author: JUSTICE LUND

text:
    WILLIAM R. STARNES, Plaintiff-Appellant, v. INTERNATIONAL HARVESTER COMPANY et al., Defendants-Appellees.
    Fourth District
    No. 4—88—0616
    Opinion filed June 15, 1989.

      Jack A. Strellis, of Strellis, Faulbaum & Field, of Waterloo, for appellant.
    Michael P. Tone and Anne Fiedler, both of Peterson, Ross, Schloerb & Seidel, of Chicago, for appellee Robert D. Owen.
    Emily Nicklin, of Kirkland & Ellis, of Chicago, for appellee International Harvester Company.
   JUSTICE LUND

delivered the opinion of the court:

Plaintiff filed suit for libel and slander. Following motions for summary judgment, the circuit court of Sangamon County entered judgment in favor of defendants. Plaintiff appeals. We affirm.

Plaintiff William B. Starnes was the judge who presided over a lengthy and controversial product liability trial in St. Clair County. Defendant International Harvester Company (International) was the defendant in the matter, and defendant Robert D. Owen was International’s trial counsel. That cause is described in the decisions of the reviewing courts. Stambaugh v. International Harvester Co. (1982), 106 Ill. App. 3d 1, 435 N.E.2d 729, rev’d & remanded (1984), 102 Ill. 2d 250, 464 N.E.2d 1011.

The product liability trial spawned a second dispute more pertinent to this appeal. Owen considered plaintiff remiss in his role as judge presiding over the product liability trial. Owen presented allegations of impropriety to several Federal law enforcement officials, as well as the Judicial Inquiry Board of the State of Illinois. Plaintiff considered the allegations defamatory and filed this action for libel and slander. This cause has been reviewed on appeal on two prior occasions. (Owen v. Mann (1985), 105 Ill. 2d 525, 475 N.E.2d 886; Starnes v. International Harvester Co. (1986), 141 Ill. App. 3d 652, 490 N.E.2d 1062 (Starnes I).) On this appeal, plaintiff alleges two errors: (1) the trial court erred in finding that communications to Federal law enforcement officials are absolutely privileged and, therefore, immune from discovery; and (2) the trial court erred in denying plaintiff leave to file a second-amended complaint.

As this case has been discussed in the previous opinions, we will briefly review the procedural history as it relates to the questions in this appeal. Plaintiff’s original complaint, filed in 1982, consisted of two counts. Count I alleged libel through submission of written materials to members of the Department of Justice and the Judicial Inquiry Board. Count II alleged oral communications to “numerous persons.” Plaintiff’s complaint was withdrawn and refiled in substantially the same form, except the references to the Department of Justice in count I were deleted. At one point, plaintiff’s then counsel explained that the references to the Department of Justice were deleted because of a privilege attached to such communications. Emphasis was put on seeking recovery for harm to reputation caused by the material submitted to the Judicial Inquiry Board. This effort met a roadblock in Starnes I, where it was held that “communications with the [Judicial Inquiry Board] are absolutely privileged against claims of defamation so as to preclude actions for libel or slander based thereon.” (Starnes, 141 Ill. App. 3d at 659, 490 N.E.2d at 1067.) Count I was ordered dismissed, and the matter was remanded for further proceedings on count II. Our opinion in Starnes I was filed in March 1986.

Plaintiff sought leave to file a second-amended complaint in May 1987. Count I of the amended complaint substituted “the Attorney General’s office and various other agencies or persons” for the Judicial Inquiry Board. Count II again alleged slanderous statements had been made to “numerous persons.” Counts III and IV were new. Count III was a claim for invasion of privacy, and count IV added a claim for intimidation. Although the motion was filed in May 1987, the hearing was not held until December 1987. At that time, the court heard argument on several motions and set the matter on for trial in April 1988. The motions were taken under advisement. In a March 1988 letter opinion, the court denied leave to file the second-amended complaint because it was untimely and it raised new claims which would require further discovery and preparation for trial.

In further proceedings, it became apparent that the only persons plaintiff could identify as recipients of defamatory statements were Federal law enforcement officials. Plaintiff sought discovery from these Federal officials in order to ascertain the identities of other persons who may have heard or seen the statements. In April 1988, both defendants filed motions for summary judgment. In granting the motions, the circuit court determined that communications to Federal law enforcement officials were absolutely privileged. Because plaintiff could identify only privileged communications for his libel and slander claims, the claims were dismissed. Further, the court determined plaintiff had not shown facts to support a finding of malice, as would be required for a defamation action by a public official. (See New York Times Co. v. Sullivan (1964), 376 U.S. 254, 279-80, 11 L. Ed. 2d 686, 706, 84 S. Ct. 710, 725-26.) Plaintiff filed a timely notice of appeal.

Plaintiff agrees that statements made to law enforcement officials are privileged. However, he argues the privilege is conditional and not absolute. In general, a conditional or qualified privilege affords protection for communications made in good faith and with a reasonable belief in the truth of the allegations, even though such communications would normally be actionable. However, if the communications are made with malice, the privilege does not apply. (50 Am. Jur. 2d Libel & Slander §§195, 215 (1970).) An absolute privilege provides complete immunity from civil action, even though the statements are made with malice, because public policy favors the free and unhindered flow of such information. (53 C.J.S. Libel & Slander §58(a) (1987).) Plaintiff argues statements made to law enforcement officials should not be accorded complete immunity because it condones and even encourages malicious harassment through police investigations. According to plaintiff, a qualified privilege provides adequate protection for those reporting incidents of alleged wrongdoing to law enforcement authorities. A qualified privilege also provides a means of redress for those who have been wronged by defamatory statements made with malice. In this case, plaintiff is a circuit court judge who cannot mount a public relations campaign to clear his name, as can other elected public officials. Plaintiff must live with the damage to his reputation unless he can find remedy through a civil action for defamation.

As support, plaintiff cites our opinion in Starnes I, and two cases from our discussion therein. (Richardson v. Dunbar (1981), 95 Ill. App. 3d 254, 419 N.E.2d 1205; Flannery v. Allyn (1964), 47 Ill. App. 2d 308, 198 N.E.2d 563.) However, plaintiff has misinterpreted the focus of these cases. Starnes I and Richardson discussed the quasi-judicial role of administrative bodies. Flannery dealt with a complaint made to the superiors of certain police officers concerning alleged improprieties committed by the officers while on duty. As such, the situation encompassed the employer-employee relationship and the administrative remedies inherent therein, as well as possible criminal action. The instant case involves a complaint made to law enforcement officials, with the specific intent of instituting criminal proceedings. The focus is solely on judicial proceedings.

As for judicial proceedings, the rule is that whatever is said or written in a legal proceeding, which is pertinent or material to the matters in controversy, is absolutely privileged, and no action for libel or slander can be maintained thereon. (Defend v. Laseelles (1986), 149 Ill. App. 3d 630, 633, 500 N.E.2d 712, 714; McCuteheon v. Moran (1981), 99 Ill. App. 3d 421, 425, 425 N.E.2d 1130, 1133.) In Illinois, this rule has been applied to statements made prior to the commencement of trial, including communications made to prosecuting authorities concerning alleged criminal activities. (Ritchey v. Maksin (1978), 71 Ill. 2d 470, 476, 376 N.E.2d 991, 993 (statements contained in criminal complaints filed but later dismissed); McDavitt v. Boyer (1897), 169 Ill. 475, 482-86, 48 N.E. 317, 319-20 (statements made to a magistrate while suing out a warrant for arrest); Defend, 149 Ill. App. 3d at 640, 500 N.E .2d at 719 (statements made in pleadings alleging a civil cause of action under a Federal criminal statute); Mc-Cutcheon, 99 Ill. App. 3d at 425, 425 N.E .2d at 1133 (statements made to members of the State’s Attorney’s office prior to preparing a criminal complaint); Harrell v. Summers (1961), 32 Ill. App. 2d 358, 361-62, 178 N.E.2d 133, 134 (statements contained in a petition for commitment to a mental institution); Dean v. Kirkland (1939), 301 Ill. App. 495, 510-11, 23 N.E.2d 180, 188 (statements made to police alleging criminal activities); see also Vogel v. Gruaz (1884), 110 U.S. 311, 314, 28 L. Ed. 158, 160, 4 S. Ct. 12, 14 (verbal statements made to State’s Attorney alleging criminal activities).) The foregoing authorities persuade us that the statements made to Federal law enforcement officials should be absolutely privileged.

