author: JUSTICE GOLDENHERSH

text:
    COLETTE MARTIN, Plaintiff-Appellant, v. DAVID CAIN, Defendant-Appellee.
    Fifth District
    No. 5—89—0674
    Opinion filed August 26, 1991.
    Rehearing denied October 7, 1991.

      Randy Patchett, of Winters, Brewster, Murphy, Crosby & Patchett, of Marion, for appellant.
    Donald V. Ferrell, of Jelliffe, Ferrell & Morris, of Harrisburg, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Colette Martin, was injured when a car door was inadvertently slammed on her knee by defendant, David Cain. Plaintiff filed a complaint seeking damages for defendant’s negligence. After a jury trial in the circuit court of Williamson County, a verdict was entered in favor of plaintiff and against defendant in the amount of $10,000, which constituted plaintiff’s medical expenses and compensation for pain and suffering. Plaintiff appeals from the denial of her post-trial motion seeking a new trial on the issue of damages, or in the alternative, a new trial on the issue of defendant’s negligence and plaintiff’s damages. Plaintiff argues that the trial court erred in denying her post-trial motion and contends that she is entitled to a new trial on the issue of damages. We agree.

The facts of this case are not in dispute. The parties involved in this case were friends. On April 6, 1986, defendant shut the driver’s door of his 1985 Camaro on plaintiff’s left knee as plaintiff was attempting to enter the back seat of defendant’s car. Her left knee was pinned between the driver’s side door and the car’s frame. Defendant told plaintiff that he slammed the door extremely hard because he had been having trouble getting the door to shut tightly. Defendant took plaintiff to the emergency room, where plaintiff was given X rays, ice packs, a prescription for medicine, and a pair of crutches. Two days later, plaintiff went to see her family physician because she was still experiencing pain and was unable to put any weight on her knee. Plaintiff remained on crutches for approximately two weeks following the incident. Plaintiff stated that the swelling and discoloration remained for approximately two to three months, and it was at least that long before she was able to move her knee within a normal range of motion.

On April 25, 1986, plaintiff saw Dr. Stanley London, a board-certified general surgeon with a subspecialty interest in knees and sports medicine. On plaintiff’s first visit, Dr. London noted that plaintiff had some black and blue areas on the inside part of her left knee. He found plaintiff’s knee to be stable with tenderness under her kneecap and along her medial collateral ligament. Dr. London also detected some crepitation, more commonly referred to as popping, under her left kneecap as well as her right kneecap. Plaintiff had difficulty bending her left knee. Dr. London found the injury to her knee to be consistent with plaintiff’s explanation of getting her knee slammed in a car door three to four weeks earlier. By July 23, 1986, Dr. London found her left knee to have a full range of motion. Because of the persistence of plaintiff’s symptoms, Dr. London performed an arthrogram on September 2, 1986. This procedure involves injecting dye and air into the knee joint in order to visualize more than can be seen with an ordinary X ray. Dr. London found the results to be normal.

On January 27, 1987, plaintiff underwent an arthroscopy because of the persistence of her symptoms. Plaintiff was given a general anesthetic while a telescopic instrument was inserted into her knee in order to see inside. Dr. London detected a condition referred to as a plica band. This is a congenital condition that occurs in approximately 20% of the population and, according to Dr. London, is overwhelmingly nonsymptomatic. Occasionally, usually due to a trauma, the plica may become irritated and thickened. In plaintiff’s case, the band ran along the inside part of her kneecap and was somewhat thickened and of moderate size. Dr. London testified that to a reasonable degree of medical certainty, the thickening of plaintiff’s plica band was caused by plaintiff’s knee being slammed in defendant’s car door. Dr. London also stated that he had no reason to doubt the sincerity of plaintiff’s complaints of pain. He found that there were limitations on plaintiff’s activities immediately after the accident, and because the symptoms continued, Dr. London assumed that these symptoms continued to interfere with plaintiff’s activities. While plaintiff still had subjective complaints of pain as well as complaints of swelling and popping, Dr. London objectively found plaintiff’s left knee to be as good as her right knee. Dr. London believes that it is possible that plaintiff will continue to experience some symptoms.

The arthroscopy left a scar on plaintiff’s left knee which she displayed to the jury. Plaintiff also had a larger scar on her left knee which was the result of a bicycle accident. Plaintiff testified that after the arthroscopy, she was in a bandage from her pelvis down to her foot with an overlapping wood slatted brace that completely immobilized her knee. The brace remained on for three weeks, and plaintiff had to use crutches for three months. Plaintiff participated in therapy and gradually regained her range of motion.

On April 6, 1986, plaintiff was unemployed. Plaintiff and her husband owned a lounge that closed in June of 1986. The closing of this business was not attributable to plaintiff’s injury, but rather, to losses that the business suffered. At the time of the arthroscopy, which was performed on January 29, 1987, plaintiff was employed by a chiropractor at a wage of $5.50 per hour. The chiropractor terminated plaintiff’s employment because the scheduled arthroscopy prevented plaintiff from attending a seminar in Miami, Florida. In March 1987, plaintiff attempted to return to work as a physician’s assistant for Dr. Parks. She worked for Dr. Parks for approximately two weeks at a wage of $4.25 per hour, but was forced to quit because being on her feet caused her left knee to swell. Plaintiff went to work for Cherry Insurance Company in June 1987, at a wage of $5 per hour. Altogether, plaintiff stated she missed 18 weeks of work due to her knee injury.

Plaintiff also testified that her activities have been severely limited since her knee injury occurred. Prior to the injury, plaintiff mowed her yard, painted her house, did all her house and yard work, did the family’s laundry, jogged, and participated in weightlifting. Plaintiff also stated that she could work as a beauty operator at her mother’s shop. After the injury to her knee, plaintiff was no longer able to jog, mow the lawn, complete her housework without assistance, or work as a beauty operator. Such activities caused plaintiff pain and her knee to swell.

During closing argument plaintiff’s attorney asked for $1,000 for the disfigurement caused by the scar on plaintiff’s knee because of the arthroscopy, $3,931 for medical expenses, $3,500 for lost wages, $20,000 for pain and suffering, and $25,000 for disability. The defense attorney argued that defendant was not in any way liable, but if the jury did find defendant liable, he argued that $15,000 would be a more reasonable amount to award plaintiff. The jury returned a verdict of $10,000. The itemized verdict read as follows:

“a. Disability and disfigurement resulting from the injury $ -0-
b. Pain and suffering experienced and reasonably certain to be experienced as a result of the injury 6,069.00
c. Reasonable expenses of necessary medical care, treatment and services received 3,931.00
d. Value of earnings lost -0-”

The first issue we are asked to consider is whether the trial court erred in denying plaintiff’s motion for new trial on the issue of damages. Plaintiff contends that there is clear liability on the part of defendant, but that the jury ignored proven elements of damages by not awarding any compensation for disability, disfigurement, or lost wages. Defendant responds that the trial court did not abuse its discretion in denying plaintiff’s motion for a new trial because the jury did not ignore proven elements of damages as plaintiff claims, but rather, the jury made a credibility determination based upon the evidence, and the jury’s determination cannot be set aside merely because different conclusions could have been drawn or because a reviewing court may feel that other results are more reasonable.

The decision as to whether a new trial should be granted rests within the sound discretion of the trial court, and its ruling will not be reversed absent an abuse of that discretion. (Hinnen v. Burnett (1986), 144 Ill. App. 3d 1038, 1039, 495 N.E.2d 141, 142; Ford v. Baker (1978), 61 Ill. App. 3d 45, 46, 377 N.E.2d 853, 854.) As a general rule, a new trial in a personal injury action will not be granted on the ground that the damages awarded by the jury are too small. (See Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 647, 432 N.E.2d 1267, 1272.) This is particularly true where no complaint is made as to the jury instructions or admissibility of evidence, and the trial was otherwise error-free. (See Ford, 61 Ill. App. 3d at 46, 377 N.E.2d at 854; Haleem v. Onate (1966), 71 Ill. App. 2d 457, 460, 219 N.E.2d 94, 96.) A jury’s finding on damages should not be disturbed unless the damages are manifestly inadequate, a proven element of damages is ignored, or the amount awarded bears no reasonable relationship to the loss suffered. Zitzmann v. Miller (1990), 194 Ill. App. 3d 477, 482, 551 N.E.2d 707, 710.

After reviewing the entire record, we find that proven elements of damages were ignored. The jury awarded no money for disability and disfigurement nor any money for lost wages. The jury did, however, award all of plaintiff’s medical expenses plus $6,069 for pain and suffering. We find it inconsistent that the jury would allow recovery for pain and suffering, but fail to award any money for disability. Clearly, the jury believed that plaintiff was injured as a result of the car door being slammed on her knee and that this injury caused her pain. The evidence was uncontradicted that plaintiff’s lifestyle had been changed as a result of her knee injury. Plaintiff, who was 35 years old at the time of her knee injury, had been quite active up until the day her knee was slammed into defendant’s car door. Before this injury, plaintiff jogged, lifted weights, mowed the family lawn, did all the family’s household chores without the need for assistance, and could work as a beauty operator at her mother’s shop. After the injury, plaintiff’s activities had to be curtailed. Plaintiff is no longer able to participate in sports or even complete her housework without her knee becoming swollen and irritated. Moreover, even though plaintiff did not find the scar on her left knee caused by the arthroscopy to be bothersome, she nonetheless has a scar from this procedure which the jury did not even nominally compensate. Had the jury awarded a small amount for disability and disfigurement, then the situation might be different. We could then arguably acknowledge that the jury recognized such damages but chose not to believe all of plaintiff’s testimony. Where we are faced with zero dollar awards when damages are clearly evident, however, we have no choice but to declare that the verdict is inconsistent. Kumorek v. Moyers (1990), 203 Ill. App. 3d 908, 561 N.E.2d 212.

