, Maria Baylaender alleged negligence by Dr. Method in failing to diagnose or treat her cancer during December 1977 and May 1978 examinations. Count II alleged loss of consortium by Frederico Baylaender as a result of Dr. Method’s negligence. Following Mrs. Baylaender’s death in December of 1980, the complaint was amended to assert a wrongful death action on behalf of Frederico, Carla, Richard and Chiara Baylaender, and a survival action on behalf of her estate.

Although Dr. Method died during the pendency of this action and his wife, Margaret Method, as administrator of his estate was substituted as defendant, in this opinion “defendant” shall refer to Dr. Method.

Prior to trial, plaintiff filed a motion in limine seeking to bar the testimony of Dr. Harry Southwick, the physician who treated Maria subsequent to Dr. Method’s alleged negligence, pursuant to Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952. Plaintiff contended that Dr. Southwick violated the physician-patient privilege when he discussed Maria Baylaender with an attorney assigned to represent him by his insurance carrier although he was not sued. The same attorney was subsequently assigned by the carrier to represent the defendant, Dr. Method. Both Dr. Southwick and Dr. Method were insured by the same insurer, Illinois State Medical Society. The motion was denied.

The trial began with the reading of portions of Dr. Method’s discovery deposition. At that deposition, Dr. Method was represented by the same attorney who had previously represented Dr. Southwick. Dr. Method testified that his only record of Maria Baylaender’s visit on December 6, 1977, was a note in his office record: “CC lump in breast. See letter to Drs. Gerbie & Raimondi.”

At trial, the plaintiff, Dr. Frederico Baylaender, testified that on December 1, 1977, while making love to his wife Maria, he felt a small, hard, pea-sized lump in the upper outer quadrant of her left breast. Because of his concern, he directed Maria to have a xeromammography the following day at Louis A. Weiss Memorial Hospital. Dr. Baylaender, a radiologist at Weiss, read the mammograms and found them to be negative.

Realizing that mammograms may yield false negative results, Baylaender called Dr. Albert Gerbie, a colleague and Maria’s gynecologist, and asked him to see Maria that evening. Dr. Gerbie agreed, and examined Maria after his office hours on the evening of December 2, 1977. Dr. Gerbie told the Baylaenders that they should see a surgeon, and suggested the defendant, Dr. Harold Method.

On December 6, 1977, Dr. Baylaender took Maria to see Dr. Method. After examining Maria, Dr. Method told Dr. Baylaender “Don’t worry, this is fibrocystic disease. Come back in six months.” According to Dr. Baylaender, he specifically asked Dr. Method about doing a biopsy of the lump and was assured that the lump was benign.

Continuing his testimony, Dr. Baylaender said that from December 1977 through May 1978, the mass remained in the same location in Maria’s breast. It grew larger, until by the end of April it was the size of a walnut. Maria also told her husband that the mass hurt.

On May 12, 1978, Maria went to see Dr. Method again. Following his examination, Dr. Method telephoned Dr. Baylaender and again assured him that Maria had fibrocystic disease, told him to stop worrying, and to have Maria return in six months.

Dr. Baylaender testified that he was convinced that he and Dr. Method were not talking about the same mass, as he believed it was impossible for Dr. Method to fail to locate a hard mass the size of a walnut. Therefore, Dr. Baylaender decided to consult with another surgeon who specialized in breast cancer. An appointment was made with Dr. Harry Southwick for May 22, 1978. According to Dr. Baylaender, there was no appreciable change in the mass in Maria’s left breast between May 12 when she saw Dr. Method and May 22 when she saw Dr. Southwick.

After examining Maria, Dr. Southwick scheduled a biopsy for June 12, 1978. The biopsy, performed at Presbyterian-St. Luke’s Hospital, indicated cancer, and a mastectomy was performed three days later. Cancer was also found in 12 of 24 lymph nodes removed. In spite of the mastectomy and several courses of chemotherapy, Maria died on December 3, 1980, survived by her husband and three children. The cause of death was cancer which had metastasized to her liver, lung, and abdomen.

The trial continued with the reading of the evidence deposition of Dr. Daniel Hizer, who as a medical student took Maria Baylaender’s medical history on her admittance to Presbyterian-St. Luke’s Hospital in June 1978. Mrs. Baylaender told him she first discovered a mass in her left breast six months earlier. At that time, the mass was “like a cherry pit.” In the last two to three months the mass had grown two to three times its original size and had become hard. The mass also had become painful. Dr. Hizer also examined Mrs. Baylaender and recorded finding an 8- to 10-centimeter hard mass in the left breast extending into the upper outer quadrant.

The evidence deposition of Dr. Richard Kaiserman was also read. As an intern he also interviewed Mrs. Baylaender when she was admitted to the hospital. He concurred in the history as recorded by Dr. Hizer. His physical examination noted a 6- by 8-centi-meter irregular mass in the upper outer quadrant of the left breast.

Dr. Tilden Everson testified as an expert for the plaintiff. He opined that Dr. Method deviated from the standard of care on December 6, 1977, and on May 12, 1978, and that those deviations contributed to Maria Baylaender’s death. He stated that in his opinion the defendant was negligent in not performing a biopsy on the mass Maria Baylaender complained of at the time of her initial visit in December 1977 and again in May 1978. Dr. Everson said that when a surgeon detects a discrete solitary mass, the standard of care requires that a biopsy be done. Without a biopsy, the possibility of breast cancer cannot be excluded and there was no basis to assure the patient or her husband that there was no malignancy.