In addition, our decision is supported by well-respected secondary sources. Section 587 of the Restatement (Second) of Torts, at 248 (1977), states the privilege for communications made in judicial proceedings:

“A party to a private litigation or a private prosecutor or defendant in a criminal prosecution is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding.”

Comment b to section 587 explains that the privilege is meant to apply to communications such as occurred in the present case:

“The rule stated in this Section is applicable to protect parties to any action before a judicial tribunal. *** It applies to *** information given and informal complaints made to a prosecuting attorney or other proper officer preliminary to a proposed criminal prosecution whether or not the information is followed by a formal complaint or affidavit.” (Restatement (Second) of Torts §587, comment b, at 249 (1977).)

Dean Prosser, in his treatise on torts, concurs:

“Although there is some authority to the contrary, the better view seems to be that an informal complaint to a prosecuting attorney or a magistrate is to be regarded as an initial step in a judicial proceeding, and so entitled to an absolute, rather than a qualified immunity.” (W. Prosser, Torts §114, at 780-81 (4th ed. 1971).)

The trial court properly found the communications to the Federal law enforcement officials immune from discovery because of an absolute privilege accorded to such communications.

Plaintiff raises a second allegation of error by the trial court. He argues the trial court erred in denying leave to file his second-amended complaint. We need only address this question as it relates to counts III and IV, the new causes of action for invasion of privacy and intimidation. Counts I and II reallege claims of libel and slander, and our holding above disposes of these claims.

The trial court denied leave because the proposed amendments were untimely and raised new matters which would delay the start of trial in order to allow defendants time to properly prepare their defenses. Plaintiff argues the new causes of action arose out of the same transaction as the libel and slander claims, and defendants were not surprised or prejudiced by the filing of these new claims.

Defendants respond by arguing the new claims were untimely filed and were barred by statutes of limitations. We agree. A trial court has broad discretion in motions to amend pleadings prior to the entry of final judgment, and the denial of a motion to amend will not be regarded as prejudicial error unless there has been a manifest abuse of discretion. (Mundt v. Ragnar Benson, Inc. (1975), 61 Ill. 2d 151, 161, 335 N.E.2d 10, 16.) The factors to consider in evaluating the trial court’s discretion are (1) whether the proposed amendments would cure the defective pleading; (2) whether they would cause prejudice or surprise to the defendants; (3) the timeliness of the proposed amendments; and (4) whether previous opportunities to amend the pleadings could be identified. (Talas v. Youngstown Sheet & Tube Co. (1985), 134 Ill. App. 3d 103, 107, 479 N.E.2d 1052, 1055.) In this case, the proposed amendments were requested some five years after the litigation began. Plaintiff had several opportunities to amend his pleadings during that period, as both he and the courts modified the thrust of his requested relief. The new claims would also prejudice defendants, as they would need additional time to prepare their responses.

Further, the new claims are barred by statutes of limitations. Invasion of privacy and intimidation are independent causes of action from libel and slander. An amendment asserting new causes of action will not be permitted after the statute of limitations has run. (Beam v. Erven (1971), 133 Ill. App. 2d 193, 199, 272 N.E.2d 685, 690.) The limitation period for invasion of privacy is one year (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 201), and for intimidation is five years (Ill. Rev. Stat. 1987, ch. 110, par. 13-205).

For the reasons stated above, the order of the circuit court of Sangamon County granting summary judgment for defendants is affirmed.

Affirmed.

McCULLOUGH, P.J., and GREEN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PHILLIP PEEPLES, Defendant-Appellant.
    Fourth District
    No. 4—88—0679
    Opinion filed June 15, 1989.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On August 30, 1988, the circuit court of Champaign County, pursuant to the State’s motion, dismissed the post-conviction petition of defendant Phillip Peeples. Defendant appeals. We affirm.

On September 16, 1980, defendant was convicted for committing the offense of murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1). The crime involved the sexual assault and stabbing death of a teacher in the school library. At the sentencing hearing, the court found defendant qualified for an extended-term sentence since the crime was accompanied by “exceptionally brutal or heinous behavior indicative of wanton cruelty,” which is one of the qualifying factors set forth in section 5 — 5—3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b)(2)). Accordingly, the court sentenced defendant to 80 years’ incarceration.

On July 22, 1981, this court, in an unpublished order, affirmed defendant’s conviction and sentence. The Illinois Supreme Court denied defendant’s leave to appeal on November 30, 1981. (People v. Peeples (4th Dist. July 22, 1981,) No. 16759 (unpublished order under Supreme Court Rule 23), appeal denied (1981), 85 Ill. 2d 580, 426 N.E.2d 1288.) Defendant next turned to the Federal courts for relief. The district court denied defendant’s petition for writ of habeas corpus. (United States ex rel. Peeples v. Greer (C.D. Ill. 1983), 566 F. Supp. 580.) This denial was affirmed by the court of appeals in United States ex rel. Peeples v. Greer (7th Cir. 1984), 739 F.2d 262.

Defendant returned to the Illinois courts in his quest on June 16, 1988, when he filed his present petition, pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.). After appointment of counsel and filing of an amended petition, the State filed a motion to dismiss the petition. Defendant’s petition contained numerous grounds for relief, but relied primarily on his assertion that the factor the court relied on to impose the extended-term sentence is vague and violates the constitutional prohibition against cruel and unusual punishment. The State contended that these issues were either raised, or could have been raised, in earlier appeals and, pursuant to the doctrine of res judicata, the petition should be dismissed. The court agreed.

It is well settled that, in evaluating post-conviction petitions, affirmance on the direct appeal is res judicata as to all issues that were raised, or could have been raised, on that appeal. (People v. Roberts (1979), 75 Ill. 2d 1, 10, 387 N.E.2d 331, 335.) This is equally true of issues raised in habeas corpus litigation. (People v. Peery (1982), 108 Ill. App. 3d 843, 845-46, 439 N.E.2d 1087, 1089.) There is a limited exception to strict application of res judicata where fundamental fairness dictates otherwise, as where the right relied on has been recognized for the first time after the direct appeal. (People v. Cowherd (1983), 114 Ill. App. 3d 894, 898, 449 N.E.2d 589, 591-92.) It is this exception upon which defendant relies.

Defendant argues the provisions of section 5 — 5—3.2(b)(2), which provide an extended-term sentence can be imposed if the offense is accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, is vague and violates the eighth amendment prohibition against cruel and unusual punishment because the sentence could be capriciously and arbitrarily imposed. He relies on the recent Supreme Court case of Maynard v. Cartwright (1988), 486 U.S. 356, 359, 100 L. Ed. 2d 372, 378, 108 S. Ct. 1853, 1856. There, the Court found that an Oklahoma statute, which provided the death penalty could be imposed when the murder was “especially heinous, atrocious, or cruel,” violated the eighth amendment. The Court observed the language had not been defined by the Oklahoma courts and, consequently, did not sufficiently minimize the risk of wholly arbitrary and capricious action by the sentencer in imposing the death penalty.

Defendant maintains that, since Maynard was decided after his direct appeal and habeas corpus petition, the doctrine of res judicata should not be applied. However, the exception only applies where the right has been recognized for the first time after the direct appeal. (Cowherd, 114 Ill. App. 3d at 898, 449 N.E.2d at 591-92.) A review of Maynard and defendant’s other actions establishes that, in fact, defendant did litigate this exact question in earlier proceedings.

In Maynard, the Court stated: “We think the Court of Appeals was quite right in holding that [Godfrey v. Georgia] controls this case.” (Maynard, 486 U.S. at 363, 100 L. Ed. 2d at 382, 108 S. Ct. at 1859.) In Godfrey v. Georgia (1980), 446 U.S. 420, 428, 64 L. Ed. 2d 398, 406, 100 S. Ct. 1759, 1765, the Court held a Georgia statute, which allowed imposition of the death sentence when the murder was “outrageously or wantonly vile, horrible or inhuman,” had been unconstitutionally applied because the quoted language had not been defined for the sentencing jury. The court concluded this vague construction gave the jury unchanneled discretion, violating the eighth amendment prohibition against cruel and unusual punishment.

It is apparent then that Maynard does not represent new law, but simply applies that set forth in Godfrey. The “right” defendant attempts to assert now was recognized in 1980, and not for the first time after conclusion of defendant’s direct appeal.