On the other hand, plaintiff’s claim for lost wages is somewhat less clear, as plaintiff was unemployed at the time of the accident. However, it was uncontroverted that plaintiff did lose her job working for a chiropractor because she was unable to attend a seminar in Miami because of her scheduled arthroscopy. Plaintiff was out of work for nine weeks until she found another job working for a physician for $1.25 per hour less than her job with the chiropractor. It was also uncontroverted that plaintiff had to quit the job with the physician due to discomfort she experienced in her knee. She was again unemployed for nine weeks until she found a job with an insurance company. Plaintiff offered a reasonable basis for calculating her lost wages. She did not ask for the $5.50 per hour she was making at the chiropractor’s office, but instead used the lower figure of $4.25 per hour which she earned at the physician’s office. Defendant offered the jury no competent evidence to rebut plaintiff’s calculation; therefore, the jury was not at liberty to disregard its instruction to consider all elements of damages. (Blevins v. Inland Steel Co. (1989), 180 Ill. App. 3d 286, 291, 535 N.E.2d 972, 975.) As a matter of law, we find that plaintiff’s damages are inadequate.

The next issue we must address is whether defendant is entitled to a new trial on the question of damages only. A new trial limited to the issue of damages may be granted where:

“(1) the jury’s verdict on the question of liability is amply supported by the evidence; (2) the questions of damages and liability are so separate and distinct that a trial limited to the question of damages is not unfair to the defendant; and (3) the record suggests neither that the jury reached a compromise verdict, nor that, in some other identifiable manner, the error which resulted in the jury’s awarding inadequate damages also affected its verdict on the question of liability.” Robbins v. Professional Construction Co. (1978), 72 Ill. 2d 215, 224, 380 N.E.2d 786, 790.

First, we believe that the evidence amply supported the jury’s verdict on the issue of liability. There was no evidence that plaintiff did anything to cause the door to be slammed on her knee. While defendant did not intentionally cause plaintiff’s knee to be injured, it is clear from the evidence presented that he was negligent in failing to determine whether plaintiff was in the car before he slammed the door. Second, we find the issues of damages and liability to be separate and distinct. On remand, the jury could certainly determine adequate damages in this case without hearing the evidence on liability. Finally, as previously discussed, we believe that the jury improperly disregarded proven elements of damages. There is nothing in the record to indicate that the verdict was a compromise among the jurors or that the jurors bargained inadequate damages for unjustified liability. Therefore, we find that plaintiff is entitled to a new trial solely on the issue of damages.

For the foregoing reasons, the judgment of the circuit court of Williamson County is reversed and the cause remanded for a new trial on the issue of damages.

Reversed and remanded with directions.

RARICK, P.J., and WELCH, J., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    BOATMEN’S NATIONAL BANK OF BELLEVILLE, Plaintiff-Appellee, v. IVADELL BENTON et al., Defendants-Appellants.
    Fifth District
    No. 5—90—0349
    Opinion filed August 27, 1991.
    Rehearing denied October 4, 1991.
    Melvin W. Trotier, of Belleville, for appellants.
    Steven M. Wallace, of Carr, Korein, Tillery, Kunin, Montroy, Glass & Bogard, of East St. Louis, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

On September 24, 1986, defendants, Ivadell Benton and Sarah Benton-Leavitt, entered into a contract of guaranty with plaintiff, Boatmen’s National Bank of Belleville. This instrument, denominated as a “continuing, absolute, unconditional guarantee,” was given in consideration of any credits or advances to be made to “The Cowboy Shop.” The contract provided in part:

“This guaranty is absolute and is not affected by any failure of the bank to give notice of default on the part of the borrower, nor by extensions granted to said borrower, nor by any acts or omissions whatsoever by the bank relative to the indebtedness of the borrower or any of the undersigned or any collateral that may be secured therefore. Notice of the acceptance of this guaranty by the bank is hereby waived by the undersigned.”

The Cowboy Shop defaulted on its loans, and on September 30, 1988, Boatmen’s sued defendants to recover the balance due on the loans plus interest, costs, and attorney fees. Defendants filed their answers on October 28, 1988. Plaintiff filed its motion for summary judgment on September 14, 1989. On December 15, 1989, defendants filed a motion to amend their answers and countercomplaints and filed an answer to plaintiff’s motion for summary judgment. A hearing was held on February 7, 1990, and on February 26, 1990, the trial court denied defendants’ motions to amend their answers and their countercomplaints and granted plaintiff’s motion for summary judgment. The trial court based its decision to grant plaintiff’s motion on the guaranty contract executed by the parties. The court entered judgment in favor of plaintiff in the amount of $58,151.45. Defendants filed a motion to vacate the trial court’s order on March 5, 1990, which was denied on May 5, 1990. Defendants then filed a timely notice of appeal. We note at the outset that a motion to strike defendants’ brief was taken with the case. Defendants’ brief contains numerous factual assertions which are not contained in the record. While we do not approve of this procedure, we shall, nevertheless, deny the motion to strike defendants’ brief and address defendants’ contentions.

Defendants argue on appeal that the trial court erred when it entered summary judgment for plaintiff because the guaranty contract was unenforceable. While defendants also appeal the denial of their motions to amend their answer and countercomplaint, they state in their brief that if the trial court’s decision to enter summary judgment in favor of plaintiff based upon the guaranty contract was proper, it would render these issues moot. We agree, and because we affirm the trial court, we shall address only defendants’ contention regarding the enforceability of the guaranty contract.

Defendants contend that the guaranty contract is unenforceable because it is ambiguous and overly broad and amounts to an adhesion contract. We disagree.

In Du Quoin State Bank v. Daulby (1983), 115 Ill. App. 3d 183, 450 N.E.2d 347, we stated:

“The rules of construction applicable to contracts generally also apply to contracts of guaranty [citation], and if such a contract is unambiguous, it must be enforced as written. [Citations.] These principles apply even in cases such as this where the guaranty agreement contains broad statements of guarantor liability.” (Emphasis added.) (Du Quoin State Bank, 115 Ill. App. 3d at 185-86, 450 N.E.2d at 349.)

(See also Bank of Naperville v. Holz (1980), 86 Ill. App. 3d 533, 407 N.E.2d 1102; Jacobson v. Devon Bank (1976), 39 Ill. App. 3d 1053, 351 N.E.2d 254.) We conclude that the guaranty contract relied upon by the trial court is neither ambiguous nor overly broad.

Defendants also claim the guaranty contract is unenforceable because it is an adhesion contract. A contract of adhesion has been described as

“ ‘a standardized contract prepared entirely by one party, and which, due to the disparity in bargaining power between the draftsman and the second party, must be accepted or rejected by the second party on a “take it or leave it” basis without opportunity for bargaining and under such conditions that the second party or “adherer” cannot obtain the desired product or service save by acquiescing in the form of the agreement.’ ” (Star Finance Corp. v. McGee (1975), 27 Ill. App. 3d 421, 426, 326 N.E.2d 518, 522, quoting Walnut Creek Pipe Distributors, Inc. v. Gates Rubber Co. (1964), 228 Cal. App. 2d 810, 814-15, 39 Cal. Rptr. 767, 771.)

The court continued: “Whether a contract is one of adhesion is itself a question of fact ***.” (Star Finance Corp., 27 Ill. App. 3d at 426, 326 N.E.2d at 522.) While defendants argue that there was a disparity in bargaining power between the parties, that the contract was offered on a “take it or leave it” basis without the opportunity for bargaining, and that they could not obtain the service provided by plaintiff elsewhere, their affidavits filed in response to plaintiff’s motion for summary judgment contained no statements which would support these arguments. In the absence of any evidence to support their contention that the bank’s standard form agreement was one of adhesion, the trial court did not err in granting summary judgment to the plaintiff.

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

Affirmed.

RARICK, P.J., and GOLDENHERSH, J., concur.


author: JUSTICE HOWERTON

text:
    RALPH O. RENTH et al., Plaintiffs-Appellees and Cross-Appellees, v. CLYDE R. KRAUSZ, Defendant and Third-Party Plaintiff-Appellee and Cross-Appellant (Binsbacher and Barkau, Third-Party Defendant-Appellant and Cross-Appellee).
    Fifth District
    No. 5—90—0372
    Opinion filed August 27, 1991.
    Rehearing denied September 27, 1991.

      William F. Kopis, Joshua G. Vincent, and Bruce L. Carmen, all of Hinshaw & Culbertson, of Chicago, for appellant.
    Grady E. Holley and Steven J. Rosen, both of Springfield, for appellee Clyde R. Krausz.
    Thomas Benedick, of O’Fallon, for appellees Ralph 0. Renth and Jane R. Renth.
   JUSTICE HOWERTON

delivered the opinion of the court:

Buyers sued seller to rescind a real estate installment contract alleging that seller failed to attach to the contract a certificate of compliance with the building code as required by section 2 of “An Act relating to installment contracts to sell dwelling structures” (Act) (Ill. Rev. Stat. 1987, ch. 29, par. 8.22).

That act states in pertinent part:

“Any installment contract for the sale of a dwelling structure shall be voidable at the election of the buyer unless there is attached to the contract or incorporated therein a certificate of compliance ***.”

The seller filed a third-party complaint against his attorneys alleging that his attorneys were negligent in failing to attach the certificate, and seller moved for summary judgment. The circuit court granted seller summary judgment against his attorneys on the issue of liability.

After a two-day bench trial, the circuit court found in favor of buyers and granted rescission.

The circuit court ordered seller to pay buyers $123,524.34, which is the amount buyers had paid on the contract less reasonable rental, and, on the third-party complaint, ordered seller’s lawyers to pay seller $179,630.59. The lawyers appealed, claiming laches barred buyers’ claim. We reverse.

Laches is an equitable doctrine that flows from a judicial reluctance to give aid to one who has knowingly slept on her rights. (Nancy’s Home of the Stuffed Pizza, Inc. v. Cirrincione (1986), 144 Ill. App. 3d 934, 494 N.E.2d 795.) If lack of due diligence has caused prejudice to an opponent, laches may be imposed. (See Thurston v. State Board of Elections (1979), 76 Ill. 2d 385, 392 N.E.2d 1349.) Necessarily, then, the imposition of laches depends upon the facts of each case (McCartney v. McCartney (1956), 8 Ill. 2d 494, 134 N.E.2d 789), and a court, therefore, may impose laches if it finds that a party unreasonably delayed asserting a known right and that delay unduly prejudiced the opposing party. (Shroeder v. Schlueter (1980), 85 Ill. App. 3d 574, 407 N.E.2d 204.) Indeed, the existence of prejudice is so critical that in some instances, a court may impose laches on a claim brought before the statute of limitations has expired. See Miller v. Siwicki (1956), 8 Ill. 2d 362, 134 N.E.2d 321.