Dr. Everson testified that in forming his opinion, he had reviewed defendant’s office records which indicated that on December 6, 1977, Maria’s chief complaint was a lump in the breast. In a letter which Dr. Method wrote to Dr. Gerbie regarding the December 6 examination, he referred to a “questionable mass or masses in the left breast.” There is no reference from the physical examination as charted by defendant to a mass in the upper outer quadrant of the left breast. To Dr. Everson this indicated that the defendant never palpated the mass in Maria Baylaender’s left breast. Based on Dr. Baylaender’s description and the history given by Maria Baylaender upon her admittance to the hospital, Dr. Everson was of the opinion that the mass was present when Maria saw the defendant on December 6, 1977, and that Dr. Method deviated from the standard of care by not subjecting the mass to a biopsy.

Dr. Everson then reviewed the defendant’s records of the May 12, 1978, visit. On that visit, Dr. Method noted Maria’s complaint as referring to the lateral quadrant of the left breast. His records included the following notation: “In the lateral quadrant of the left breast, one centimeter beyond the areola between 9:00 and 10:00 o’clock, there is a grapelike cluster of small tiny exquisitely tender cysts.” Dr. Everson noted that in the left breast the references to “lateral quadrant” and “between 9:00 and 10:00 o’clock” are inconsistent. Dr. Everson’s opinion was that the mass was present when Maria saw the defendant on May 12; that the defendant failed to palpate the mass; and that such failure was a deviation from the standard of care.

Based on the type of tumor discovered following the mastectomy, it was Dr. Everson’s opinion that had the cancer been diagnosed in December, Maria’s prognosis for survival was 85% to 90%. Had the defendant’s treatment conformed to the standard of care in May 1978, Maria Baylaender would not have developed metastatic disease.

On cross-examination, defense counsel asked Dr. Everson whether he had reviewed any literature in preparing his testimony. Dr. Everson indicated that he had reviewed Sabaston’s Textbook of Surgery and Schwartz’s Textbook of Surgery. Defense counsel then asked the witness about two other textbooks, specifically whether he considered them authoritative (which he did), had used them in teaching (which he had not), or had reviewed them in preparation for this case (which he had not). Questions were also asked about pamphlets produced by the American Cancer Society, the Journal of Cancer, and the Journal of the American Medical Association. Dr. Everson was generally familiar with the pamphlets and journals and considered them authoritative. Counsel also asked about several other reports on breast cancer and its treatment published by the American Cancer Society, and Dr. Everson stated he was not familiar with them. No questions were asked about any specific passages or content of the books or pamphlets.

At the conclusion of Dr. Everson’s testimony, counsel for the plaintiff moved to strike the cross-examination as it related to the textbooks and pamphlets. Counsel argued that it was improper cross-examination to ask an expert witness if he is familiar with a particular book, whether he considers it authoritative, without confronting the witness with inconsistencies for purposes of impeachment. The court denied the motion.

The next witness for the plaintiff was Dr. Albert Gerbie. He testified that when he first saw Maria Baylaender as a patient in August of 1977, he found that she had fibrocystic disease. Dr. Gerbie explained that this is a condition in which ducts within the breasts fill with fluid. He could feel small, little soft nodules in the breast. He also ordered a mammogram, which was negative.

Dr. Gerbie next saw Maria Baylaender in December 1977. Although he had no independent memory of advising her to see a surgeon, his records indicate that she was referred to Dr. Method.

Dr. Gerbie’s record of his May 12, 1978, examination with Maria indicated “breasts changed. *** Left breast cystic, especially upper outer quadrant. Conglomeration of cysts — firm—two centimeters.” Maria told Dr. Gerbie that she had an appointment with Dr. Method later that day. Had she not had that appointment, Dr. Gerbie testified that he would have advised her to see a surgeon.

On cross-examination, Dr. Gerbie stated that his records did not indicate that he found a hard, pea-sized nodule in December of 1977. Nor did his records show that he found a hard, walnut-sized mass in May of 1978.

Following Dr. Gerbie’s testimony, plaintiff rested his case.

Defendant’s first witness was Dr. Myles Cunningham. Dr. Cunningham expressed his expert opinion that the defendant met the standard of care in his treatment of Maria Baylaender in December 1977 and May 1978. According to Dr. Cunningham, the standard of care does not require a physician to biopsy every new nodule in the breast, especially in a patient such as Mrs. Baylaender with fibrecystic disease. He opined that Dr. Method’s letter to Dr. Gerbie in December of 1977 indicated that Dr. Method performed a careful, systematic examination. In Cunningham’s opinion, Dr. Method’s failure to biopsy the mass in December of 1977 and May of 1978 was a matter of judgment and not a deviation from the standard of care.

In forming his opinion, Dr. Cunningham had reviewed the records of the defendant, and also those of Drs. Gerbie and Southwick. He had also reviewed the depositions of the defendant and the mammograms of Maria Baylaender.

In his testimony, Dr. Cunningham referred to two diagrams. One was a hand-drawn diagram made by Dr. Method during his discovery deposition. This diagram showed two breasts, and Dr. Method had made notations on the diagram which purported to be his findings made during his examinations of Maria Baylaender. Also on the diagram was a notation written by Dr. Method’s attorney which stated “Nothing in medial or lateral quadrant.” The second diagram was identical to the first except that the handwritten notations of Dr. Method and of his attorney had been typed. Plaintiff had unsuccessfully sought to have these diagrams excluded.

Dr. Cunningham further testified that in his opinion Maria Baylaender’s prognosis was the same in 1977 as it was in 1978. Even had her cancer been diagnosed in December of 1977, she would have died at exactly the same time.