It is also evident defendant thoroughly litigated this question in his earlier cases. In our unpublished decision on defendant’s direct appeal, this court stated:

“The constitutional issue, defendant’s second argument, may be disposed of summarily. He relies entirely on Godfrey v. Georgia (1980), 446 U.S. 420, 64 L. Ed. 2d 398, 100 S. Ct. 1759. The Supreme Court in Godfrey was concerned with the application to that set of facts of the Georgia death-penalty statute which had already been held constitutional in Gregg v. Georgia (1976), 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909. The court simply held that on the facts of Godfrey the death penalty was not warranted.
The instant case is controlled by People v. Nobles (1980), 83 Ill. App. 3d 711, 404 N.E.2d 330. In that case the court upheld the constitutionality of the statute imposing life imprisonment under section 5 — 8—1(a)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(1)). We note that the language of that section is identical with the language of the extended term statute which we have been discussing. The phrase, ‘accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty,’ appears in both statutes.” People v. Peeples (4th Dist. July 22, 1981), No. 16759, slip op. at 7-8 (unpublished order under Supreme Court Rule 23).

In denying defendant’s habeas corpus petition, the district court stated:

“The death penalty is cruel and unusual punishment when there is a substantial risk that it will be imposed in an arbitrary and capricious manner. That is the impact of Furman v. Georgia, Gregg v. Georgia, Proffitt v. Florida, and Godfrey v. Georgia. That limitation on a state’s sentencing power is founded in the Eighth Amendment and made applicable to the states by the Fourteenth Amendment. In short, Godfrey v. Georgia is an Eighth Amendment case and not a Fourteenth Amendment due process case. [Citations.] The Eighth Amendment analysis of Godfrey v. Georgia would not apply to an extended term of imprisonment. As noted above, the United States Supreme Court has never held a term of years within statutory limits to be cruel and unusual punishment. [Citation.] It follows that a substantial risk of the arbitrary and capricious imposition of an extended term of imprisonment is not cruel and unusual punishment.” Peeples, 566 F. Supp. at 591.

The court of appeals affirmed this denial. In so doing, it observed:

“The appellant herein argues before us that the decision in [Solem v. Helm (1983), 463 U.S. 277, 77 L. Ed. 2d 637, 103 S. Ct. 3001, which was decided after the district court’s opinion] now makes Judge Baker’s refusal to apply to the facts of this case the Eighth Amendment analysis of Godfrey v. Georgia, supra, improper. But we find that Solem does not serve to change Judge Baker’s decision. Put succinctly, Godfrey, Gregg and Proffitt still stand for the proposition that in a death penalty case there can be cruel and unusual punishment whenever there is a substantial risk that due to the language of the state statute the death penalty can be imposed in an arbitrary and capricious manner. Solem addresses an inherently different consideration-one which serves to permit limited federal court surveillance of state court term sentences. It is that imprisonment for a term of years can be found invalid under the Eighth Amendment, when the term of years is significantly disproportionate to the offense. Both Solem and the Godfrey line of cases fall trader the scrutiny of the Eighth Amendment, but they do not combine here to condemn Peeples’ sentence. The petitioner here has not claimed that his term of years is disproportionate to his offense. In fact, any such claim would be futile. It is true that Peeples was sentenced to 80 years, but he received it as punishment for a brutal and violent murder. This is a far cry from the defendant in Solem who as punishment for relatively minor criminal conduct received life in prison without the possibility of probation or parole.
What the petitioner appears to be claiming is that his sentence is invalid under the Eighth Amendment because the Illinois statute itself is unconstitutional in that it creates the possibility that extended term sentences under it could be capriciously and arbitrarily imposed. Under the Godfrey cases, there is the serious federal concern about state impositions of death sentences under capital sentencing statutes that are so vague that state courts can execute people arbitrarily or speculate as to whether a convicted defendant’s behavior has measured up to the condemnation expressed in the statute. Now, under Solem, there is a different concern — one that relates to terms of years sentences. But it is related more to the application of the statute than to the language of the statute. It is that in the term sentence itself there must be proportionality and balance that reflect the offense committed. It may be true that both of these issues are at home in discussions about due process of law under the Fourteenth Amendment; but in Solem as in Godfrey the Supreme Court has found the Eighth Amendment a sufficient foundation for federal judicial attention.
We are convinced from a review of the record before us and a review of Judge Baker’s thorough study of the Illinois cases upholding the constitutionality of the statute applied here, that the statute in question as applied to the facts of this case did not constitute a violation of the Constitution of the United States.” (Emphasis added.) Peeples, 739 F.2d at 265.

Defendant argues these cases substantively considered vagueness claims under the due process provisions of the fourteenth amendment and did not address the substantive merit of his eighth amendment claim. However, the decisions, by their very language, belie this assertion. All three cases refer to defendant’s reliance on Godfrey, which is strictly an eighth amendment case and contains no reference to the due process clause of the fourteenth amendment. Further, both Federal opinions specifically refer to defendant’s eighth amendment arguments.

Accordingly, it is evident defendant, in the present case, is simply trying to litigate the same question between the same parties using the same law, which has been answered by three courts. The doctrine of res judicata controls, and defendant’s petition was properly dismissed.

Even if we were to accept defendant’s argument that he did not raise this issue in his direct appeal, the trial court’s dismissal of his post-conviction petition is proper. Defendant argues, relying on Maynard, that the provision which allows an extended-term sentence to be imposed, when the crime is accompanied by “exceptionally brutal or heinous behavior indicative of wanton cruelty,” is vague and subject to being capriciously and arbitrarily imposed and, thus, violates the eighth amendment.

However, as noted, Maynard is simply an application of Godfrey. The analysis in Godfrey is limited in application to death penalty sentences, and not cases involving terms-of-years sentences. (Peeples, 739 F.2d at 265; Peeples, 566 F. Supp. at 584.) Also, numerous Illinois courts have addressed the vagueness question, with respect to this section or similarly worded sections of the Unified Code of Corrections, and have found no constitutional problems. (See People v. La Pointe (1981), 88 Ill. 2d 482, 499-500, 431 N.E.2d 344, 352; People v. Cooper (1985), 136 Ill. App. 3d 517, 528, 483 N.E.2d 309, 316; People v. Sanford (1983), 116 Ill. App. 3d 834, 844, 452 N.E.2d 710, 718; People v. Andrews (1982), 105 Ill. App. 3d 1109, 1113, 435 N.E.2d 706, 708; People v. Kulpa (1981), 102 Ill. App. 3d 571, 577, 430 N.E.2d 164, 168-69; People v. Devine (1981), 98 Ill. App. 3d 914, 925-26, 424 N.E.2d 823, 832-33; People v. Turner (1981), 93 Ill. App. 3d 61, 68-69, 416 N.E.2d 1149, 1155.) Finally, the Seventh Circuit Court of Appeals, in the earlier referred to opinion on defendant’s case, addressed this question in a well-reasoned opinion, and determined there was no constitutional difficulty (see Peeples, 739 F.2d 262.), an analysis with which we agree. Accordingly, we conclude defendant’s assertion that the language in question violates the eighth amendment of the United States Constitution is without merit.

Affirmed.

McCULLOUGH, P.J., and GREEN, J., concur.


author: JUSTICE KNECHT

text:
      In re T.L.B. (The People of the State of Illinois, Petitioner-Appellee, v. T.L.B., Respondent-Appellant).
    Fourth District
    No. 4—88—0302
    Opinion filed June 8, 1989.

      Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

In March 1987, the respondent minor, born November 9, 1972, was placed on a period of 18 months’ probation pursuant to proceedings on a supplemental delinquency petition. (Ill. Rev. Stat. 1985, ch. 37, par. 704 — 1 (now Ill. Rev. Stat. 1987, ch. 37, par. 805 — 13).) In February 1988, a petition to revoke the minor’s probation was filed alleging criminal damage to property having a value in excess of $300. (Ill. Rev. Stat. 1987, ch. 38, par. 21 — 1(a).) The minor thereafter admitted and stipulated to the charge, in exchange for which the State agreed to follow the recommendation of the Court Services Department as to disposition. At the conclusion of the dispositional hearing, the trial court ordered the minor committed to the Department of Corrections, Juvenile Division (DOC). This appeal followed.

On appeal, the minor argues, first, the trial judge abused his discretion in sentencing him to DOC for an indeterminate term, since he had been adjudicated delinquent for only two misdemeanor thefts and the judge failed to consider less severe placement alternatives for him. Second, he maintains section 5 — 33(2) of the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1987, ch. 37, par. 805 — 33(2)), which prohibits a circuit court from imposing a determinate-term sentence to DOC upon a minor pursuant to proceedings under the Act, violates the equal-protection clauses of the United States and Illinois Constitutions because the provision permits the commitment of minors for a longer period of time than similarly situated adults and, further, is not precisely tailored to serve a compelling governmental interest.