We examine the facts to determine whether there was here both delay and prejudice such that the circuit court should have imposed laches to bar buyers’ suit to rescind the contract.

To measure delay, we must first inquire when buyers knew they had the right to void the contract. In Illinois, delay is measured from the time a party knew or in some instances should have known of a right to sue. (See Perlman v. First National Bank (1973), 15 Ill. App. 3d 784, 305 N.E.2d 236.) When a right to sue is based upon a statute or a public record, Illinois courts have charged a party with constructive knowledge, because “ignorance of the law or legal rights will not excuse delay in bringing suit.” (Pyle v. Ferrell (1958), 12 Ill. 2d 547, 555, 147 N.E.2d 341, 345, citing LeGout v. LeVieux (1929), 338 Ill. 46, 169 N.E. 809.) In this case, buyers must be charged with constructive knowledge of the statute that gave them the right to void the contract; therefore, we measure the delay from the time the contract was executed, because it was at this time that they should have known that seller had failed to attach the certificate of compliance. That delay was six years.

We now examine the prejudice. During the six-year delay, the value of the land depreciated by $115,000, a 42% decrease from the $275,000 sale price, a substantial prejudice to defendant. See, e.g., Bledsoe v. Carpenter (1987), 163 Ill. App. 3d 823, 516 N.E.2d 1013; Hay v. Albrecht (1988), 169 Ill. App. 3d 120, 523 N.E.2d 211; Shroeder v. Schlueter (1980), 85 Ill. App. 3d 574, 407 N.E.2d 204.

Buyers argue that laches does not apply and rely upon Courtois v. Millard (1988), 174 Ill. App. 3d 716, 529 N.E.2d 77, where this court held that a five-year delay in filing suit under the same statute did not justify the imposition of laches.

Though some of the facts in Courtois are similar to those in the case at bar, we find Courtois distinguishable. In Courtois this court simply looked to the delay presented, found it reasonable, but did not specifically address the question of prejudice. To the extent that Courtois is being read as creating a two-step analysis in determining whether to impose laches, Courtois needs explication.

Laches is not another statute of limitations. Indeed, it long has been held that “[IJaches is not, like limitations, a mere matter of time but principally a question of the inequity of permitting the claim to be enforced, — an inequity founded upon some change in the condition or relation of the property and the parties. Laches depends on whether, under all the circumstances of the particular case, plaintiff is chargeable with want of due diligence in failing to institute proceedings before he did. It has been defined to be such neglect or omission to assert a right, taken in conjunction with lapse of time of more or less duration, and other circumstances causing prejudice to an adverse party, which will operate as a bar ***. [Citation.] Where there is such a change in the relations of the parties or such a change in the subject matter of the suit as to render it inequitable to grant relief, it will be refused without reference to the statutory period of limitation.” (McKey v. McKean (1943), 384 Ill. 112, 126, 51 N.E.2d 189, 195-96, citing Venner v. Chicago City Ry. Co. (1908), 236 Ill. 349, 86 N.E. 266; Walker v. Ray (1884), 111 Ill. 315; see also Curtis v. Curtis (1947), 398 Ill. 442, 75 N.E.2d 881; Pyle v. Ferrell (1958), 12 Ill. 2d 547, 147 N.E.2d 341.) The question of delay, therefore, is enmeshed in the question of prejudice, and neither Courtois nor this opinion can be read to direct a court first to assess delay, and then, if delay is found, to assess prejudice. Courtois can only be read to hold that the circuit court did not abuse its discretion in refusing to impose laches.

In that regard, the critical fact in Courtois must be compared with the critical fact in this case, i.e., whether “there is such a change in the relations of the parties or such a change in the subject matter of the suit as to render it inequitable to grant relief.” McKey, 384 Ill. at 126, 51 N.E.2d at 196.

In Courtois, there was no evidence that the property had depreciated during the five years that plaintiff had delayed filing suit. Here, however, the property depreciated by $115,000, a 42% depreciation. We find, therefore, that the facts and circumstances in this case warrant imposition of laches, because the delay in making the claim under this statute, six years, in conjunction with the prejudice to the sellers, a 42% depreciation in the value of the land, “renders it inequitable to grant relief.”

We, therefore, reverse the circuit court’s judgment rescinding the contract.

Reversed.

CHAPMAN and GOLDENHERSH, JJ., concur.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JULIA CAMDEN, Defendant-Appellant.
    Fifth District
    No. 5—89—0284
    Opinion filed August 30, 1991.
    Rehearing denied September 27, 1991.

      Daniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Jon C. Anderson, State’s Attorney, of Robinson (Kenneth R. Boyle, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Following a jury trial in the circuit court of Crawford County, defendant, Julia Camden, was found not guilty of attempted murder and guilty but mentally ill of armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A — 2) and two counts of aggravated battery (Ill. Rev. Stat. 1983, ch. 38, pars. 12 — 4(a), (b)(1)). Defendant was sentenced to a six-year term of imprisonment and subsequently perfected the instant appeal.

The following issues are presented for review: (1) whether the State failed to prove defendant’s sanity beyond a reasonable doubt; (2) whether the trial court erred in refusing to grant a mistrial based upon the testimony of a witness which exceeded the scope of a pretrial order; (3) whether the trial court erred in giving the second paragraph of the instruction defining insanity; (4) whether the prosecutor’s closing argument was improper and so prejudiced defendant as to deny her a fair trial; and (5) whether defendant’s aggravated battery convictions must be vacated where they were used as the predicate offense for the charge of armed violence.

The record of defendant’s February 1989 trial contains the following evidence. Defendant and Ivan “Yancey” York, Jr. (York), began dating in April 1980, and in November 1981, they moved in together. In January 1983, defendant and York separated, but dated occasionally until early July 1983.

Around 4 p.m. on July 21, 1983, defendant accompanied her friend Connie Siebeck to the Saloon Tavern in Robinson, Illinois. York and Dennis York also arrived at the tavern around 4 p.m. The parties did not converse. After about 10 minutes, the two men returned to Dennis York’s house. Ms. Siebeck left the tavern at approximately 6 p.m., but defendant remained there. Around 8:30 p.m., York returned to the tavern and defendant was still there. York sat at a table with Kevin Pethel, Barbara Bethel, Mona Bethel, and Elder York for approximately 20 minutes and then left with Kevin Bethel to go to the Oasis Bar.

After York and Kevin Bethel left, defendant came to the table and asked Barbara Bethel, “Did he leave with that broad?” Barbara Bethel told defendant she did not know to whom defendant was referring. When York returned to the tavern approximately one hour later, defendant was still seated at the bar. York rejoined the Bethels and Elder York. York and Elder York were talking when defendant approached the table. York heard defendant say “I hope you enjoyed yourself,” heard a gunshot, and saw that he was wounded in the left side of the abdomen. Barbara Bethel and Mona Bethel testified that defendant said to York, “Did you enjoy it?” After the shooting, defendant turned, tripped over Mona Bethel’s chair, knocking her to the floor, and hurried out of the tavern. Defendant then walked to the Crawford County jail.

Although defendant did not deny during the trial that she shot York, she asserted that she was insane at the time of the offense. The jury, which was instructed that the State bore the burden of proving beyond a reasonable doubt that defendant was sane, found defendant guilty but mentally ill of armed violence and battery.

Defendant initially argues on appeal that the State failed to prove her sanity beyond a reasonable doubt. At the time of the offense, the affirmative defense of insanity was codified by section 6 — 2 of the Criminal Code of 1961, which provided:

“(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
(b) The terms ‘mental disease or mental defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
(c) A person who, at the time of the commission of a criminal offense, was not insane but was suffering from a mental illness, [sic] is not relieved of criminal responsibility for his conduct and may be found guilty but mentally ill.
(d) For purposes of this Section, ‘mental illness’ or ‘mentally ill’ means a substantial disorder of thought, mood, or behavior which afflicted a person at the time of the commission of the offense and which impaired that person’s judgment, but not to the extent that he was unable to appreciate the wrongfulness of his behavior or is unable to conform his conduct to the requirements of law.” Ill. Rev. Stat. 1981, ch. 38, pars. 6 — 2(a) through (d).

Whether the State carried its burden of proving defendant sane is a question of fact, and the jury’s determination will not be reversed unless so improbable or unsatisfactory as to create a reasonable doubt as to the defendant’s sanity or so palpably erroneous as to suggest its basis as passion or prejudice. (People v. Silagy (1984), 101 Ill. 2d 147, 169, 461 N.E.2d 415, 425-26, cert. denied (1984), 469 U.S. 873, 83 L. Ed. 2d 156, 105 S. Ct. 227.) In deciding whether a defendant’s guilt of a crime was established beyond a reasonable doubt, the ultimate question is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.

The following evidence was introduced concerning the insanity defense. Friends and family testified that after defendant and York separated, there was a change in defendant’s behavior and appearance. Defendant became tired, depressed, and forgetful, and drank heavily. Defendant stopped eating, getting dressed, and taking care of her home. Defendant was often crying and her weight dropped dramatically. Defendant also discontinued most of her social activities.

Defendant testified that in late May 1983, she stopped functioning “as a person.” She felt there was no purpose to her life and would not get out of bed. For her children’s sake, defendant tried to remain in control. For several weeks in July, she worked as a receptionist for a local eye doctor to pay off her bill. However, she struggled to do this job because of her preoccupation with York.

York testified that on June 29, 1983, he spent the night with defendant and they discussed her possible pregnancy. York also stated that following the last night they spent together, which defendant testified was July 2, 1983, he laughed at defendant, called her a “fool,” and told her he had no intention of coming back to her. York testified that on the morning of July 7, defendant came to see him and told him that she had made arrangements for a pregnancy examination in Terre Haute, Indiana, the next day and wanted York to accompany her. York at first agreed, but reneged after defendant said she would shoot him and his new girlfriend, Joyce Guyer, if she saw them together. Defendant also told York that if she could never have him, no one would. York testified that when he was living with defendant she carried a gun in her purse at all times.