On cross-examination, Dr. Cunningham stated that in forming his opinions in this case, he reviewed the medical records of Dr. Method, including the diagrams prepared by Dr. Method during his discovery deposition at the direction of his attorney. In Dr. Cunningham’s opinion, those diagrams failed to indicate the presence of any lump in the upper outer quadrant of the left breast. Dr. Cunningham admitted that in rendering an opinion he did not ordinarily rely on diagrams prepared by a physician and his attorney in the course of litigation. Dr. Cunningham agreed that there was nothing in Dr. Method’s records that indicated that he “appreciated” what Maria had related to him, a complaint about a new dominant mass in the left breast. In addition, Dr. Cunningham conceded that a dominant hard mass should be biopsied, and that if there was such a mass and Dr. Method did not find it, that would be a deviation from the standard of care. However, it was his opinion that no such mass existed in December of 1977. Nor was there any indication in the records of Drs. Method, Southwick or Gerbie that they detected such a dominant hard mass in May of 1978.

The defendant’s evidence deposition, taken prior to his death, was read to the jury. He described his procedure for examining a patient, a procedure which he followed during his examination of Maria Baylaender. Referring to his office records and the letter he sent to Dr. Gerbie, Dr. Method testified that he first saw Maria Baylaender on December 6, 1977. His physical examination of Maria indicated no palpable masses in the right breast except for small, shot-sized nodules, and “similar findings in the left subareolar area, extending interiorly.”

In his testimony Dr. Method referred to a diagram marked “Breast Examination of December 6th, 1977,” which he had drawn at the request of his counsel during his earlier discovery deposition. As noted above in connection with Dr. Cunningham’s testimony, the diagram showed two breasts. At counsel’s request, Dr. Method had written on the diagram the “findings” which he had described in his oral testimony.

Dr. Method also testified that he saw Maria on May 12, 1978. At that time she reported pain in the upper outer quadrant of the left breast, a complaint different in Dr. Method’s mind from the one presented in December. Dr. Method testified that he found a grape-like cluster of tenderness in that quadrant, a different finding than that noted in his December examination of Maria. At his attorney’s request, a diagram was also made of the May 12, 1978, examination, and Dr. Method wrote his findings on that diagram as well.

Regarding the diagrams, Dr. Method admitted that they were not prepared as part of any office record, but were done at the time of his discovery deposition. In addition to Dr. Method’s own notations on the diagrams, there was the notation of his attorney stating “Nothing in medial or lateral quadrant.” Dr. Method’s attorney stated for the record that he had Dr. Method’s handwritten notations and his own handwritten notation typed on another version of the diagram.

When asked on cross-examination about the fact that the letter to Dr. Gerbie regarding the December examination made no mention of the lateral quadrant of the left breast, Dr. Method responded that it was his practice only to document positive findings and in December of 1977 he did not palpate a mass in the left breast.

The final witness was Dr. Harry Southwick. Prior to his testifying, plaintiff’s counsel renewed his earlier motion in limine to bar Dr. Southwick’s testimony. This motion was based on the fact that Dr. Southwick was a subsequent treating physician of Maria Baylaender, and he communicated with and discussed the case with an attorney, the same attorney later assigned to represent the defendant Dr. Method, outside the presence of the plaintiff and without plaintiff’s consent. The motion was again denied.

Dr. Southwick testified that he examined Maria Baylaender on May 22, 1978. He found that she had fibrocystic disease. In addition, there was one large area in the upper outer quadrant of the left breast that was “a little different from the breast tissue elsewhere.” According to Dr. Southwick, it did not feel like cancer, but based on the fact that it seemed different from the other lumpiness in the breasts, Dr. Southwick recommended a biopsy of her left breast. Notwithstanding his decision to biopsy, Dr. Southwick opined that Dr. Method’s decision not to perform a biopsy was within the standard of care.

On cross-examination, Dr. Southwick said that subsequent to his treatment of Maria Baylaender, an attorney representing Mrs. Baylaender contacted him and requested a copy of his records. Southwick testified that the Baylaenders’ attorney assured him that all he wanted to do was to discuss those records with him, and that he was not the focus of any litigation. Nevertheless, upon receipt of this request, Dr. Southwick contacted the Illinois State Medical Society.

Continuing his testimony, Dr. Southwick said that an attorney was assigned by the medical society to represent him. Dr. Southwick discussed Maria Baylaender and his care and treatment of her with this attorney, and the attorney was present when Dr. Southwick met with the Baylaenders’ attorney on May 7, 1979. Dr. Southwick made the following entry into his records regarding that meeting:

“A meeting was held this morning with the Baylaender’s [sic] attorney, *** and [the attorney assigned by the insurance carrier] as my legal representative. We discussed some of Dr. Methods [sic] notes and the description that I have of the lesion and the description he gave are quite a bit different. As I pointed out to [the Baylaenders’ attorney] this could be differences in phasiology [sic] but it is still a clinical judgment decision as to which nodule should be removed and which can be safely observed and I know of no hard and fast rule when presented with a nodule such as Mrs. Baylander [sic] had. I happened to be right.”

On redirect examination, this record was admitted over plaintiff’s objection.

In a deposition taken prior to trial, Dr. Southwick stated that he would not talk to any potential plaintiff’s attorney without first being sure he was represented by counsel also. In addition, Dr. Southwick believed the Illinois State Medical Society had “urged” or “instructed” its doctors to contact the society any time there was any contact with any plaintiffs’ lawyers. At the time of Dr. Southwick’s deposition, when it was clear that he was not a defendant, another attorney from a different law firm had been assigned by the insurance carrier to represent Dr. Southwick. However, the same carrier which covered Dr. Southwick also insured the defendant, and Dr. Method was represented at Dr. Southwick’s deposition by the firm originally assigned to represent Dr. Southwick.

Following denial of motions for directed verdicts by both parties, the jury returned a verdict for the defendant, and plaintiff appeals.

Opinion

Plaintiff raises five issues on appeal: (1) whether Dr. Southwick should have been barred from testifying because he violated his patient’s physician-patient privilege; (2) whether the court erred in admitting Dr. Southwick’s record of his meeting with his attorney and plaintiff’s attorney; (3) whether the court erred in admitting the diagrams and notations made by defendant and his attorney at defendant’s deposition; (4) whether defense counsel improperly utilized learned treatises in cross-examination of Dr. Everson, plaintiff’s expert; and (5) whether the testimony of defendant’s expert, Dr. Cunningham, was sufficient to create a triable issue of fact so as to support a verdict for the defendant.