The purpose of the Act, generally, is to secure for each minor who comes within its provisions such care and guidance, preferably in his own home, as will serve the moral, emotional, mental, and physical welfare of the minor and the best interests of the community, removing him from the custody of his parents only when his welfare or safety or the protection of the public cannot be adequately safeguarded without removal. (Ill. Rev. Stat. 1987, ch. 37, par. 801 — 2(1).) The first purpose of the juvenile justice statutory scheme is to correct a minor’s conduct. Society is interested for its own sake as well as for the minor’s individual welfare in guiding and rehabilitating. In re Armour (1974), 59 Ill. 2d 102,104, 319 N.E.2d 496, 498.

Section 5 — 23 of the Act sets forth the various dispositional alternatives available to the trial judge as to a minor found delinquent under section 5 — 33 of the Act (Ill. Rev. Stat. 1987, ch. 37, par. 805— 33), including probation or conditional discharge; placement outside the home under section 5 — 29 of the Act (Ill. Rev. Stat. 1987, ch. 37, par. 805 — 29); admission or treatment for drug addiction; commitment to the Department of Children and Family Services (DCFS); placement in detention for a period not to exceed 30 days; or commitment to DOC under section 5 — 33 of the Act (Ill. Rev. Stat. 1987, ch. 37, par. 805 — 33). (Ill. Rev. Stat. 1987, ch. 37, par. 805 — 23.) The trial judge is, necessarily, accorded wide discretion in determining an appropriate disposition, and may choose as he sees fit among the various dispositional alternatives and need not defer to any particular disposition. His decision will not be reversed unless an abuse of discretion is demonstrated. In re A.J.D. (1987), 162 Ill. App. 3d 661, 666, 515 N.E.2d 1277, 1280; In re T.A.C. (1985), 138 Ill. App. 3d 794, 797-98, 486 N.E.2d 375, 378; In re M.D.B. (1984), 121 Ill. App. 3d 77, 458 N.E.2d 1380.

Section 5 — 23(l)(b) of the Act restricts the trial court’s consideration of commitment to DOC as a disposition to those cases where (1) the minor is 13 years of age or older, and (2) a term of incarceration is permitted by law for adults found guilty of the offense for which the minor was adjudicated delinquent. (Ill. Rev. Stat. 1987, ch. 37, par. 805 — 23(l)(b).) Here, T.L.B. was over the age of 13 and a term of imprisonment is permitted for adults found guilty of attempt (theft under). (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 4(a),(c), 16 — 1(a)(1), (e)(l), 1005 — 8—3(a)(l).) Section 5 — 33 of the Act provides that when any delinquent has been adjudged a ward of the court under the Act, the court may commit him to DOC if it finds “(a) his parents *** are unfit or are unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor, or are unwilling to do so, and the best interests of the minor and the public will not be served by placement under Section 5 — 29; or (b) it is necessary to ensure the protection of the public from the consequences of criminal activity of the delinquent.” (Ill. Rev. Stat. 1987, ch. 37, par. 805 — 33(1).) Here, the court based the commitment of the minor on subsection (a). Ill. Rev. Stat. 1987, ch. 37, par. 805 — 33(l)(a).

Respondent argues the trial court abused its discretion because his conduct was not outrageous and did not constitute “wanton criminal acts or crimes of violence” and, further, less drastic alternative placements under section 5 — 29 of the Act could have served the needs of both the minor and the public. Respondent maintains the facts of this case afford no justification for the trial court “leaping from a less restrictive form of correction to the most severe,” where his infractions did not involve violence or personal injury and his background “indicated strong potential for improvement.”

This was not the respondent’s first contact with the circuit court. He has been involved in court proceedings since June 1985, when a juvenile delinquency petition was filed alleging misdemeanor theft in relation to an unauthorized taking of property of a store, a Trivial Pursuit “Genus Edition” game. Respondent was, at that time, 12 years old. He admitted to the allegations of the petition and was ordered to serve 18 months’ court supervision.

In January 1987, a supplemental delinquency petition was filed alleging respondent committed the offense of attempt (misdemeanor theft) for trying to expropriate two baseball cards. In February 1987, the minor admitted and stipulated to the charge and was found a delinquent minor. In March 1987, the court discharged the minor from court supervision. At the dispositional hearing for the supplemental delinquency petition on March 31, 1987, the respondent was ordered to serve a term of 18 months’ probation. As a condition of his probation, respondent was ordered to spend six days in the Champaign County Youth Detention Center, ending April 5, 1987, and an additional 11-day period of detention from October 8, 1987, to October 18, 1987.

After being released from detention on April 5, 1987, a report of probation violation was filed, alleging that on April 6, 1987, at about 11:45 a.m., respondent removed a check in the amount of $682.70 from an office at the junior high school and thereafter presented the check to a teacher.

In September 1987, respondent’s probation was modified, and his period of detention, scheduled for October 1987, was vacated. Thereafter, on February 1, 1988, the instant petition to revoke probation was filed, alleging that on November 23, 1987, he committed the offense of criminal damage to property (Ill. Rev. Stat. 1987, ch. 38, par. 21 — 1(a)) when he knowingly damaged the hood of a 1987 Volkswagen Golf four-door automobile, without the consent of the owner, causing damage in excess of $300. In March 1988, the minor admitted and stipulated to the allegations of the petition. The factual basis was as follows:

“[P.S.] would testify that he was the owner of a 1987 Volkswagen Golf 4 door automobile that was parked on the parking lot of the church on Philo Road. That a boy scout meeting was letting out, and that this Respondent Minor and two other Minors after the meeting leaned up against his car, and then decided to walk across the roof of his car, causing approximately $1,000 in damage.”

The updated dispositional report filed in this cause summarized previous court attempts at influencing respondent as having proved in vain:

“He was originally unsuccessfully discharged from Court Supervision on 3-3-87, and just twenty-eight days later was sentenced to a term of 18 months Probation, this being his second opportunity to serve a community sentence.
Rather than taking advantage of this second opportunity to avoid a protracted term of incarceration, the respondent has systematically absented himself from school, to the point of being withdrawn/failing in each of his classes. Clearly, this is indicative of the respondent’s total lack of desire to better himself, and to comply with Court orders.
The respondent’s total Probation record has left much to be desired. Excessive school disciplinary problems beyond his constant absenteeism, refusal to pay Court costs as directed, failure to advise this office of a change of residence and an unwillingness to cooperate at home in the past, illustrates a very mediocre attitude toward the authority of this Court.
Although this officer recognizes the fact that the offenses committed by the respondent minor have not been violent in nature, the consistent, irresponsible, behavior displayed by him, suggests that Probation is an ineffective sentence for this individual, and that more punitive measures must be taken in an effort to dissuade this respondent from further criminal activity as an adult.”

The probation officer recommended the minor be committed to DOC. The State concurred in this recommendation. Counsel for respondent urged the court to give the minor another chance to prove he could learn something from probation. She urged the court to look for another educational setting for the minor, possibly along the lines of the Cunningham Children’s Home. The court discussed the respondent’s situation, concluding the appropriate dispositional alternative was the commitment to DOC. Now, on appeal, the minor seizes upon certain of these statements made by the trial judge to upset his choice of dis-positional alternative, arguing, for example, the judge “even admitted ‘we could do more’ to assist the minor and then declined to expend local resources on the minor’s behalf.”

We note, in examining the record before us, the minor has had a number of factors in his favor. He has a good family relationship with his mother, with whom he resided, and his siblings. His mother, who works outside the home, has by all indications attended the numerous hearings in these juvenile proceedings. He is not involved in using drugs or alcohol. He was involved in team sports, playing on a school baseball team and a church basketball team. Nevertheless, he has continued to engage in delinquent conduct.

He has also had the benefit of numerous community-based programs. In ninth grade he was enrolled in the “Recapture Program,” a structured program to assist failing students in eventually returning to regular classes. He continued to accumulate excused and unexcused absences and was repeatedly tardy. In 1986-87 school year, he received in-school detentions and warnings for misconduct. In addition, in September 1986, he received a three-day suspension and a five-day suspension; in January 1987, a five-day suspension; and in March 1987, a two-day suspension. While on supervision, the minor completed 20 hours of public service work and toured the Champaign Youth Detention Center, but failed to keep appointments at Court Services Department or make payments toward court costs.