Defendant denied ever making any threats to York, although she admitted speaking to him on July 7 regarding her pregnancy examination. Also on July 7, defendant went to Joyce Guyer’s apartment with some of York’s mail. Defendant and Ms. Guyer had an altercation which resulted in defendant’s arrest for battery. Officer Bill Millsap of the Robinson police department advised defendant to stay away from Guyer and York. Although Ms. Guyer testified that defendant had threatened to shoot her and York if she saw them together, defendant denied making such a threat.

Dr. Leonard J. Green III testified that he examined defendant on July 8, 1983. Defendant wanted to have a prior tubal ligation “undone” to enable her to have another child. The tubal ligation had been performed in August 1974, and defendant had her right ovary removed. Dr. Green’s examination revealed no physical abnormalities.

Between July 7 and 20, defendant made numerous calls to York at the Saloon Tavern. York took some of the calls, during which defendant would cry and talk of her heartbreak. York thought defendant sounded sad, “like she had lost a great love.” York stated that during the time he lived with defendant, she never visited any psychologist or psychiatrist. York described defendant as a rational and very understanding woman with a normal temper. York admitted, however, that during defendant’s first trial in 1984, which ended in a mistrial, he had testified that defendant behaved irrationally on occasion.

Connie Siebeck testified that on July 21, 1983, she and defendant talked about defendant’s emotional upset over her break-up with York, and later Ms. Siebeck invited defendant to go to the Saloon Tavern with her. At the tavern, defendant did not laugh or talk much, although there were conversations going on around her. When Ms. Siebeck left around 6 p.m., she tried to get defendant to go with her and was concerned because defendant talked as if York was at the tavern when he had already left. Ms. Siebeck stated that defendant never threatened to harm York during any of their conversations.

Karen Phillippe, the bartender at the tavern on July 21, 1983, testified that defendant was seated at the bar when she arrived at 4 p.m. Defendant remained at the bar until the shooting. Between 4 and 7 p.m., Ms. Phillippe spent most of her time on a bar stool across from defendant. Defendant told Ms. Phillippe she was not drinking heavily because she thought she was pregnant with York’s child. Ms. Phillippe stated that defendant was “laughing and talking and seemed like she was really in good spirits.”

Donald Gregory, who was celebrating his birthday at the tavern on July 21, testified that he sat next to defendant at the bar and that defendant talked, laughed, and joked with him. Gregory also stated that defendant asked him to help her fix a storm door at her house and they arranged a date for the repair work. Barbara Pethel testified that when defendant first approached her table and asked if York had left with “that broad,” defendant’s voice was “normal” but she sounded as if she were angry.

Billy J. Carrico, a deputy sheriff in Crawford County on July 21, 1983, testified that about 11 p.m. the dispatcher received a telephone call regarding a shooting at the tavern. Shortly thereafter, defendant came in the back door of the jail, walked into the radio operator’s room, and sat down at a desk. Carrico spoke to defendant several times and asked if he could do anything for her but received no response. Defendant sat perfectly still with her hands on the desk, looked directly ahead, and took no notice of Carrico or the radio operator. Carrico removed defendant’s purse from her reach and saw a gun inside it. He noticed that she was trembling and shaking, and when he checked her forehead it was moist and cool. Carrico decided that defendant was exhibiting symptoms of shock and catatonia so he requested that the radio dispatcher call for an ambulance.

Carrico further testified that when he and the ambulance attendant laid defendant on a stretcher, she began to physically resist them and to talk about her children and a ball game. Officer Millsap came into the room and defendant recognized him. Millsap read defendant her Miranda rights, placed her under arrest, and questioned her about the incident at the tavern. Defendant told Millsap that she had not seen or bothered “the girl,” according to Millsap’s advice, and continued to talk about her children and the ball game.

Harietta Hunnicutt, the wife of the Crawford County sheriff, testified that she was present when defendant entered the county jail. Ms. Hunnicutt described defendant as “very unresponsive,” stating that defendant made no response when Carrico spoke to her, stared into space, and did not appear aware that anyone else was there. Defendant did speak with Officer Millsap and told him, “I did what you told me to. I stayed away.” Ms. Hunnicutt went to the Crawford County Memorial Hospital with defendant and remained with her until she was placed in a hospital room for the night. In the emergency room, defendant seemed “very disoriented” and repeatedly said she needed to pick up her children at the park. Ms. Hunnicutt did not recall defendant saying it was midnight or curfew, asking a nurse to call her sister, calling her sister by name, or saying that she had to check on her boyfriend.

William G. Millsap, a former police officer for the City of Robinson, Illinois, testified that at 11:15 p.m. on July 21, 1983, he went to the Crawford County jail, where he saw defendant. Defendant recognized him and called him by name. Millsap arrested defendant and read her the Miranda rights. Defendant mentioned ball games and stated that she was worried about her children being in at curfew. Millsap went to the emergency room, where defendant made statements that she was afraid her former husband, Doug Camden, would take her children away from her. Millsap testified that defendant said, “I hate to do it, but contact Doug and have him take care of the girls.” Defendant also stated more than once that it was midnight and time for her and her boys to be home. Millsap admitted having previously told defendant that it was a quarter till 12. Defendant told Millsap that she remembered they had talked and that she had not gone to “Joyce’s place” because he had told defendant she should not. Millsap confirmed that he and defendant had such a talk regarding Joyce Guyer on July 7.

Millsap further testified that when he asked defendant who her boyfriend was, she replied that she did not have one. She then said that she wanted to see how he was. In response to Millsap’s questions, defendant said she had not been close to a tavern, that she had been to a ball game, and that she could not drink at a ball game. Defendant asked Millsap if he had contacted her sister, Pam Brashear, and gave him her telephone number. When Ms. Brashear arrived, she and defendant were happy to see each other and hugged. Defendant stated that she did not know why she was in the hospital.

Pam Brashear testified that after learning of the shooting she went to the hospital around 12:30 a.m. Defendant was sitting on the examining table and was saying that she had to go to the ballpark to get her children. Ms. Brashear tried to hold defendant, but defendant did not seem to know her and tried to get off the table. Ms. Brashear blocked defendant’s path, and defendant was held and given an injection. Ms. Brashear tried to get defendant to realize where she was, but defendant continued to talk about the ballpark. Ms. Brashear stated that the two had been to the ballpark the previous night. Ms. Brashear admitted that at the trial in 1984, she had testified that defendant did recognize her and had stated, “It looks like a hospital,” and had asked why she was there.

Mary Jane Parker testified that she was on duty as a registered nurse when defendant was brought into the emergency room. Defendant entered the hospital leaning on Officer Millsap and crying. Ms. Parker stated that defendant did not seem very rational. Defendant repeatedly said that she thought she had to leave to get her children from a ball game. Ms. Parker did not remember defendant saying that it was midnight or curfew, that she had to check on her boyfriend, or that she had asked someone to call her sister. At the previous trial, Ms. Parker testified that defendant recognized her sister Pam and called her by name, but Ms. Parker did not recall that when testifying in 1989.

Cheryl Wartsbaugh, a floor nurse on duty when defendant was admitted to the hospital, testified that defendant appeared very confused, disoriented to time and place, and out of touch with reality. Defendant continually tried to leave, repeating that she had to pick up her son at a ball game and get home because the other children were home alone.

Defendant testified that her memory of the evening of July 21, 1983, was fragmented. She recalled that Connie Siebeck had asked her to go to a party at the Saloon Tavern, but she did not remember where she sat at the tavern or whether she moved about after arriving. Defendant remembered looking into the mirror behind the bar and seeing York laughing at her. Defendant also recalled wanting to go home. Her last memory at the tavern was of seeing York’s face in the mirror with the faces of her two dead husbands circling it and all of them laughing at her. Defendant could next remember “door locks going down” in a car, someone taking a picture, and someone changing her clothes. Defendant did not recall being at the hospital. Her next clear memory was of leaving for Michigan about a week after the incident to visit her mother. Defendant stated that from the end of August until just before Christmas 1983, she stayed at an alcohol and drug rehabilitation center in Charleston, Illinois. While at the center, she saw Dr. Jerry Boyd, a psychologist. Defendant attended Alcoholics Anonymous meetings approximately three times a week for SVa years. Defendant further stated that she saw a counselor at the Southeastern Mental Health Clinic for over a year and was treated for extreme anxiety and depression by Dr. Harrison at the Weber Clinic in Olney.

Dr. Michael Phillippe, the emergency room physician who treated defendant, testified that when he first saw her, she was “combative and distraught.” Defendant’s thought process was disorganized, and she did not know the time or where she was. For an hour and 15 minutes, Dr. Phillippe tried to get defendant’s medical history, but she continually talked about being at a baseball game. The only person she recognized was Officer Millsap. Dr. Phillippe did not recall that defendant had given Millsap her sister’s telephone number and asked him to call, that defendant had said she had to check on her boyfriend, or that she had recognized her sister and hugged her. Dr. Phillippe’s medical opinion was that defendant was in “an acute psychotic state,” wherein she was completely separated from reality. Dr. Phillippe opined that defendant was an acute psychotic two to three hours before he examined her at 12:10 a.m., and he believed that defendant “could not purposely intend to do anything.” A nurse administered Thorazine, an antipsychotic drug, and Valium at Dr. Phillippe’s direction. Dr. Phillippe did not think defendant was sane at the time of the offense, according to the statutory definition of sanity read to him at trial. Dr. Phillippe admitted on cross-examination that defendant’s appearance at the jail five to seven minutes after the shooting showed that she was able at that time to appreciate the criminality of her act.

Dr. Dean Pelley, defendant’s doctor since 1973, testified that he saw defendant at the hospital at around 8 a.m. on July 22, 1983. Defendant’s vital signs were normal. Dr. Pelley stated that defendant was coherent and he believed she was oriented to time, place, and person. Dr. Pelley stated that defendant was not suicidal, but was worried that her ex-husband would want custody of her children. The doctor discharged defendant that morning.