Plaintiff argues that Dr. Southwick should have been barred from testifying because he violated Maria Baylaender’s physician-patient privilege when he, without her consent and prior to any suit being filed, discussed her care with an attorney appointed by his insurance carrier to represent him. This violation was exacerbated, plaintiff contends, when, after suit was filed, the insurer assigned another attorney to represent Dr. Southwick, and Dr. Southwick’s original attorney was assigned by the same insurance carrier to represent the defendant. In support, plaintiff relies on Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952, which held that ex parte conferences between defense counsel and a plaintiff’s treating physician were prohibited even after plaintiff filed suit for injury, given the underlying confidential and fiducial considerations that must control the physician-patient relationship.

Defendant, on the other hand, contends that nothing in Petrillo suggests that a doctor does not have the right to consult with counsel when his medical records are requested by an attorney investigating the feasibility of filing a medical malpractice suit even though suit has not yet been filed. Defendant urges that to extend the proscription of Petrillo to communications between a doctor and his own attorney prior to being sued would seriously compromise his ability to prepare his defense in the event of suit ultimately being filed against him.

In Petrillo, the court relied on the strong public policy favoring the confidentiality of the physician-patient relationship, and held even after suit for injuries is filed against a third party, ex parte discussions between plaintiff’s treating physicians who have themselves not been joined as defendants and defendant’s attorney were to be prohibited. Such discussions were in violation of both the physician’s duty of confidentiality and his fiduciary duty to his patient. These duties preclude the physician from disclosing confidential information about his patient to third parties without his patient’s express authorization other than through court-authorized discovery means. Petrillo, 148 Ill. App. 3d at 593.

While under the statute governing the physician-patient privilege (Ill. Rev. Stat. 1989, ch. 110, par. 8 — 802) the filing of plaintiff’s lawsuit constitutes implicit consent to disclosure by the plaintiff’s doctors of previously privileged medical information, under Petrillo and its progeny such consent is implied only as to information transmitted through court-authorized discovery. (Petrillo, 148 Ill. App. 3d at 603; Nastasi v. United Mine Workers of America Union Hospital (1991), 209 Il. App. 3d 830, 567 N.E.2d 1358; Mondelli v. Checker Taxi Co. (1990), 197 Ill. App. 3d 258, 554 N.E.2d 266; Ritter v. Rush-Presbyterian-St. Luke’s Medical Center (1988), 177 Ill. App. 3d 313, 532 N.E.2d 327.) Whether these same concerns and limitations which apply to ex parte discussions between the plaintiff’s nondefendant treating physicians and the defendant’s attorney also prohibit a treating physician from consulting his own attorney prior to being joined as a defendant in plaintiff’s action is the question which should bear our initial consideration.

Here, too, with respect to this question we must first look to the language of the statute governing the physician-patient privilege, which provides as follows:

“No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve such patient, except only *** (2) in actions, civil or criminal, against the physician for malpractice, *** (4) in all actions brought by or against the patient, his or her personal representative, a beneficiary under a policy of insurance, or the executor or administrator of his or her estate wherein the patient’s physical or mental condition is an issue ***.” (Ill. Rev. Stat. 1989, ch. 110, par. 8 — 802.)

The statute speaks of exceptions in “actions, civil or criminal” and “actions brought by or against the patient,” which if interpreted literally would seem to indicate that the exceptions are not applicable until a suit has been filed, at which time the patient impliedly consents to disclosure of relevant confidential information. (Petrillo, 148 Ill. App. 3d 581, 499 N.E.2d 952.) The question thus becomes whether there is an implied right of a physician to consult an attorney before being sued, notwithstanding the literal language of the statute, based upon an inherent right of the individual to have unfettered access to his or her own legal counsel to protect against any existent or potential legal risk. The fundamental value of facilitating access between a client and his attorney is expressed in the formulation and protection given to their communications under the attorney-client privilege. See generally 8 J. Wigmore, Evidence §2290 et seq. (McNaughton rev. ed. 1961) (modern view of attorney-client privilege based on desire to promote freedom of consultation with attorney); see also People ex rel. Hopf v. Burger (1975), 30 Ill. App. 3d 525, 332 N.E.2d 649 (attorney-client privilege grounded in policy favoring open communication between clients and attorneys, not dependent on pending litigation).

It may be argued that to permit such discussions before suit is filed could provide a loophole which could seriously erode the protections provided under Petrillo. Conceivably, a license to consult an attorney prior to suit being filed could provide a means to circumvent the impact of Petrillo by permitting a treating physician to consult with his own attorney and, of pragmatic necessity, his insurer, in purported anticipation of being made a party to a suit, with the result that his lawyer or carrier would then be able to share that information with defense counsel and other carriers on an informal basis.

However, the fear of such erosion is diluted by the fact that the treating physician has the means by which to control the sharing of any information by his attorney, or for that matter his carrier, through enforcement of the attorney-client privilege. The lawyer would be bound by the attorney-client privilege not to disclose without his client’s consent, and the physician would be bound by his fiduciary duty to his patient to withhold such consent. Likewise, statements made by a physician to his insurer are similarly protected by the attorney-client privilege. (People v. Ryan (1964), 30 Ill. 2d 456, 461, 197 N.E.2d 15 (“public policy dictates that the statement given by [the insured] to her insurance carrier was clothed with the attorney-client privilege while in control of the insurer”); Chavez v. Watts (1987), 161 Ill. App. 3d 664, 515 N.E.2d 146 (communications between insured and insurer fall within attorney-client privilege).) This long-established rule applies even if the statements are made to a nonattorney agent of the insurer when the insurer is under a duty to defend, due to the fact that the insured may assume that any communications made to the agent are for the purpose of being transmitted to an attorney. (People v. Ryan, 30 Ill. 2d 456, 197 N.E.2d 15; see also Claxton v. Thackston (1990), 201 Ill. App. 3d 232, 559 N.E.2d 82; Chavez v. Watts, 161 Ill. App. 3d 664, 515 N.E.2d 146; Braglia v. Cephus (1986), 146 Ill. App. 3d 241, 496 N.E.2d 1171.) Thus, the physician client may also control the disclosure of any information provided to his insurance carrier through the exercise of his attorney-client privilege.