While later serving his six-day detention during probation, he cooperated with the staff at the detention center and seemed to benefit from his stay. On the day following his release from detention, however, he purportedly removed a check from the office of the junior high school, but turned it over to a teacher. As a result of this incident, he was referred to Christie Clinic in July 1987 for an examination related to the behavior problems at school. In the fall of 1987, the minor participated in the school’s work program, but was dropped from the program in November 1987 due to poor attendance. The school records for the 1987-88 academic year showed 19 excused absences and 71 unexcused absences through April 8, 1988. His infractions of school rules continued. Due to his special education classification, he was eligible for a Resource Study class period each day, but he failed to avail himself of this class period or to attend study hall as assigned.

On this record, we conclude the evidence in this matter supports the exercise of discretion by the trial court.

Respondent’s second argument, raised for the first time on appeal, is that section 5 — 33(2) of the Act violates the equal protection provisions of the United States and Illinois Constitutions since, under the provision, a minor may be kept in DOC until attaining the age of 21. The State argues respondent has waived any argument on this issue since he failed to challenge the constitutionality of the provision in the circuit court.

Failure by a defendant to raise an issue in the trial court generally constitutes waiver of the issue, and waiver applies to constitutional questions as well as to other issues. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856; People v. Mayberry (1976), 63 Ill. 2d 1, 6, 345 N.E.2d 97, 99-100.) Principles of waiver are equally applicable to proceedings involving respondent minors under the Act. (In re F.L.W. (1979), 73 Ill. App. 3d 355, 358, 391 N.E.2d 1070, 1072 (and cases cited therein).) In light of our ruling on the merits of respondent’s argument, we need not resolve the waiver issue. See People v. Bryant (1989), 128 Ill. 2d 448, 453-54.

On the merits, we find no equal protection violation posed by the statutory provision. In People v. S.L.C. (1986), 115 Ill. 2d 33, 45, 503 N.E.2d 228, 233, our supreme court held the trial court had authority to commit a minor to DOC for a period of one year, stating:

“The Juvenile Court Act does not expressly require the trial court, if it plans to commit a delinquent minor to the Department, to do so for an indefinite term. Nor does the Act expressly prohibit the trial court from committing a delinquent minor to the Department for a definite term.”

In reaching this conclusion, the court rejected the argument of the amici curiae, the Department of Corrections and the Prisoner Review Board, that commitment of a delinquent minor to DOC for a determinate term impeded DOC’s ability to fulfill the purpose of the Juvenile Court Act — that of rehabilitation — and substituted the principle of incarceration for rehabilitation.

Subsequent to the decision in In re S.L.C., the Hlinois legislature amended the Juvenile Court Act, adding the following language:

“The commitment of a delinquent to the Department of Corrections shall be for an indeterminate term which shall automatically terminate upon the delinquent attaining the age of 21 years unless the delinquent is sooner discharged from parole or custodianship is otherwise terminated in accordance with this Act or as otherwise provided for by law.” (Ill. Rev. Stat., 1987 Supp., ch. 37, par. 705 — 10(2).)

This amendment was accomplished by Public Act 84 — 1475, effective February 5, 1987. (1986 Ill. Laws 4658, 4667.) By this amendment, . the General Assembly intended to accord weight to DOC’s discretion on when to release a juvenile and the importance of the exercise of this discretion in his rehabilitation:

“There’s also a significant change, important change, that is directed to the sentencing for juveniles. Recently, there was a Supreme Court ruling [, In re S.L.C.,] which provided that a Judge *** that there’s nowhere in the law that prohibits a Judge from sentencing a delinquent to a determinate sentence when he is brought before the court. What this Conference Committee provides is that a Judge, when sentencing a juvenile, would be given the authority to provide a sentence with an indeterminate sentence that would be in effect until that juvenile reaches the age of 21. That’s a clarification. The Department of Corrections had been under the impression that they would treat juveniles under an indeterminate sentencing provisions. The Supreme Court raised doubts about that in October of 1986. This simply provides a more definitive statutory statement. I’d be happy to answer any questions.” 84th Ill. Gen. Assem., House Proceedings, Dec. 5, 1986, at 13-14 (statements of Representative O’Connell) (debates on Senate Bill 1565).
“I’m going to support the Bill because of the last point that Representative O’Connell spoke about. This Henry County case that was decided basically said that a Judge in a juvenile offender case can set *** send that juvenile to jail for a determinate period of time. There are seven juvenile institutions in Illinois which have a population of a little over a thousand. If this was *** this recent case was allowed to stay the law, we would have Judges starting to send prisoners, juveniles, for a set period of time, thus removing from the Director of the Department of Corrections the discretion when to *** when to let that juvenile out. The loss of the discretionary release ends up in eroding the Department’s ability to motivate good behavior by juvenile delinquents who are behind bars. And in addition, we would have so many extra prisoners, we would have to then, once again, come in and build another juvenile facility. So, that case was argued by John Breslin from the State’s Attorneys Appellate Service Commission and, unfortunately, they didn’t win the case and so, as a result, we’re here with this statute now to try to correct *** go back to the current practice and avoid this potential serious problem. So, for that reason, I’m going to support the Bill and urge everyone else to.” 84th Ill. Gen. Assem., House Proceedings, Dec. 5, 1986, at 14-15 (statements of Representative Cullerton) (debates on Senate Bill 1565).
“I rise in favor of the Bill as well, and I agree with Representative Cullerton that the latter provision makes sense when applied to juveniles and that it’s more consistent with the current capabilities of the Department of Corrections.” 84th Ill. Gen. Assem., House Proceedings, Dec. 5, 1986, at 15 (statements of Representative McCracken) (debates on Senate Bill 1565).

Respondent urges this court to find section 5 — 33(2) of the Act unconstitutional, arguing physical liberty is a “fundamental right,” such that the State bears the burden of demonstrating its classification has been “precisely tailored” to serve a “compelling governmental interest,” and as to which the appropriate standard of review is strict scrutiny. Respondent relies on People v. Olivas (1976), 17 Cal. 3d 236, 551 P.2d 375, 131 Cal. Rptr. 55, as the seminal case on this issue. Under sections 5 — 2 and 5 — 10 of the former Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, pars. 705 — 2, 705 — 10), one of the alternative dispositional orders permitted in respect to a juvenile adjudicated delinquent was commitment to DOC for, in effect, an indeterminate period of time, not to exceed his 21st birthday (Ill. Rev. Stat. 1985, ch. 37, par. 705-11). (In re T.D. (1980), 81 Ill. App. 3d 369, 370, 401 N.E.2d 275, 276.) The equal-protection argument raised here was rejected under the former Juvenile Court Act by the Third District Appellate Court in In re Blakes (1972), 4 Ill. App. 3d 567, 281 N.E.2d 454, by this court in In re F.L.W., and by the Second District Appellate Court in In re T.D. (1980), 81 Ill. App. 3d 369, 401 N.E.2d 275.

In In re F.L.W., this court noted our supreme court had previously ruled upon this issue in In re Presley (1970), 47 Ill. 2d 50, 264 N.E.2d 177, the rule of which was thereafter followed in In re Sekeres (1971), 48 Ill. 2d 431, 270 N.E.2d 7. In Presley, the issue was the constitutionality of a commitment to the Youth Commission, raised by a motion to dismiss in the trial court and by habeas corpus. There it was argued since the minor might be required to remain with the Commission until 21 years of age, the statute provided a cruel and unusual punishment in violation of the constitutional rights of the minor. The Presley court stated:

“[T]he Juvenile Court Act specifically provides for the termination of proceedings thereunder ‘Whenever the court finds that the best interests of the minor and the public no longer require the wardship of the court ***’ (Ill. Rev. Stat. 1969, ch. 37, par. 7.05 — 11(2)), and the minor himself may apply to the court for a change of custodianship or his restoration to the custody of his parents (Ill. Rev. Stat. 1969, ch. 37, par. 705-8(2).)” 47 Ill. 2d at 56-57, 264 N.E.2d at 180.

The opinions in both Presley and Blakes were subsequent to the United States Supreme Court’s decision in In re Gault (1967), 387 U.S. 1,18 L. Ed. 2d 527, 87 S. Ct. 1428.