Dr. Eugene L. Ringuette, a clinical psychologist, examined defendant on July 24, 1983. Dr. Ringuette obtained a history from defendant and interviewed both her mother and sister. The doctor administered several assessment techniques, including the Rorschach Technique, which combines subjective and objective analysis. Defendant’s responses indicated a seriously disturbed person who was then exerting great effort to maintain control of her thoughts and feelings. Dr. Ringuette also administered the Minnesota Multiphasic Personality Inventory (MMPI), a test to assess mental disorders. Defendant’s test results showed “significant elevations” in the areas measuring depressive feelings, thoughts and behaviors, negative feelings of self-worth, paranoid ideas, and a confusion about events and general anxiety about life.

Based upon his testing and interpretations, Dr. Ringuette determined that defendant “was at best borderline psychotic.” The doctor described defendant as a person with a long-term disorder showing “periodic psychotic episodes during the course of a lifetime.” Such a person maintains a satisfactory or marginal adjustment to the world and other people most of his or her life, but for certain periods the person will show significant loss of contact with reality and behave dramatically. Dr. Ringuette stated that these periods could last a matter of days or weeks and termed defendant’s disorder “chronic schizophrenic dillusional [sic] paranoid.”

Dr. Ringuette further testified that his diagnosis, based on the tests he performed, was “brief reactive psychosis,” meaning that a mental disorder is present, it is psychotic in severity, and it appears to be of less than two weeks’ duration. Dr. Ringuette estimated that the condition began one or two days prior to the shooting. The doctor believed defendant could be capable of acting rationally for periods of time on the night of the shooting, stating that a person can be oriented to time, place, and person and still be grossly psychotic. Dr. Ringuette opined that defendant’s condition existed prior to the shooting and that defendant was incapable of forming a criminal “intent” as defined by defense counsel. Dr. Ringuette therefore believed that under the statutory definition of insanity given at trial, defendant was not sane at the time of the occurrence. The doctor stated that the fact Julia had gone to the jail after the shooting was not inconsistent with his diagnosis, but admitted that such behavior showed defendant appreciated the criminality of her act at the time she “turned herself in.”

Defendant argues that the evidence relied upon by the State failed to establish her sanity at the time of the crime beyond a reasonable doubt. Defendant contends that none of the occurrence witnesses gave an opinion as to her mental state and that those who saw her immediately after the shooting, with the exception of Officer Millsap, recalled defendant being incoherent. Defendant argues that the jury’s finding as to defendant’s sanity is against the manifest weight of the evidence where Dr. Phillippe saw defendant approximately one hour after the shooting and believed that she could not have formed an intent and was insane at the time of the incident and Dr. Ringuette examined her two days later and was of the same opinion.

However, after considering the record, we conclude that the evidence presented at trial supports the jury’s finding that the State satisfied its burden of proving that defendant was sane at the time of the offense. In meeting its burden of proving defendant sane beyond a reasonable doubt, the State is not required to produce expert testimony (People v. Skorka (1986), 147 Ill. App. 3d 976, 981, 498 N.E.2d 607, 611), but may rely on facts in evidence and the inferences which the trier of fact may draw therefrom. (People v. Marshall (1983), 114 Ill. App. 3d 217, 226, 448 N.E.2d 969, 975.) Further, the trier of fact may reject expert testimony that a defendant was insane at the time of the offense and conclude that the defendant was sane based solely on lay testimony. Skorka, 147 Ill. App. 3d at 981, 498 N.E.2d at 611; People v. Moore (1987), 159 Ill. App. 3d 850, 857, 513 N.E.2d 24, 28.

Here, although Drs. Phillippe and Ringuette opined that defendant was insane at the time of the offense, they also testified that defendant appreciated the criminality of her act when, immediately after the shooting, she walked to the county jail. Additionally, there was occurrence witness testimony that defendant was laughing and appeared to be in good spirits at the tavern and that when defendant asked Barbara Pethel if York had left with a woman, she sounded normal but was angry. Officer Millsap testified that shortly after the shooting, defendant was able to recognize him, was able to answer his questions, knew what time it was, and worried that her ex-husband would get custody of her daughters. Millsap also testified that defendant asked to see how her boyfriend was doing and requested that Millsap call her sister, giving him her telephone number. Further, both York and Joyce Guyer testified that previous to the night of the shooting, defendant had threatened to shoot them if she ever saw them together. Hence, there was sufficient evidence of defendant’s sanity to allow the jury to reject defendant’s insanity defense and find her guilty but mentally ill. (See Ill. Rev. Stat. 1981, ch. 38, pars. 6 — 2(c), (d).) The State therefore sustained its burden of proving defendant’s sanity.

Defendant next contends that the trial court erred in denying her motion for mistrial following testimony by Dr. Pelley which violated the court’s in limine order. During the trial, defendant filed a motion to bar the testimony of Dr. Pelley, a treating physician, because the State had conducted an ex parte interview without the consent of defendant or her counsel. (See Ill. Rev. Stat. 1989, ch. 110, par. 8— 802; Mondelli v. Checker Taxi Co. (1990), 197 Ill. App. 3d 258, 265-66, 554 N.E.2d 266, 270.) The trial court ruled that Dr. Pelley’s testimony would be limited to what had been disclosed by defense counsel in the doctor’s written report.

Dr. Pelley testified for the State in rebuttal. The doctor stated that he saw defendant at the hospital on the morning after the shooting. Dr. Pelley characterized defendant as “depressed and quiet,” but found her coherent and not suicidal. The doctor further testified that defendant was concerned about her ex-husband getting custody of their children. In Dr. Pelley’s opinion, defendant was oriented to time, place, and person.

Defense counsel raised no objections during Dr. Pelley’s testimony. Counsel declined to cross-examine Dr. Pelley and immediately requested that the court hear a motion out of the jury’s presence. Defense counsel then requested a mistrial because Dr. Pelley had testified beyond the scope of his report regarding defendant’s orientation as to time, place, and person; her nonsuicidal temperament; and her concern about her ex-husband getting custody. The trial court denied defendant’s motion, stating:

“If the defense counsel chooses to gamble by not objecting, they take the risk of waiving their point. Failure to raise it at any time or in any fashion, not having been provided with a copy of the report to follow his testimony with, I assumed that counsel knew what the scope of it was, and there being no objection, I assumed that that was within the scope of the report, or that defense counsel had chosen to allow him to vary somewhat from the Court’s directive.”

Defendant argues that the trial court abused its discretion by concluding that counsel had waived the issue by failing to object during Dr. Pelley’s testimony, without considering whether a mistrial was warranted. The trial court has broad discretion to determine the propriety of declaring a mistrial (People v. Hall (1986), 114 Ill. 2d 376, 405, 499 N.E.2d 1335, 1346, cert. denied (1987), 480 U.S. 951, 94 L. Ed. 2d 802, 107 S. Ct. 1618), and this option should be exercised only when, in the court’s opinion, there is a manifest necessity for it or where the ends of justice would be defeated by continuing the trial. People v. Roberts (1980), 83 Ill. App. 3d 311, 316, 404 N.E.2d 278, 283.

“Failure to make proper and timely objection to the admission of evidence claimed to be incompetent or otherwise objectionable or to move to strike it out after its admission *** generally constitutes a waiver of the right to object and cures the error, if any.” (People v. Trefonas (1956), 9 Ill. 2d 92, 98, 136 N.E.2d 817, 820.) Defendant contends that her prior motion to bar the testimony of Dr. Pelley was sufficient to constitute a timely objection and that defense counsel’s failure to object during the testimony was a matter of strategy so that the improper evidence would not be emphasized before the jury. However, by failing to raise a contemporaneous objection, defendant deprived the trial court of the opportunity to give the jury a timely instruction or admonishment regarding the improper testimony. Instead, defense counsel waited until the testimony was completed to request a mistrial, and did not request that the testimony be stricken until after the jury instruction conference when the jury had been in recess for some time.

In People v. Rivera (1989), 182 Ill. App. 3d 33, 537 N.E.2d 924, the defendant similarly contended that his motion for mistrial was improperly denied after a witness testified in violation of the trial court’s prior ruling on his motion in limine. In Rivera, the objectionable testimony occurred during defense counsel’s cross-examination of the witness. Defense counsel did not object but decided against further inquiry into the matter. It was not until after two additional witnesses had testified that the defendant made a motion for mistrial. In reviewing this issue on appeal, the Rivera court stated:

“It is the general rule that objections must be timely; otherwise, any error is waived. [Citation.] There seems no reason why the same rule should not apply to motions for a mistrial. The court could have corrected any error by instructing the jury to disregard the answer. No request for such an instruction was made. Any possible error, therefore, was waived.” (182 Ill. App. 3d at 38, 537 N.E.2d at 928.)

We also see no reason why the waiver rule should not apply here. See Perez v. Hartmann (1989), 187 Ill. App. 3d 1098, 1104-05, 543 N.E.2d 1023, 1027.

In order to establish the necessity for a mistrial, it must appear that the jury has been so influenced and prejudiced that it would not, or could not, be fair and impartial and the damaging effect of the evidence cannot be remedied by admonitions or instructions. (People v. Winfield (1983), 113 Ill. App. 3d 818, 839, 447 N.E.2d 1029, 1046.) Here, defendant does not argue that the damage could not have been remedied by an instruction to disregard it; nor do we believe this to be the case. Dr. Pelley did not give an opinion as to defendant’s sanity at the time of the shooting, and the jury knew that his examination of defendant was made the following day and that defendant had received antipsychotic drugs during the interim. Thus, waiver aside, we do not believe defendant has shown the necessity for a mistrial, and the trial court’s refusal to grant a mistrial was therefore not an abuse of discretion.

Defendant’s third contention of error concerns the trial court’s giving of the second paragraph of the instruction defining insanity. Defense counsel tendered Illinois Pattern Jury Instructions, Criminal, No. 24 — 25.01 (2d ed. Supp. 1989) (hereinafter IPI Criminal 2d No. 24 — 25.01 (Supp. 1989)), which reads, in its entirety, as follows:

“A person is insane and not criminally responsible for his conduct if at the time of the conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.
Abnormality manifested only by repeated criminal, or otherwise anti-social [sic] conduct, [sic] is not mental disease or mental defect.”