We recognize that notwithstanding the availability of the attorney-client privilege to restrict unbridled sharing of the patient’s medical secrets, an argument can nevertheless be made that once communication with third parties is permitted prior to suit, albeit with the physician’s own attorney or insurer, it becomes difficult to monitor and control any further information sharing between such third parties and the defendant’s attorney or insurance investigators.

The question of whether a physician may consult his own attorney prior to being sued was briefly discussed in two relatively recent law review articles written from the polar perspectives of the plaintiff and defense bars. From the defense side, in McVisk, A More Balanced Approach to Ex Parte Interviews by Treating Physicians, 20 Loy. U. Chi. L.J. 819 (1989), the author proposed, as does the defendant here, that Petrillo should not apply to a physician who fears that a malpractice suit may be filed against him. The rationale is that the physician’s defense is enhanced if he is able to consult with an attorney while the events are still fresh in his mind. Moreover, McVisk argues, any breach of physician-patient confidentiality which does occur will be limited by the attorney’s ethical obligation to maintain the confidences of his client, the physician.

From the plaintiff’s viewpoint, in Corboy, Ex Parte Contacts Between Plaintiffs Physician and, Defense Attorneys: Protecting the Patient-Litigant’s Right to a Fair Trial, 21 Loy. U. Chi. L.J. 1001 (1990), the author takes the position that until suit is actually filed, a patient has not waived the privilege or consented to any disclosure of confidential information, and Petrillo should therefore apply. He responds to the need perceived by McVisk of the physician consulting an attorney while events are fresh by pointing to the physician’s practice of recording important matters in his office records. As a result, the author concludes, there is no need to create an exception to Petrillo to allow disclosure prior to suit being filed.

It would seem that notwithstanding the risks of possible abuse, neither the statute governing the physician-patient privilege nor the extension of the policies enunciated in Petrillo would seek to deny a physician the right to consult his counsel if in good faith he deems himself exposed to risk of suit which could be lessened by early legal consultation. In exercising his right to maintain such consultation with his attorney, the physician would be mandated by his fiducial duties to his patient to strictly enjoin his attorney and his carrier from any cross-communication or information sharing with anyone else pursuant to the control which he may assert under the attorney-client privilege which would be operative between him, his counsel and his insurer. While such practice is not without risk that there would be some erosions of the protections provided under Petrillo, it is counterbalanced by the fundamental right of any person, including a physician, to seek legal counsel when threatened by potential legal liability without having to wait until suit is filed. However, the resolution of this initial question is not dispositive of the unique issues presented in this case.

Here, both the treating physician, Dr. Southwick, and defendant Dr. Method are insured by the same carrier, which in turn assigned the same attorney to represent the defendant after he had first been assigned to represent Dr. Southwick with whom he fully consulted in his capacity as Dr. Southwick’s attorney. It was therefore impossible for Dr. Southwick to effectively exercise his attorney-client privilege to prevent either his attorney or his insurer from disclosing Maria Baylaender’s confidences to defendant’s attorney since they were one and the same. In transferring Dr. Southwick’s attorney to represent the defendant, the insurer made it impossible to build a “Chinese wall” between attorneys to prevent information sharing. While such separation is difficult even with two attorneys where the carrier is the same, it is absolutely impossible where the same attorney is engaged to represent the defendant after having represented the treating physician. Thus, even if the treating physician was not in violation of Petrillo in his initial consultation with his attorney even though he was not made a party to the lawsuit, he would be in clear violation in failing to enjoin his attorney from transmitting the knowledge learned from him to the defendant or otherwise using such knowledge to assist the defense, which would be inevitable where his attorney assumes the defendant’s representation.

A case can be made that the integrity of the physician-patient relationship as defined in Petrillo could still have been maintained notwithstanding the fact that the same carrier which insured the defendant also insured the treating physician, had the carrier simply retained a different firm to represent the defendant and taken appropriate measures to ensure that the treating physician’s confidences were not shared. See, e.g., Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335 (when conflict exists between insured and insurer, same attorney cannot ethically represent both); Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24 (conflict of interest between insured and insurer required insurer with duty to defend to reimburse insured for costs of independent defense).

Here, exactly the opposite occurred. The carrier assigned an attorney to represent Dr. Southwick, and when suit was actually filed and Dr. Method rather than Dr. Southwick was named as defendant, deliberately took that attorney from Dr. Southwick, along with any confidential information Dr. Southwick may have revealed to him, assigned other counsel from another firm to represent Dr. Southwick, and assigned the original attorney to represent Dr. Method. In effecting this transfer, the plaintiff’s rights under Petrillo to protect her medical secrets learned by her physician from disclosure to the defendant were fatally compromised.

Accordingly, we hold that the ex parte discussions which occurred here between plaintiff’s treating physician and an attorney who later became the attorney for the defendant physician were in violation of the policies enunciated in Petrillo.