In In re T.D., the court examined and rejected arguments that a juvenile found to have committed misdemeanor offenses is denied due process and equal protection of the laws by commitment to DOC for an indeterminate term. In re T.D. rejected the arguments comparable to those of respondent and distinguished Olivas, stating:

“Essentially, respondent asks this court to re-examine Illinois case law in light of the recent decision in People v. Olivas (1976), 17 Cal. 3d 236, 551 P.2d 375, 131 Cal. Rptr. 55, in which the California Supreme Court found that the difference between the statutory sentencing provisions applicable to adults and those applicable to juveniles who have been tried as adults denied equal protection of the law to juveniles. Olivas must be distinguished, however, as the minor defendant in that case was not prosecuted as a juvenile pursuant to the California juvenile code, but, instead, was prosecuted as an adult. Under the laws of California then in force a juvenile was required to be sentenced under the juvenile code even when prosecuted as an adult and, therefore, remained subject to the potentially longer confinement provided in the juvenile code in either event. In Illinois, however, a minor who elects to be prosecuted as an adult and is convicted of a criminal offense will be sentenced as an adult. (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 5— 3(a).) The Olivas court did not address the question presented here. See People v. Olivas (1976), 17 Cal. 3d 236, 243 n.11, 551 P.2d 375, 379 n.11, 131 Cal. Rptr. 55, 59 n.11.” In re T.D., 81 Ill. App. 3d at 371, 401 N.E.2d at 276.

The majority opinions of this court in In re F.L. W. and In re E.H. (1980), 82 Ill. App. 3d 514, 402 N.E.2d 661, implicitly rejected the applicability of Olivas, which was explicitly referred to by the dissenting judge in each case. The In re T.D. court found no deprivation of equal protection in commitment of minors for an indeterminate term, reasoning:

“We do not find adult offenders and juveniles adjudicated delinquent to be ‘similarly circumstanced’ and, indeed, it is not the purpose of the Illinois Criminal Code and Juvenile Court Act to treat them as similarly circumstanced. The Juvenile Court Act has a legitimate and salutary goal, ‘to provide for the rehabilitation of delinquent minors at a stage before they have embarked upon the commission of substantive criminal offenses.’ (In re Presley (1970), 47 Ill. 2d 50, 56, 264 N.E.2d 177, 180.) * * *
To this end the [circuit court exercising its jurisdiction pursuant to the provisions of the Juvenile Court Act] acts as parens patriae (People v. Zepeda (1970), 47 Ill. 2d 23, 29, 265 N.E.2d 647, 650), and the court and its allied agencies must be enabled to give the minor the care and guidance the Act is designed to provide (Ill. Rev. Stat. 1977, ch. 37, par. 701 — 2(1)). As the indeterminate sentencing scheme of the Act is considered to play a useful role in achieving this goal and is applied similarly to all juveniles declared to be delinquent, it meets constitutional standards.
We note further that the Act offers unique benefits and favorable treatment to juvenile offenders which are not available to adult offenders. *** In addition to [the] continuous opportunity to seek early release, the juvenile incurs no criminal record and is not disqualified from subsequently holding public office or receiving any license other than, in an appropriate case, one relating to the operation of motor vehicles. (Ill. Rev. Stat. 1977, ch. 37, par. 702 — 9(1).) There is also special provision for the confinement of minors, who, if under 17 years of age, may not be incarcerated with adult criminal offenders. Ill. Rev. Stat. 1977, ch. 37, par. 702-8(1).
In our view it is particularly noteworthy that a juvenile has the right to choose to be prosecuted as an adult for any conduct which constitutes a criminal offense. (Ill. Rev. Stat. 1977, ch. 37, par. 702 — 7(5).) If he does so, he thereby waives the rights and benefits which attach to juvenile proceedings and will be subject to the same sentence as an adult offender. See People v. Gooden (1977), 56 Ill. App. 3d 408, 371 N.E.2d 1089; People v. Shaw (1972), 3 Ill. App. 3d 1096, 279 N.E.2d 729.” (In re T.D., 81 Ill. App. 3d at 372-73, 401 N.E.2d at 277.)

The Act still permits the juvenile the right to choose to be prosecuted as an adult for any conduct which constitutes a criminal offense. Ill. Rev. Stat. 1987, ch. 37, par. 805 — 4(5).

Inasmuch as section 5 — 33(2) codified the express proscription that commitment of a delinquent “shall be” for an indeterminate term, and such commitment previously survived judicial scrutiny, we see no reason to disturb the well-reasoned authorities rejecting the applicability of equal-protection analysis.

For the reasons stated herein, the judgment of the circuit court of Champaign County is affirmed.

Affirmed.

McCULLOUGH, P.J., and LUND, J., concur.


author: JUSTICE WOODWARD

text:
    KAREN B. KAPLAN, Plaintiff-Appellant, v. DAVID M. BERGER et al., Defendants-Appellees.
    Second District
    No. 2—88—0366
    Opinion filed May 25, 1989.
    — Rehearing denied July 12, 1989.

      Robert W. Karr and Marion A. Morawicz, both of Robert W. Karr & Associales, Ltd., and Sidney Z. Karasik, of Chicago, for appellant.
    Lawrence J. Helms and Patricia Mengler Whaley, both of Wildman, Harrold, Allen & Dixon, of Chicago, for appellee David M. Berger.
    George E. Riseborough, Jack H. Krackenberger, and Thomas K. Gerling, all of Brydges, Riseborough, Morris, Franke & Miller, of Waukegan, for appellee Highland Park Orthopedic Clinic.
   JUSTICE WOODWARD

delivered the opinion of the court:

On March 27, 1985, plaintiff, Karen Kaplan, filed a two-count complaint which alleged that defendants, Dr. David Berger and Highland Park Orthopedic Clinic (HPOC), committed medical malpractice by failing to properly diagnose a malignant schwannoma, the result of which was the metastasis of the cancer to plaintiff’s groin. She appeals from orders by the circuit court of Lake County which granted defendants’ motions for summary judgment. We reverse and remand.

Initially, we address defendant Berger’s motion to strike certain portions of plaintiff’s reply brief. Specifically, he objects to certain passages of plaintiff’s evidence deposition referred to in her reply brief. Defendant Berger argues that plaintiff makes reference to quotations from her deposition transcript which were never raised in the court below. We note that the entire transcript is part of the record on appeal. Defendant cites no authority for his argument and, pursuant to Rule 341(e)(7) (113 Ill. 2d R. 341(e)(7)), we find this issue waived.

On May 21, 1986, plaintiff filed an amended two-count complaint against the two defendants. In count I, plaintiff alleged that Dr. Berger failed to conduct a proper and appropriate examination of her right leg when she made an office call in February 1982; that he failed to obtain or recommend an appropriate orthopedic, neurological, or other consultation; and that he failed to admonish her that, based on her family and personal history of cancer, further exploration of those complaints should have been undertaken immediately.

Count I of plaintiff’s amended complaint alleged that as a direct and proximate result of Dr. Berger’s omissions, the diagnosis of plaintiff’s condition of ill-being, namely, the malignant schwannoma or spindelle cell sarcoma, was delayed until April 1983. As a result thereof, plaintiff’s surgical and other treatment was greater than it would otherwise have been, and the prognosis for an otherwise normal life expectancy was substantially diminished by the delay in obtaining a proper diagnosis and treatment.

Count II of the amended complaint alleged that on October 13, 1981, defendant HPOC and its staff employees failed to undertake complete and appropriate diagnostic measures to determine the cause of the pain in plaintiffs right leg, which was ultimately diagnosed as a fracture of the fibula; that on February 13 and again on February 14, 1983, defendant failed to undertake appropriate examination and diagnostic measures to determine the cause of plaintiff’s right leg complaints; and that it failed to obtain and record a complete family and personal history from plaintiff.

Dr. Berger filed a motion for summary judgment on the ground that (1) plaintiff’s cause was barred by the medical malpractice statute of limitations (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212) and (2) plaintiff’s injury was not proximately caused by Berger’s acts or omissions. HPOC filed two separate motions for summary judgment. In the first motion, it argued that (1) plaintiff’s cause was barred by the medical malpractice statute of limitations (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212), and (2) plaintiff’s injury was not proximately caused by services it rendered to her in October 1981 or February 1983. The court below granted both defendants’ motions for summary judgment, and this appeal followed.

First, we observe that the purpose of summary judgment is not to try an issue of fact but to determine whether there are any issues of material fact. (Golden v. Marshall Field & Co. (1985), 134 Ill. App. 3d 100.) Summary judgment is a drastic measure to be granted only where the evidence, when construed most strongly against the moving party, establishes clearly and without doubt the right thereto. (Becovic v. Harris Trust & Savings Bank (1984), 128 Ill. App. 3d 107.) Summary judgment should be awarded with caution so as not to preempt the right to trial by jury or the right to present fully a factual basis for a case when a material dispute may exist. W.H. Lyman Construction Co. v. Village of Gurnee (1985), 131 Ill. App. 3d 87.