At the conference on jury instructions, the State argued that the second paragraph should be included and defendant objected, arguing, as she does on appeal, that there was insufficient evidence of repeated criminal or otherwise antisocial conduct to warrant inclusion of the second paragraph. In rejecting defendant’s contentions, the trial court stated:

“There is certainly evidence *** of conduct which could be characterized as technically criminal, whether or not there were charges filed. I don’t see any room to argue that anti-social [sic], as meant by the instruction, means reclusive or peculiar or even eccentric. I think they’re talking about anti-social [sic] in the sense of being against society, rather than really not participating in the same manner as anybody else.
So, I do not look at [defendant’s] drinking habits, for example, as being anti-social [sic], but we have the various altercations with other people, the threats which are alleged to have been made, *** the apparently daily carrying of a weapon, which the last time I looked was illegal.
This instruction does not tell the jury that they can’t find her insane. It just says that if they’re going to find her insane, they have to find something other than these acts, and we certainly have plenty of evidence *** of other things to support the insanity verdict.”

The committee notes for this instruction indicate that the second paragraph is to be given “only when the evidence shows repeated criminal or other anti-social [sic] conduct.” (IPI Criminal 2d No. 24— 25.01, Committee Notes, at 288 (Supp. 1989).) As the parties observe, there is little case law concerning this point. In People v. Fierer (1988), 124 Ill. 2d 176, 529 N.E.2d 972, the Illinois Supreme Court held that the trial court erred in giving the second paragraph of this instruction where there was absolutely no evidence of criminal or antisocial conduct. Instead, the court found that where the defendant had a long history of academic and professional achievement and no record of illegal or antisocial conduct, “the explicit prerequisite for the instruction was absent.” (124 Ill. 2d at 192, 529 N.E.2d at 978.) In People v. Foster (1976), 43 Ill. App. 3d 490, 356 N.E.2d 1288, this court affirmed the giving of the second paragraph where the evidence showed that the defendant had been arrested numerous times for intoxication, assaulted his wife, and attempted to jump out of a moving automobile.

Although the facts of the instant case fall somewhere between Fierer and Foster, we believe the record shows sufficient evidence of repeated criminal or antisocial conduct to warrant giving the entire instruction. As the trial court noted in making its ruling, the jury had heard testimony concerning: defendant’s prior arrest for the battery of Joyce Guyer, a January 1982 altercation between defendant and another woman resulting in defendant’s broken leg, defendant’s threats to shoot Guyer and York, and defendant’s own admission that she always carried a gun in her purse. Given this evidence, we cannot say that the trial court erred in giving the second paragraph of the instruction.

Defendant further asserts that she was denied a fair trial due to the improper closing argument of the prosecutor. Specifically, defendant contends that the prosecutor’s repeated references to defendant’s expert witness, Dr. Ringuette, as a “so-called” expert, his comments that Dr. Ringuette was paid to create a defense, and his misstatement of the evidence denied defendant a fair trial. We disagree.

It is well established that prosecutors are afforded wide latitude in closing argument, and absent clear abuse of discretion, a trial court’s determination as to the propriety of such arguments will not be disturbed on review. Even improper remarks will not result in a reversal of a defendant’s conviction unless they represent a material factor in that conviction. People v. Sheppard (1990), 193 Ill. App. 3d 401, 403, 549 N.E.2d 968, 972-73; see also People v. Thompkins (1988), 121 Ill. 2d 401, 445-46, 521 N.E.2d 38, 57, cert. denied (1988), 488 U.S. 871,102 L. Ed. 2d 156, 109 S. Ct. 187.

Initially, we note that defendant failed to object either at trial or in a post-trial motion to the improprieties in the prosecutor’s closing argument alleged on appeal. Defendant therefore has waived any possible objections. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274; Collins, 106 Ill. 2d at 275, 478 N.E.2d at 283.) Defendant acknowledges this fact but argues that, collectively, the prosecutor’s comments constituted plain error. See 134 Ill. 2d R. 615(a).

In People v. Walton (1990), 199 Ill. App. 3d 341, 345-46, 556 N.E.2d 892, 895, the court stated:

“Once again, this court is presented with a claim by defendant’s counsel on appeal that the prosecutor’s closing argument was egregiously improper, yet defendant’s counsel at trial (whom the record shows presented a strong defense by vigorously cross-examining the State’s witnesses, calling witnesses for the defense, and filing several pre-trial motions seeking to restrict the presentation of incriminating evidence) made not one objection to any of that allegedly improper argument. We are of the opinion that the constraints of the plain error rule should be strictly applied under such circumstances. To hold otherwise would be to place a tactical benefit on defense counsel’s silence during an allegedly improper closing argument because counsel would know that the courts of review would consider the issue despite no objections being made. In our view, improper closing arguments (if objected to) are among the easiest of errors for the trial courts to correct.” (Emphasis in original.)

Therefore, under a strict application of the plain error doctrine, defendant’s conviction may be reversed only upon a showing that the alleged errors affect substantial rights or were sufficiently prejudicial to deny the defendant a fair trial. People v. Nevitt (1990), 135 Ill. 2d 423, 448, 553 N.E.2d 368, 378.

Defendant first complains that the prosecution denied defendant a fair trial by making “prejudicial remarks regarding a key defense witness and the defense presented.” Defendant argues that since her witness, Dr. Ringuette, had been certified as an expert, it was error to refer to him as a “so-called” expert. However, viewing the prosecutor’s closing argument as a whole, it appears that the prosecutor used the witness’ professional title, Dr. Ringuette, many more times than he referred to the witness as a “so-called” expert. Further, as the State suggests, while Dr. Ringuette had been certified as an expert, such a designation does not mean that the jury must accept his expert opinion. It is proper in closing argument to comment on the credibility of a witness. (People v. Richardson (1988), 123 Ill. 2d 322, 356, 528 N.E.2d 612, 625, cert. denied (1989), 489 U.S. 1100, 103 L. Ed. 2d 943, 109 S. Ct. 1577.) Here, therefore, it was not improper for the prosecutor to attempt to cast doubt on Dr. Ringuette’s expert opinion.

However, we agree with defendant that the prosecutor’s comments that Dr. Ringuette was paid to “create” an insanity defense and that his opinion regarding defendant’s sanity was a “smoke screen” exceeded the bounds of fair argument. Nevertheless, while remarks of this nature have been held to be improper (People v. Wilson (1983), 120 Ill. App. 3d 950, 458 N.E.2d 1081; People v. Starks (1983), 116 Ill. App. 3d 384, 451 N.E.2d 1298), and are not to be condoned, they are generally considered nonprejudicial. (People v. Hunter (1984), 124 Ill. App. 3d 516, 548, 464 N.E.2d 659, 684; see also People v. Robinson (1980), 91 Ill. App. 3d 1138, 1145-46, 415 N.E.2d 585, 591.) It is our view that the remarks made in the instant case were not plain error where they were not so inflammatory that the jury could not render a fair and impartial verdict.

Defendant argues that the prosecutor further erred in misstating the testimony of Drs. Ringuette and Phillippe. Defendant asserts the prosecutor incorrectly argued that Dr. Ringuette had agreed defendant could conform her conduct to the requirements of the law because she shot at a single target, York, rather than firing indiscriminately into the crowd. While Dr. Ringuette did testify that defendant’s act of turning herself in showed that she appreciated the criminality of her actions at the time, he did not so testify with regard to the single target theory. However, considering the prosecutor’s closing argument as a whole, we do not believe defendant was substantially prejudiced by this misstatement.

The prosecutor’s comments regarding Dr. Ringuette’s and Dr. Phillippe’s testimony were part of the State’s argument that defendant’s sanity could not drastically change in the five to seven minutes it took her to walk from the scene of the crime to the jail. The fact that both Dr. Ringuette and Dr. Phillippe had agreed that defendant could appreciate the criminality of her conduct at the time she reached the jail supported this theory. Thus, the prosecutor’s characterization of Dr. Phillippe’s agreement as a retraction of his earlier opinion that defendant was insane is a fair inference to be drawn from the evidence. (See People v. Reyes (1981), 102 Ill. App. 3d 820, 833, 429 N.E.2d 1277, 1288.) Moreover, because the trial court instructed the jury that closing arguments are not evidence, any error resulting from the prosecutor’s remarks was cured by the court’s instruction. See People v. Howard (1991), 209 Ill. App. 3d 159, 182, 568 N.E.2d 56, 70.

Although none of the complained-of statements, singly or collectively, constitute plain error, defendant alternatively argues that the failure of defense counsel to preserve the errors denied her the effective assistance of counsel. However, assuming arguendo that all of the prosecutor’s comments were improper, defense counsel’s failure to object to them was not so serious as to deprive defendant of a fair trial, a trial whose result is reliable. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; see also Sheppard, 193 Ill. App. 3d at 404, 549 N.E.2d at 973 (defense counsel’s failure to preserve issue of prosecutor’s improper closing argument, when considered in the context of counsel’s overall performance, did not prejudice defendant or affect the outcome of his trial).) The prosecutor’s comments here were simply not reversible error.

Finally, defendant contends that her convictions for aggravated battery must be vacated as these charges were used as the predicate offense for the charge of armed violence. In support thereof, .defendant cites People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477, which held that multiple convictions for both armed violence and the underlying felony of aggravated battery could not stand where a single physical act was the basis for both charges. The State agrees that Donaldson is dispositive and urges that we vacate the convictions. Therefore, we direct that defendant’s two convictions for aggravated battery be vacated. The trial court entered judgment on both the aggravated battery and armed violence verdict, but imposed sentence on the latter charge only. Since defendant raises no question with regard to the propriety of that sentence, a remandment for resentencing is unnecessary.

For the foregoing reasons, defendant’s armed violence conviction is affirmed, but her aggravated battery convictions are vacated.

Affirmed in part; vacated in part.