Defendant would urge that any sanction for violating Petrillo should be applied only to violations which occurred after 1986, and since the discussions at issue here occurred in 1979, no sanctions should be imposed. Petrillo, however, has been held not to be new law and has been applied retroactively. (See Karsten v. McCray (1987), 157 Ill. App. 3d 1, 509 N.E.2d 1376 (although Petrillo was case of first impression, it did not change existing law); Yates v. El-Deiry (1987), 160 Ill. App. 3d 198, 513 N.E.2d 519; but see Roberson v. Liu (1990), 198 Ill. App. 3d 332, 555 N.E.2d 999 (which held that Petrillo was'applicable, but vacated a finding of contempt for conduct which occurred before Petrillo).) Moreover, the issues raised in Petrillo were already of substantial currency in many jurisdictions in the late 1970’s when this case arose. See, e.g., Hammonds v. Aetna Casualty & Surety Co. (N.D. Ohio 1965), 243 E Supp. 793; Horne v. Patton (1973), 291 Ala. 701, 287 So. 2d 824; Wenninger v. Muesing (1976), 307 Minn. 405, 240 N.W.2d 333; Doe v. Roe (1977), 92 Misc. 2d 551, 400 N.Y.S.2d 668.

Having determined that ex parte discussions by a treating physician with an attorney who ultimately represents the defendant in a medical malpractice action are in violation of the principles set forth in Petrillo, we turn our attention to the appropriate remedy. The only feasible remedy in this case is to bar Dr. Southwick from testifying for the defendant as a sanction for violating Maria Baylaender’s physician-patient privilege. On balance, we find such a sanction appropriate to countervail the prejudice to the plaintiff resulting from the breach of the fiducial and confidential relation between Dr. Southwick and the plaintiff which was precipitated in this case. The propriety of this remedy where the principles of Petrillo were violated has been repeatedly affirmed. See Mondelli v. Checker Taxi Co., 197 Ill. App. 3d 258, 554 N.E.2d 266; Ritter v. Rush-Presbyterian-St. Luke’s Medical Center, 177 Ill. App. 3d 313, 532 N.E.2d 327; Yates v. El-Diery, 160 Ill. App. 3d 198, 513 N.E.2d 519; Karsten v. McCray, 157 Ill. App. 3d 1, 509 N.E.2d 1376.

As we have determined that this matter must be reversed and remanded for a new trial due to the violation of Petrillo, we need not determine whether the admission of certain evidence which plaintiff claims was error would also warrant reversal. However, we do reject plaintiff’s contention that no triable issues of fact existed and that he was entitled to judgment notwithstanding the verdict.

Plaintiff contends that the “controversy comes down to whether or not there was any evidence from which the jury could conclude that the new mass in the upper outer quadrant was not present in December of 1977 or May of 1978.” It is plaintiff’s position that there was no factual basis for Dr. Cunningham’s opinion that the mass did not exist, and it must therefore be excluded, and that when Dr. Cunningham’s testimony and the testimony of Dr. Southwick are excluded, there is no disputed issue of fact as to the existence of the mass in Maria Baylaender’s left breast in December of 1977 or May of 1978. We disagree.

Regarding Dr. Cunningham, he testified that his opinion that there was no mass was based in part on the diagrams drawn by the defendant during his deposition, and that he does not ordinarily rely on such material in forming opinions. Although we do not necessarily consider these diagrams to be inadmissible, as plaintiff would have us do (see, e.g., Burke v. Toledo, Peoria & Western R.R. Co. (1986), 148 Ill. App. 3d 208, 498 N.E.2d 682 (it was not an abuse of discretion to admit hand-drawn diagram of the accident site, since the diagram assisted the eyewitnesses in their testimony and clarified the events for the jury; diagram was admissible even though it contained a discrepancy concerning the length of defendant’s skid marks, since that discrepancy was brought to the jury’s attention)), we need not dispose of that issue here since even had we found the diagrams inadmissible, there would still have been a factual basis for Dr. Cunningham’s opinion.

In addition to the diagrams, he also reviewed the defendant’s office records and his letter to Dr. Gerbie. Neither the records nor the letter indicated that the mass was present. Dr. Cunningham also reviewed the discovery and evidence depositions of the defendant, in which the defendant testified that he did not palpate a hard mass. Dr. Cunningham also reviewed the medical records of Drs. Gerbie and Southwick, the records from Presbyterian-St. Luke’s Hospital and the mammograms. The records of neither Dr. Gerbie nor Southwick indicated the presence of the type of hard mass which plaintiff contends was present. In addition, the mammograms were negative. Thus, there was a factual basis for Dr. Cunningham’s opinion that no mass existed, even if the diagrams were excluded.

Moreover, in addition to Dr. Cunningham’s opinion, Dr. Method testified in his evidence deposition that he did not palpate a mass in the upper outer quadrant of Maria Baylaender’s left breast during either examination. While plaintiff contends that the defendant’s failure to document the lack of such a finding is “negative evidence” which is insufficient to create a factual issue in light of the positive testimony of plaintiff and Maria Baylaender, we cannot agree. Dr. Method testified that it was not his practice to document negative findings. Dr. Gerbie testified to the same effect. As a result, it would be permissible to infer from the lack of any entry in the defendant’s records that no such mass existed. Thus, there was other evidence, additional to Dr. Cunningham’s opinion, from which the jury could conclude that the mass was not present.

In addition, there was conflicting testimony on the issue of proximate cause. Dr. Everson testified that defendant’s failure to diagnose the cancer in December 1977 significantly decreased Maria Baylaender’s chance of survival. Dr. Cunningham, however, testified that even had the defendant detected and treated the cancer in December, she had no chance of survival, and therefore defendant’s failure to diagnose the cancer did not cause her death.

Thus, as a result our review of the record, we must disagree with the plaintiff that there were no triable issues of fact so as to entitle him to a judgment notwithstanding the verdict. See Mangus v. Cock Robin Ice Cream Co. (1977), 52 Ill. App. 3d 110, 367 N.E.2d 203 (in passing on motion for judgment notwithstanding verdict, both reviewing and trial courts are governed by same rules, that is, whether, when all the evidence is viewed in the aspect most favorable to the nonmovant, any contrary verdict could stand).