We first address Dr. Berger’s argument that plaintiff waived the issue of proximate causation of the injury and, consequently, this court is required to affirm summary judgment on this ground. Plaintiff argues the issue of proximate causation and whether plaintiff’s suit was timely filed are tightly interwoven. We agree. Here, as alleged by plaintiff, Dr. Berger’s failure to provide proper treatment (proximate causation) delayed her determination of the true nature of the growth in her leg until April 1983. This omission pushed back the running of the relevant statute of limitations. We find that plaintiff’s argument does address both issues. Nevertheless, for the sake of clarity, we will address the issues of proximate causation and statute of limitations separately.

Next, we address plaintiff’s argument that her malpractice action was not time barred under the applicable statute (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 212), which provides in pertinent part:

“No action for damages for injury or death against any physician *** or hospital *** arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known *** of the injury or death for which damages are sought *** tf

In Witherell v. Weimer (1981), 85 Ill. 2d 146, our supreme court interpreted this provision thusly:

“The statute starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused. At that point the burden is upon the injured person to inquire further as to the existence of a cause of action.” (85 Ill. 2d at 156.)

Plaintiff knows or should know her injury was wrongfully caused when she obtains “sufficient information concerning [her] injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved.” Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 416.

Moreover, in Witherell, the court held that in the great majority of cases, the date of discovery by a plaintiff of a wrongfully caused injury will be a disputed question of fact for the jury:

“In many, if not most, cases the time at which an injured party knows or reasonably should have known both of his injury and that it was wrongfully caused will be a disputed question to be resolved by the finder of fact.” (Witherell, 85 Ill. 2d at 156.)

Only where a single conclusion is compelled by the evidence can the court decide the question as a matter of law. 85 Ill. 2d at 156.

Dr. Berger is a general surgeon whose practice includes surgical oncology or the surgical management of malignancies. Sometime in 1976, plaintiff came under the care and treatment of defendant Dr. Berger for breast cancer, and subsequently, she underwent a mastectomy. In January 1981, Dr. Berger operated on plaintiff’s right thigh to remove a growth, which proved to be benign. Plaintiff continued to see Dr. Berger on follow-up visits through February 1982.

In July 1981, plaintiff’s German shepherd ran into her right leg and knocked her over. The resulting pain in her right leg was temporary and subsided. In September 1981, plaintiff noticed that the outer portion of her lower right leg was numb. By October 1981, plaintiff’s lower right leg was very painful, and she felt a lump beneath her right knee. Plaintiff testified that she speculated that her right leg had been broken in the collision with her dog.

On October 13, 1981, plaintiff was examined by Dr. Rosenzweig, an orthopedic surgeon who was associated with defendant HPOC. Plaintiff stated that before seeing Dr. Rosenzweig, she filled out a medical history sheet, but she did not talk with him about her medical history. Plaintiff “thought” that she probably told Dr. Rosenzweig about her mastectomy for breast cancer. She did not recall speaking with him about her family history of cancer. Dr. Rosenzweig made a cursory examination of plaintiff’s leg. Plaintiff stated that Dr. Rosenzweig felt a hard mass in her lower right leg. He ordered X rays which were taken of the lower right leg. The X rays did not show any evidence of a fracture. Dr. Rosenzweig referred plaintiff for a series of three ultrasound treatments at Highland Park Hospital. He did not explain the reason for the treatments, nor did plaintiff understand their purpose. Plaintiff stated that on the same day, she went to take the clinic’s ultrasound treatment but was told that it was too busy, and she should call back for an appointment. Dr. Rosenzweig did not indicate to her that she was to follow up with him while undergoing ultrasound treatments. Plaintiff testified that he never indicated to her that he would see her again, and she “thought” he was “through” with her.

In January 1982, plaintiff saw Dr. Berger for a routine examination; he detected and removed a lump from her left breast. Because the detection of the lump in her breast and its removal took precedence, plaintiff did not bring the pain in her right leg to Dr. Berger’s attention. On February 2, 1982, plaintiff saw Dr. Berger again and described to him the tenderness and occasionally severe pain in her lower right leg. Plaintiff testified that she pointed out the lump to Dr. Berger, whose examination of the right leg was brief. Plaintiff told him about the collision with her dog the summer before. Dr. Berger had plaintiff stand on her toes and walk in a circle. He touched the area beneath plaintiff’s right knee and stated that he did not feel or see a lump. Dr. Berger did not order an X ray, nor did he indicate that there was a problem with her leg. At the examination’s conclusion, Dr. Berger told plaintiff that he did not take care of legs and told her to see someone else. Dr. Berger did not refer plaintiff to a leg specialist or suggest any names of such specialists. Plaintiff testified that she did not understand Berger’s statement that he did not deal with leg problems because he had previously removed a lump from her right thigh.

Plaintiff testified that she “thought” Dr. Berger’s examination of February 2, 1982, was inadequate and that she did not believe his findings. In plaintiff’s deposition, the following dialogue took place:

“MR. HELMS: Q. From the way that he [Dr. Berger] treated you did you feel that his examination of your right leg was adequate for you to rely upon?
A. No.
Q. And you yourself disbelieved what he said about his findings, is that correct?
A. Correct.
Q. In terms of a mass?
A. Correct. But he being my cancer specialist at the time, when he didn’t go crazy over the lump, I didn’t see any need to.
Q. I take it that as of February 1982, when you were in the office with him, that you disagreed with him then as well?
A. Yes.
Q. Did you disagree verbally to him?
A. No.
Q. But you felt he was wrong then and there?
A. Yes.
Q. Why didn’t you do something further about it then?
A. Because nobody seemed to react like I should be doing anything more than I was doing.”

Plaintiff further explained her decision not to immediately seek another opinion regarding her leg:

“Q. When Dr. Berger told you on February 2, 1982, to go see someone else, did you take that to be medical advice?
A. No.
Q. What did you take it to be?
A. I took it to be that the guy was too busy and just decided he knew better than tell me to go see someone else, who took care of legs.”

Following the February visit to Dr. Berger, plaintiff’s lower right leg pain worsened. Plaintiff testified that in June 1982, plaintiff, while on vacation in Aspen, Colorado, saw Dr. Kirk, an orthopedic surgeon, concerning the problem she was having with her lower right leg. Dr. Kirk ordered an X.ray, which he interpreted as showing a healed fracture of the right fibula. Dr. Kirk informed plaintiff that she had a healed fracture and was suffering from arthritis. In examining plaintiff’s lower right leg, he did not feel any lump. Dr. Kirk prescribed medication, which did not ease the pain.

Upon plaintiff’s return to Chicago in late summer 1982, she called Dr. Berger to give him “one more chance” to address her leg problem. Again, Dr. Berger told her that he did not take care of legs. He did not suggest any leg specialist with whom plaintiff could consult. Plaintiff did not communicate with Dr. Berger again.

In November 1982, plaintiff visited her gynecologist, Dr. Lionel Schewitz, and mentioned to him the severe pain in her right leg. Plaintiff testified that she told Dr. Schewitz that her complaints were being ignored. Plaintiff stated that Dr. Schewitz did not respond to her complaints. She did not ask Dr. Schewitz for a referral.

In February 1983, plaintiff went to Highland Park Hospital’s emergency room with excruciating pain in her lower right leg. Plaintiff stated that, at this time, the lump was sticking out from her lower right leg and was the size of a “little golf ball.” She initially was examined by Dr. Arnold Cohn, an orthopedic physician associated with defendant HPOC. Dr. Cohn ordered an X ray, and upon reviewing it, told plaintiff that he saw nothing irregular in it. Stating that he could do nothing for her, Dr. Cohn, called in Dr. Weber to examine plaintiff. Dr. Weber, who was not associated with HPOC, examined plaintiff’s right leg, and he detected a lump and a neuroma, i.e., a tumor made up of nerve cells and nerve fibers. Dr. Weber prescribed several medications, a combination of which reduced plaintiff’s pain. Also, Dr. Weber ordered an EMC, the results of which were normal. He then referred plaintiff to Dr. Ivan Ciric, a neurosurgeon, who saw her once in March 1983. Dr. Ciric also thought the growth was a neuroma and referred plaintiff to a nerve specialist in New Orleans, Dr. David Kline. After examining plaintiff, Dr. Kline operated in April 1983 to remove the lump, which he initially thought was a neuroma. A biopsy of the tumor indicated that it was an unencapsulated, malignant schwannoma, which is a neoplasm originating from the schwann cells of the myelin sheath of neurons. Dr. Kline suggested amputation of plaintiff’s right leg above the knee. Plaintiff rejected this suggestion.