WELCH and HOWERTON, JJ., concur.


author: JUSTICE LEWIS JUSTICE CHAPMAN,

text:
    VIRGINIA I. CRAIG, Plaintiff-Appellee and Cross-Appellant, v. CITICORP SAVINGS, Defendant-Appellant and Cross-Appellee.
    Fifth District
    No. 5—89—0801
    Opinion filed September 11, 1991.
    CHAPMAN, J., concurring in part and dissenting in part.
    Carl L. Favreau, of Campbell, Black, Camine & Hedin, P.C., of Mt. Vernon, for appellant.
    Daniel R. Price and Jennifer W. Price, both of Wham & Wham, of Centraba, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

The plaintiff, Virginia Craig, brought suit against the defendant, Citicorp Savings, in two counts, the first pertaining to the defendant’s refusal to pay principal and interest on a certificate of deposit issued in plaintiff’s name, the second for conversion. The defendant refused to pay on the basis that the plaintiff had paid no consideration for the certificate and that the certificate was issued in her name by mistake. The trial court granted the plaintiff’s motion for summary judgment and denied the defendant’s motion to reconsider the ruling granting summary judgment; the defendant has appealed. The trial court granted the defendant’s motion to dismiss the second count of the complaint, allowing plaintiff leave to amend. However, the plaintiff filed a notice of intention to stand on the second count of her complaint, the trial court entered judgment dismissing that count with prejudice, and plaintiff has cross-appealed.

The defendant presents a single issue for review, whether the trial court improperly granted summary judgment and improperly denied defendant’s motion to reconsider that ruling. Section 2 — 1005(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c)) provides that summary judgment shall be rendered “if the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In making the determination whether there is a genuine issue as to any material fact, the court must construe the pleadings, depositions, and affidavits most strictly against the moving party and most liberally in favor of the opponent. (Martin v. American Legion Post No. 784 (1978), 66 Ill. App. 3d 116, 383 N.E.2d 672.) Where the facts admit of more than one conclusion, including a conclusion unfavorable to the party moving for summary judgment, such facts cannot support a motion for summary judgment. (Martin, 66 Ill. App. 3d 116, 383 N.E.2d 672.) In determining whether there is a genuine issue of material fact, inferences may be drawn from the facts that are not in dispute. (Riley v. Singer (1979), 75 Ill. App. 3d 1036, 394 N.E.2d 746.) If fair-minded persons could draw different inferences from the facts, a triable issue exists and a motion for summary judgment must be denied. (Riley, 75 Ill. App. 3d 1036, 394 N.E.2d 746.) It is only when the undisputed facts are susceptible of but a single inference that the issue becomes one of law. (Riley, 75 Ill. App. 3d 1036, 394 N.E.2d 746.) Although there is no dispute in the evidence, if reasonable persons could draw different conclusions from the undisputed evidence, summary judgment should not be entered. (Martin v. Hertz Corp. (1982), 104 Ill. App. 3d 592, 432 N.E.2d 1262.) If the court is presented with any set of facts about which reasonable men might disagree, summary judgment should be denied. (Lesser v. Village of Mundelein (1975), 36 Ill. App. 3d 433, 344 N.E.2d 29.) The right of a moving party to obtain a summary judgment must be clear and free from doubt. (Manahan v. Daily News-Tribune (1977), 50 Ill. App. 3d 9, 365 N.E.2d 1045.) The purpose of a summary judgment proceeding is not to try an issue of fact but, rather, to determine whether there is an issue of fact to be tried. (Beverly Bank v. Alsip Bank (1982), 106 Ill. App. 3d 1012, 436 N.E.2d 598.) The summary judgment procedure may not be used to try any issue; it is not a modified trial procedure. (Manahan, 50 Ill. App. 3d 9, 365 N.E.2d 1045.) The function of a jury is to decide disputed issues of fact. (Diversey Liquidating Corp. v. Neunkirchen (1939), 370 Ill. 523, 19 N.E.2d 363.) Where no such issue is presented, there can be no denial of the right to a jury trial. Diversey, 370 Ill. 523, 19 N.E.2d 363.

In her motion for summary judgment, the plaintiff asserted that “[tjhere is no legitimate defense that has been or can be raised by Defendant as to the effect of the certificate of deposit they have admittedly issued. There is no competent evidence supporting Defendant’s contention the certificate of deposit was issued in error or that it was issued without any consideration.”

It is undisputed that on March 31, 1987, the defendant issued a one-year certificate, a copy of which is attached as exhibit “A” to both the plaintiff’s complaint and her motion for summary judgment, in the name of Virginia I. Craig, specifying an opening balance of $21,000 with an initial rate of earnings of 5.93% per annum and an initial maturity date of March 31, 1988. The account number appearing on the certificate is 66 — 80—0000009. On the back of the certificate is the statement, “This certifies that the Accountholder holds a savings account with the terms as shown herein in Citicorp Savings.” Also attached to the plaintiff’s motion for summary judgment is the discovery deposition of David C. White, who stated that at the time in question he worked for the defendant, opening new accounts, and that the signature on the certificate is undisputedly his. He had known the plaintiff, he said, “probably 25 years.” She had purchased certificates of deposit in the past and at times, if she were out of town, had them mailed to her. Apparently, the day before the plaintiff sought payment on the certificate, the account had been paid out to customers of the bank named Vernon and Anna Deadmond. David White stated that an account number established on the computer in the name of Vernon Deadmond corresponded to that on the certificate in plaintiff’s name. In the motion for summary judgment, the plaintiff maintained, in reliance upon First National Bank v. Myers (1876), 83 Ill. 507, that a certificate of deposit is evidence of so high and satisfactory a character as to the sum deposited that, to escape its effect, the maker must overcome it by clear and convincing evidence. The plaintiff took the position that the defendant could not meet this burden and that there was no genuine issue of material fact precluding entry of summary judgment in her favor.

In its response to the plaintiff’s motion for summary judgment, the defendant admitted that the plaintiff’s case was based upon a failure to pay a certificate of deposit issued by the defendant. The defendant denied that no legitimate defense has been or even can be raised “as I.R.S. Ch. 17, Sec. 610 and Ch. 110, Sec. 613(d) provide for defenses of lack of consideration and Exhibits B-E all support such' a defense and it is a question for the jury as to whether such evidence is clear and convincing.”

Exhibit “A” of the defendant’s response consisted of certain pages of the plaintiff’s discovery deposition taken on July 21, 1988, in which she stated that “[n]ot to this date” had she found statements pertaining to the account in question. She did recall having been in the defendant’s bank on March 31, 1987, but had no specific recollection of depositing $21,000 with the defendant on that day. Asked, “Do you recall signing any new account forms to open an account on March 31 of 1987?” the plaintiff answered, “I am not sure.” Asked further, “Now you said there should be a canceled check. Have you found a canceled check for this $21,000?” the plaintiff responded, “Not at this point in time.” Plaintiff stated that she might have “walked in with part of” $21,000 in cash to open the account but “not that much.” Queried further, “As you sit here today, do you have any documentation whatsoever from any source as to the nature of the funds that went into this CD allegedly on March 31 of ‘87?” the plaintiff answered, “Not at this time.”

Exhibit “B” attached to the defendant’s response contained certain pages of David White’s discovery deposition, also taken on July 21, 1988, in which he stated that he had not found a deposit slip or his copy of a receipt for money given or received by the plaintiff. He said that he had searched for records in an attempt to locate the plaintiff’s money for the certificate but had never found anything.

Exhibit “C” attached to the defendant’s response was comprised of pages of the discovery deposition of Janet Conant, one of defendant’s employees, taken on January 11, 1989. This witness stated that she had done “[ejxtensive checking” concerning this matter, specifically that “[w]e checked through our CRT. We checked in the fiche. We checked in all of our bank records. We checked for signature cards. We checked for, you know, account sheets. We checked for deposit tickets, for the check that she supposedly would have brought in to open this account.” The witness said that a search of the computer records had been made. No indication of the existence of the certificate in question had been found. A search of the plaintiff’s bank accounts had been made in an attempt “to look through her history to see if there was anything that corresponded with this amount, this time frame, anything that we could place, you know, that could be this certificate,” including “[a]ny check that she brought in, any money that she brought in, any certificate that, perhaps, matured and she might have renewed, anything that we could find.” No records were found of plaintiff’s “bringing that money in” or of the issuance of the certificate. Normally, the witness said, copies are kept when a certificate of deposit is issued, but none were found pertaining to the certificate in question.

Exhibit “D” of defendant’s response consisted of certain pages of the discovery deposition of Mariis Neilson, another of defendant’s employees, taken on January 11, 1989. This witness stated that the investigation conducted after the plaintiff had presented the certificate of deposit yielded nothing “whatsoever” of significance that would have indicated that plaintiff had deposited the money and nothing that was inconsistent with the Deadmonds’ having deposited the money. To the knowledge of the witness, nothing had been “lost” once it was entered in the computer. The witness considered the investigation conducted to have been as thorough as it could possibly have been.

Exhibit “E” of the defendant’s response was comprised of some pages of the discovery deposition of Mary Beck, another of defendant’s employees, taken on July 21, 1988. She described the search conducted concerning the certificate: “A search of the account numbers that were — of the new account forms that were issued during that time. We went through all new account forms that we have within that timeframe [sic] within the organization.” A new account form for the certificate of deposit was not found, nor was a signature card. No other form at all, she said, was found. The witness stated that Mrs. Conant “pulled the— as is our custom, she pulled the account number up, and it showed — had a zero balance, and she pulled up a name and address inquiry showing it in someone else’s name.”

As part of its response to the plaintiff’s request to produce, the defendant provided copies of statements pertaining to Vernon and Anna Deadmond’s account bearing the number 66 — 80—0000009. One such statement, bearing the date of April 15, 1986, indicates that on March 31, 1986, a deposit of $21,000 was made by the Deadmonds with a maturity date stated as March 31, 1987. A statement bearing the date of April 16, 1987, indicates that on March 31, 1987, a certificate of deposit in the amount of $21,000 was renewed by the Deadmonds with a new maturity date of March 31, 1988. The Deadmonds appear on March 31, 1987, to have withdrawn the amount of interest earned on that account during the preceding year.