For all the above reasons, the judgment in favor of defendant is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

McNULTY, P.J., and MURRAY, J., concur.


author: JUSTICE LORENZ

text:
    TRACEY McCARTHY, Indiv. and as Representative of Certain Classes, Plaintiff-Appellant, v. LA SALLE NATIONAL BANK AND TRUST COMPANY, as Trustee, et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—90—0696
    Opinion filed June 5,1992.
    Rehearing denied July 8,1992.

      David S. Morris, of Chicago, for appellant.
    Shelly B. Kulwin, of Chicago, for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff appeals under Supreme Court Rule 308 (134 Ill. 2d R. 308) from an interlocutory order dismissing her complaint without prejudice for failing to allege sufficient facts to maintain a class action. We consider whether plaintiff adequately alleged that there was a common question of law or fact which predominated over questions affecting only individual members of the class. For the following reasons, we reverse and remand.

In her amended seven-count complaint, plaintiff alleged that she rented an apartment in a 70-unit building from defendants under a written lease and gave them a security deposit. She alleged that defendants had a duty under State and city laws to pay their tenants 5% interest per year on the security deposits. However, when her lease expired, defendants did not pay interest on her security deposit even though she was not in default under the lease. Plaintiff requested damages as allowed under the State and city laws.

In counts I and II of the complaint, plaintiff sought to represent a class of defendants’ current and former tenants who were not in default on their leases and who also did not receive interest each year on their security deposits. Plaintiff alleged that because there would be over 100 class members, joinder was impracticable. The alleged common question of law predominant among the class members was whether defendants, as a matter of consistent business practice, violated the State and city laws. The alleged common question of fact was that each violation occurred in the same manner, in that defendant wilfully failed to pay interest to each tenant. Plaintiff also alleged that her claim was the same as that of the class and that she would fairly and adequately represent the class. She also alleged that a class action was an appropriate method to adjudicate the claims.

Defendants only answered the allegations of the complaint relating to plaintiff’s individual claims. They admitted that they owned the building but asserted that only one defendant, David Zaransky, was the lessor of the building. They denied plaintiff’s allegation that they had a duty under State and city laws to pay interest on their tenants’ security deposits but admitted that Zaransky, as lessor, had that duty. They also admitted that plaintiff was not paid interest on her security deposit although they denied that this was done illegally. They denied that plaintiff was not in default on the lease.

Instead of answering the allegations of the complaint pertaining to a class action, defendants filed a motion to dismiss those allegations under both sections 2 — 615 and 2 — 801 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 615, 2 — 801). They argued that assuming plaintiff’s allegations were true as required on a motion to dismiss, it was undisputed that each member of the class was legally entitled to recover. Therefore, they contended there was no common question to resolve and the case was not appropriate for a class action. Defendants did not argue that plaintiff failed to state a cause of action on her own behalf.

After a hearing, the trial judge found that there was no common question of law among the class because defendants conceded in their motion to dismiss that the tenants were entitled to interest on their security deposits. Further, he found that there was no common question of fact because each tenant’s case involved a different factual situation, namely, whether the tenant defaulted on the lease. The judge dismissed the class counts of the complaint without prejudice to allow the tenants to present individual claims.

On plaintiff’s motion, the judge found that his ruling involved a question of law as to which there was a substantial ground for difference of opinion and that an immediate appeal would materially advance the litigation. He certified the following question for appeal under Rule 308:

“Whether the trial court pursuant to sec. 2 — 615 and 2 — 801 of the Illinois Code of Civil Procedure properly dismissed the class action allegations of plaintiff’s complaint seeking to recover interest and penalties under Ill. Rev. Stat. 1985, ch. 80, sec. 101, et seq. and Municipal Code of Chicago, ch. 193.1, et seq., for failing to allege common questions of law or fact which predominate over questions which affect only individual members of the putative class.”

This court granted plaintiff’s application for leave to appeal from that order.

Opinion

Review of an appeal under Rule 308 is limited to the question identified by the trial court. (Thompson v. Walters (1991), 207 Ill. App. 3d 531, 565 N.E.2d 1385.) The appellate court should not expand on the certified question to answer other questions which could have been included. Williams v. Chicago Osteopathic Medical Center (1988), 173 Ill. App. 3d 125, 527 N.E.2d 409.

In considering a motion to dismiss under section 2 — 615, the court must accept as true the well-pled facts of the complaint and any reasonable inferences that can be drawn from the facts. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615; Hayna v. Arby’s, Inc. (1981), 99 Ill. App. 3d 700, 425 N.E.2d 1174; Society of St. Francis v. Dulman (1981), 98 Ill. App. 3d 16, 424 N.E.2d 59.) The court may only consider the allegations of the complaint in ruling on the motion. (Saldana v. American Mutual Corp. (1981), 97 Ill. App. 3d 334, 422 N.E.2d 860; see Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634; Hayna, 99 Ill. App. 3d 700, 425 N.E.2d 1174; St. Francis, 98 Ill. App. 3d 16, 424 N.E.2d 59.) “Pleadings shall be liberally construed with a view to doing substantial justice between the parties.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 603(c).

Section 2 — 801 lists the prerequisites to maintain a class action: (1) the class is so numerous that joinder is impracticable; (2) there are questions of fact or law common to the class which predominate over questions affecting the individual members; (3) the representative party will fairly and adequately protect the class; and (4) a class action is an appropriate method to adjudicate the controversy. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 801.