At the hearing on the defendant’s motion to reconsider the granting of summary judgment, the trial court concluded as follows:

“I feel very comfortable in denying the Motion to Reconsider. If anyone should have to prove the negative here, it should not be the Plaintiff. It should be the Defendant. Yes, this is to some extent an evidentiary finding, but what I’m finding is that the lack of evidence of the deposit in the bank’s internal bookkeeping is not sufficient and under no circumstances could it be, even if consistant [sic] through out [sic] the bank and all of it’s [sic] various metods [sic] of record keeping could it be sufficient to overcome the presumption that that money was deposited and when it did issue that certificate of deposit until or unless it is able to prove that there is no consideration at the counter when the C.D. was issued, and there is no evidence of that.
So, I do find, and proceed to continue to find, that there was no triable issue of any substantive fact in this case, that the C.D. was legitimately issued, and that it was due when presented, and Summary Judgment on Count 1 remains.”

We think that the instant record reveals the existence of a genuine issue as to a material fact, that concerning consideration. The facts included in this record plainly admit of more than one conclusion, including one unfavorable to the plaintiff movant, and, therefore, cannot support her motion for summary judgment. Certainly fair-minded and reasonable persons could draw different inferences and conclusions from these facts. Hence, a triable issue exists. Thus, the motion for summary judgment should not have been granted, and we accordingly reverse the judgment and remand the cause for further proceedings.

Because of the disposition we make concerning the trial court’s granting of the plaintiff’s motion for summary judgment, we need not address the defendant’s contentions concerning procedural matters related to the granting of that motion.

We turn to the plaintiff’s cross-appeal, in which she asks us to determine whether the trial court erred in dismissing the second count of her complaint, that is, for conversion. A proper complaint for conversion should allege (1) an unauthorized and wrongful assumption of control, dominion, or ownership by a person over the personalty of another; (2) his right in the property; (3) his right to the immediate possession of the property, absolute and unconditional; and (4) a demand for possession thereof. Mid-America Fire & Marine Insurance Co. v. Middleton (1984), 127 Ill. App. 3d 887, 468 N.E.2d 1335.

In count II of her complaint the plaintiff alleged that the defendant had issued the certificate of deposit to her, a copy of which was attached to and made a part of the complaint as exhibit “A.” At the hearing conducted on September 5, 1989, on the defendant’s motion to reconsider the denial of its previous motion to dismiss count II, the trial court indicated that to allege properly the element of the defendant’s control over her personal property the plaintiff needed to allege “the delivery of the monies to the bank”:

“I think you need to plead that she delivered to the bank twenty-one thousand dollars because your action is for the money. The tort of converting the money. It is not for their failure to pay the note. I’m just really troubled by your just going in on the failure to pay the note and asking for punitive damages. *** I think here in Illinois you need to plead the delivery of the money to the bank too for there to be a cause of action for conversion for which you might receive punitive damages.”

The trial court concluded as follows:

“I am going to rule on this now that that note [certificate] is evidence that you made the deposit and that is what that case says and every other case that you have told me, but you haven’t plead [sic] that you made the deposit and I think you need to plead for the tort of conversion that you made the deposit and then at trial when you are called to prove that element you whip out this note and say here is the evidence that we made the deposit because for the conversion action that could maybe fall either way. I am trying to think what the appellate court is going to look at here, and I think it needs to be distinguished from the contract action. I think you need to plead the deposit of twenty-one thousand dollars at trial. Maybe that will be your only evidence, and it is a good presumption. I understand it is a real fine presumption and that is probably why I let it slide last time, but I think you need to amend that initial element of conversion that you deposited twenty-one thousand dollars.”

We note that the only relevant difference, aside from the respective prayers for relief, between the plaintiff’s amended count I for wrongful dishonor and her count II for the tort of conversion is the addition in count II of the following two paragraphs:

“7. That Defendant, Citicorp Savings, by and through its agents or employees, has acknowledged the authenticity of the certificate of deposit, and acknowledged that said certificate was issued by Defendant to the Plaintiff, Virginia I. Craig.
8. That Defendant, Citicorp Savings, has wilfully and maliciously disregarded their obligation to pay Plaintiff, Virginia I. Craig, the principle [sic] and interest due her by reason of the certificate of deposit attached hereto, and has ignored and disregarded the demands for payment of said certificate made by Plaintiff.”

The six remaining allegations of the count for conversion, which are identical to the six pertinent allegations of the count pertaining to the contract action, state as follows:

“1. At all times mentioned herein the Plaintiff, Virginia Craig, is a resident of Alma, Marion County, Illinois.
2. At all times mentioned herein, the Defendant, Citicorp Savings, a Federal Savings and Loan Association, is doing business in Kinmundy, Marion County, Illinois.
3. On or about March 31, 1987, the Defendant, Citicorp Savings, issued a certain certificate of deposit to the Plaintiff, Virginia I. Craig, in the amount of Twenty-one thousand Dollars ($21,000.00), bearing interest at the rate of 5.93% per annum compounded daily. A copy of said certificate is attached hereto as Exhibit ‘A’ and made a part hereof.
4. Said certificate matured on March 31,1988.
5. The Plaintiff, Virginia I. Craig, has presented the certificate of deposit to Defendant, Citicorp Savings, for payment and demand has been made upon defendant for full payment of the principle [sic] amount of Twenty-one thousand dollars ($21,000.00), plus the interest accrued and owing.
6. Defendant has refused and continues to refuse to make payment to the Plaintiff.”

In her brief to this court the plaintiff maintains that the incorporation of the copy of the certificate in the complaint, together with the allegation that the certificate was issued by defendant to plaintiff, sufficiently alleges “her right to these funds.” She argues that, by granting summary judgment with respect to the first count of her complaint, “the trial court has already determined plaintiff’s right to the funds. To then hold that plaintiff must produce additional evidence of her right to the funds under Count II is inconsistent.” However, we have held that plaintiff’s motion for summary judgment was erroneously granted by the trial court. Hence, the argument is not well taken. While it is true, as the plaintiff asserts, that the presence of a cause of action in contract does not preclude an action based upon a tort where both causes of action arise out of the same situation (Ledingham v. Blue Cross Plan for Hospital Care of Hospital Service Corp. (1975), 29 Ill. App. 3d 339, 330 N.E.2d 540, rev’d on other grounds (1976), 64 Ill. 2d 338, 356 N.E.2d 75), the plaintiff is nevertheless obliged to plead the cause of action in tort sufficiently. The act alleged to be a conversion must be positive and tortious but not necessarily wilful or corrupt; neither negligence nor a breach of contract, though it results in the loss of specific property, constitutes conversion. (Burge v. Englewood Motor Car & Garage Co. (1919), 213 Ill. App. 357.) We agree with the trial court that count II as written essentially alleges a wilful and malicious failure to make payment upon the certificate. Absent more, count II is insufficient to allege the tort of conversion. The trial court did not err in dismissing this count of the complaint.

The dismissal of count II of plaintiff’s complaint is affirmed.

The summary judgment granted in favor of plaintiff on count I is reversed, and this cause is remanded for further proceedings.

Affirmed in part; reversed and remanded in part.

GOLDENHERSH, J., concurs.

JUSTICE CHAPMAN,

concurring in part and dissenting in part:

I concur in the majority’s decision that plaintiff’s motion for summary judgment as to count I of plaintiff’s complaint should not have been granted, and that this cause should be reversed and remanded for further proceedings. I disagree, however, with the majority’s decision that count II fails to state a cause of action for conversion and, therefore, I dissent from that portion of its decision.

I begin by assuming that the trial court could, although it did not, have based its decision to dismiss count II on the grounds that a conversion will not lie where money is the chattel. While there are few cases dealing with the conversion of money, it has been held that money can be the subject of conversion. (See Addante v. Pompilio (1940), 303 Ill. App. 172, 25 N.E.2d 123.)

“[T]he subject of conversion is required to be an identifiable object of property of which the plaintiff was wrongfully deprived. Money may be the subject of conversion, but it must be capable of being described as a specific chattel ***.” (In re Thebus (1985), 108 Ill. 2d 255, 260, 483 N.E.2d 1258, 1260.)

Dean Prosser also provides guidance as to what may be the subject of conversion:

“Any tangible chattel could be lost and found, and so could be converted. ***
Intangible rights of all kinds could not be lost or found, and the original rule was that there could be no conversion of such property. *** The first relaxation of the rule was with respect to the conversion of a document in which intangible rights were merged, so that the one became the symbol of the other — as in the case of a promissory note, a check, a bond, a bill of lading, or a stock certificate. This was then extended to include intangible rights to which a tangible object, converted by the defendant, was highly important — as in the case of a savings bank book, an insurance policy, a tax receipt, account books, or a receipted account. In all of these cases the conversion of the tangible thing was held to include conversion of the intangible rights, and to carry damages for it.” (W. Keeton, Prosser & Keeton on Torts §15, at 90-91 (5th ed. 1984).)

In this case the certificate of deposit is obviously a tangible object similar to the insurance policy referred to by Prosser. A requisite for maintaining an action for conversion of money is that it must be shown that the money claimed, or its equivalent, at all times belonged to the plaintiff and that the defendant converted it to his own use. Thebus, 108 Ill. 2d 255, 483 N.E.2d 1258.

While the majority does not expressly suggest that money held in a certificate of deposit may not be the subject of a conversion, the disposition curtails the plaintiff’s right to plead a cause of action for conversion of money represented by a certificate of deposit. I agree with the majority that in order to plead a proper complaint for conversion one should allege (1) an unauthorized and wrongful assumption of control, dominion, or ownership by a person over the personalty of another; (2) his right in the property; (3) his right to the immediate possession of the property, absolute and unconditional; and (4) a demand for possession thereof. (219 Ill. App. 3d at 147.) Count II of plaintiff’s complaint pleads each of the four allegations. I do not believe it is necessary for plaintiff to allege “the delivery of the monies to the bank.” The essence of conversion is not the method of the acquisition by the wrongdoer but a wrongful deprivation by the alleged wrongdoer. (Andrews v. Mid-America Bank & Trust Co. (1987), 152 Ill. App. 3d 139, 142, 503 N.E.2d 1120, 1122, citing Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 932, 419 N.E.2d 578, 593.) Plaintiff has alleged a wrongful deprivation of the money held by defendant. It is not necessary for plaintiff to plead how the defendant acquired possession of the money.

I would find that the trial court erred in granting defendant’s motion to dismiss count II.