Plaintiff argues that the class allegations of her complaint were sufficient to survive a section 2 — 615 motion to dismiss and that the trial judge misapplied the holdings of McCabe v. Burgess (1979), 75 Ill. 2d 457, 389 N.E.2d 565, and Gutansky v. Advance Mortgage Corp. (1981), 102 Ill. App. 3d 496, 430 N.E.2d 122. The courts in both McCabe and GutansJcy found that it was not an abuse of discretion to refuse to certify a class when the question of law or fact common to the class was uncontroverted.

In McCabe, plaintiff brought a class action to expunge convictions under a certain statute and to recoup the relating fines and court costs. Plaintiff relied on two previous unrelated cases in which the supreme court held that the statute was unconstitutional and that persons convicted under the statute were entitled to have their convictions expunged and their fines and costs refunded. The trial judge refused to certify the class and plaintiff appealed. The supreme court noted that the two questions common to the class were whether the statute was unconstitutional and whether persons convicted under the statute were entitled to have their convictions expunged and their fines and costs refunded. However, these common questions were resolved in the two previous cases and were no longer controverted. As a result, the court found that there were no common questions which predominated over questions relating to the individual members of the class and the trial judge did not abuse his discretion in finding that the action could not be maintained as a class action. See also Gutansky, 102 Ill. App. 3d 496, 501, 430 N.E.2d 122, 126 (applied McCabe and affirmed the trial judge’s refusal to certify a class seeking statutory penalties because plaintiffs’ right to recover was “settled beyond doubt” when defendants waived a challenge to the constitutionality of the statute); Rodmaker v. Johns Holding Co. (1990), 205 Ill. App. 3d 520, 563 N.E.2d 1175 (applied Mc-Cabe and reversed the trial judge’s certification of a class seeking statutory penalties because liability under the statute was absolute and the validity of the statute was not in doubt).

Defendants here claim that the dismissal of plaintiff’s complaint was warranted because the alleged common question of law or fact was uncontroverted. They argue that on a motion to dismiss, the allegations of plaintiff’s complaint are admitted as true and, therefore, it is settled that the members of the class have a right to recover as in McCabe and Gutansky.

Defendants’ argument is not persuasive. A similar argument was made and rejected in Rodmaker where defendants urged the appellate court to apply McCabe because they filed a motion to dismiss which admitted the allegations of plaintiff’s class action complaint. In rejecting the argument, the court explained:

“If defendants’ theory is correct, the predominance and, indeed, existence of a common question upon which a request for certification of a class action is based could always be refuted by a defendant by moving to dismiss the complaint in which the request for certification is contained. The admission of the allegations of a complaint arising from a motion to dismiss is only for the purpose of determining whether a complaint states a substantive cause of action and does not affect any other aspect of the case.” (Rodmaker, 205 Ill. App. 3d at 524-25, 563 N.E.2d at 1178.)

The alleged common questions in this case are not uncontroverted merely because defendants filed a motion to dismiss which admitted the allegations of plaintiff’s complaint.

Further, it is important to note that unlike McCabe, Gutansky, and Rodmaker, this case does not involve review of a trial judge’s exercise of discretion in deciding whether to certify a class under section 2 — 801. Here, the appeal is from the grant of defendants’ motion to dismiss under section 2 — 615 and this court can only review the allegations of plaintiff’s complaint to determine whether she adequately pled the prerequisites of a class action. Defendants’ argument that they do not dispute the validity or applicability of the statute is outside the four corners of the complaint and cannot be considered.

The present case is analogous to Steinberg, Saldana, Hayna, and St. Francis, in which the courts reviewed motions to dismiss class allegations. Although it is not clear to what extent a plaintiff must plead the prerequisites for a class action (4 R. Michael, Illinois Practice §30.2, at 71-72 (1989)), in each of those cases the courts examined the allegations of the complaints to determine whether they adequately alleged the prerequisites of a class action as listed in section 2 — 801.

Here, defendants only challenged plaintiff’s complaint on the prerequisite that there was a common question of law or fact which predominated over questions affecting individual members of the class. A common question may be shown when the claims of the individual members of the class are based on the common application of a statute or they were aggrieved by the same or similar misconduct. (Miner v. Gillette Co. (1981), 87 Ill. 2d 7, 428 N.E.2d 478; Steinberg, 69 Ill. 2d 320, 371 N.E.2d 634.) A class action need not be predicated on a single transaction but may be predicated on a long series of transactions based on similar acts or documents. (Spirek v. State Farm Mutual Automobile Insurance Co. (1978), 65 Ill. App. 3d 440, 382 N.E.2d Ill.) Also, successful adjudication of plaintiff’s claim will establish the other class members’ right to recover. (St. Francis, 98 Ill. App. 3d 16, 424 N.E.2d 59.) Further, the fact that the class members’ recovery may be in varying amounts which must be determined separately does not necessarily mean that there is no predominant common question. St. Francis, 98 Ill. App. 3d 16, 424 N.E.2d 59.

In this case, plaintiff alleged that the common questions were whether defendants were required to pay their tenants interest on the security deposits and whether defendants as a matter of consistent business practice violated State and city laws when they willfully failed to pay the interest. The claims of the class members are based on the common application of the State and city laws requiring landlords to pay their tenants interest on their security deposits. Although the class members signed separate leases at separate times, they were allegedly harmed in the same manner in a series of similar transactions based on similar documents. Further, plaintiff alleged that defendants failed to pay interest to any of their tenants. If plaintiff proves that allegation, it will establish the other class members’ right to recover. Lastly, although each class member may be entitled to a different amount of interest which would be determined separately, that fact does not defeat the common question. The trial judge believed that there was no predominant question because he would have to determine whether each tenant in the class was in default under the lease. However, plaintiff only sought to represent tenants who were not in default on their leases. Plaintiff’s complaint sufficiently alleged a predominant common question and, as a result, defendants’ motion to dismiss should have been denied.

Reversed and remanded for proceedings consistent with this opinion.

McNULTY, P.J., and MURRAY, J., concur.