Upon recuperation from the surgery to remove the growth, plaintiff saw two Chicago physicians, Dr. Dasgupta and Dr. Gitelis in or about May 1983. Dr. Dasgupta wanted to remove the affected nerve, which would have left plaintiff with a nonfunctional right leg. Dr. Gitelis, an orthopedic surgeon, when informed by plaintiff that she did not want her right leg partially amputated, suggested radiation treatment. In or about July 1983, plaintiff received a course of radiation treatment which caused serious deterioration in the skin and muscle in her groin. In August 1983, two weeks after the radiation treatment had been terminated prematurely due to the aforementioned deterioration, plaintiff found enlarged lymph nodes in her groin. These growths were surgically removed by Dr. Gitelis. They were determined to be malignant schwannoma, which had metastacized from plaintiff’s right leg schwannoma. Plaintiff underwent a number of plastic surgeries to restore her deteriorated groin.

During the pendency of this lawsuit, plaintiff retained Dr. Donald Sweet, who is board-certified in internal medicine, oncology, and hematology. Paragraph 6 of plaintiff’s response to Dr. Berger’s motion for summary judgment states that Dr. Sweet, in a deposition which is not part of the appellate record, opined that Dr. Berger deviated from the applicable standard of care, the result of which' proximately caused injury to plaintiff in the form of a delay in the diagnosis and treatment of her malignant schwannoma. This delay resulted in the metastasis of the cancer. Dr. Sweet did not criticize the services rendered by Dr. Cohn of HPOC in February 1983. Regarding Dr. Cohn, defendant HPOC offered the affidavit of Dr. Larry Milner, a board-certified oncologist, who opined that Dr. Cohn and HPOC did not deviate from accepted standards of medical care in relation to treatment of plaintiff in February 1983. Dr. Milner did not address the services rendered by HPOC’s Dr. Rosenzweig in October 1981.

Plaintiff argues that she was not aware of the true nature and extent of her right leg’s ill-being until she underwent surgery in April 1983, when the lump was removed and a biopsy determined it to be malignant.

Plaintiff further points out that it was only in August 1983 when she learned of the metastasis to her groin of the malignant schwannoma. She contends that it was only then that she knew that she had suffered damage as a result of the misdiagnosis. Thus, plaintiff asserts that the correct discovery date is no sooner than the date in August 1983 when she first became aware that the malignant schwannoma had metastasized to her groin.

The evidence adduced primarily through affidavits and depositions indicates a disputed material fact as to when plaintiff knew or, through use of reasonable diligence, should have known of her injury, the metastasis of the malignant schwannoma to lymph nodes in her groin. From our reading of the record, a trier of fact could conceivably find that plaintiff could not reasonably have known the nature of her disease before the biopsy of the growth taken from her right leg was determined to be a malignant schwannoma and that plaintiff could not have reasonably known that the defendants were failing to advise her as to the true nature of her disease.

The record demonstrates that from the time of plaintiff’s collision with her dog in July 1981 until April 1983, the treating physicians’ diagnoses and treatments for her right leg condition were conflicting and contradictory. For example in October 1981, Dr. Rosenzweig told her that she had no fracture in her right leg, while Dr. Kirk told her in July 1982 that a fracture in her right leg had healed. Further, no physician correctly diagnosed her condition until the growth was removed and microscopically examined. Dr. Ciric and Dr. Kline, both of whom could readily observe and feel the growth, failed properly to diagnose it, both diagnosing the lump as neuroma.

Plaintiff testified that she did not think Dr. Rosenzweig’s recommendation for ultrasound treatment made sense, and consequently, she did not follow up on such treatment. She also stated that she did not accept Dr. Berger’s evaluation of her leg problem, yet she testified that his failure to respond to the growth in her leg attenuated her resolve to seek further opinions. In either situation, a trier of fact could determine that plaintiff’s alleged failure to follow up was based on an uncertainty regarding her condition as reflected in the examination and recommendations, or lack thereof, of Drs. Rosenzweig and Berger. Indeed, given the failure of all plaintiff’s physicians to determine initially the existence of the growth and later to diagnose properly the nature of the lump, a trier of fact could determine that plaintiff’s actions in dealing with the growth were reasonable. A lay patient is not expected to diagnose or ascertain the nature of a medical condition when her physicians did not diagnose that condition. (Martinez v. Rosenzweig (1979), 70 Ill. App. 3d 155.) We find that a trier of fact could determine that the instant cause of action accrued when plaintiff learned of the metastasis of the cancer to lymph nodes in her groin in August 1983 and that plaintiff, who filed her action on March 25, 1985, had commenced this action within the statute of limitations. Consequently, the trial court erred in finding that the statute of limitations barred plaintiff’s complaint.

In addressing the issue of proximate cause, we initially observe that in a medical malpractice case, plaintiff must prove that it is more probably true than not true that defendant’s negligence was the proximate cause of plaintiff’s injury. (Russell v. Subbiah (1986), 149 Ill. App. 3d 268.) Questions of negligence, due care, and proximate cause are ordinarily questions of fact for a jury to decide and can become questions of law only when the facts are not only undisputed but are also such that there can be no difference in the judgment of reasonable men as to inferences to be drawn from them. Thomas v. Northington (1985), 134 Ill. App. 3d 141.

The court below, in granting defendant Berger’s motion for summary judgment, found that “[a]ny causal link between Plaintiff’s injury and Defendant was broken as a matter of law.” The trial court also stated, “When Plaintiff first saw Defendant [Berger] in February 1982 she was told that Defendant could not find a problem, that he would not treat her and she should see another doctor. Plaintiff formed the belief that Defendant’s examination was inadequate for her to rely upon, and that she disbelieved his findings.” This statement does not accurately reflect plaintiff’s deposition testimony, wherein she demonstrated an uncertainty as to what, if anything, to do following Dr. Berger’s examination in February 1982. Dr. Berger’s statement that he did not “treat legs,” when the record plainly shows that he removed a growth from plaintiff’s thigh in January 1981, further underscores the causes of her uncertainty as to what course to take. The opinion of Dr. Sweet, a board-certified oncologist, that Dr. Berger’s services to plaintiff deviated from the applicable standard of care further demonstrates that a trier of fact could conceivably determine that Dr. Berger’s failure to diagnose plaintiff’s condition or make appropriate referrals could or might have been the proximate cause of plaintiff’s injury, i.e., the metastasis of the malignant schwannoma to lymph nodes in her groin.

Regarding defendant HPOC, we find, as a matter of law, the treatment and medical advice provided by Dr. Arnold Cohn, an associate of HOPC, on February 14, 1983, did not proximately cause plaintiff’s injury. There is no evidence in the record to support a contrary finding. Regarding the services rendered by Dr. Rosenzweig in October 1981, plaintiff points out that defendant HPOC is not charged with having failed to diagnose correctly the specific presence of a cancerous lump but with failing to detect a condition which should have alerted him to a problem which other experts would properly have diagnosed.

Plaintiff’s unrebutted testimony indicates the following. Dr. Rosenzweig failed to take a family history that would have indicated cancer in her family. He did not pay attention to the fact that plaintiff had had a mastectomy due to breast cancer. Dr. Rosenzweig did not indicate that plaintiff was to follow up with him after completing the ultrasound treatments; and plaintiff thought that he was “through” with her following the examination on October 13, 1981. He was aware that there was a lump in the area where plaintiff felt pain and that the X ray, which was negative, did not determine the nature of the growth. The fact that plaintiff did not take the prescribed ultrasound treatments does not necessarily negate her charge that Dr. Rosenzweig’s failure to diagnose plaintiff’s condition or make appropriate referrals proximately caused her injury. We find that fair-minded persons could reasonably conclude that, having determined the absence of an orthopedic problem, Dr. Rosenzweig, at a minimum, should have referred plaintiff to an expert in another relevant medical discipline. Consequently, it is conceivable that a trier of fact could or might find that HPOC, through Dr. Rosenzweig, proximately caused the misdiagnosis of the malignant schwannoma which resulted in plaintiff’s injury. The trial court erred in granting HPOC’s motion for summary judgment which concerned the services provided by Dr. Rosenzweig.

For the reasons stated above, we reverse and remand this action for further proceedings consistent with this opinion.

Reversed and remanded with directions.

UNVERZAGT, P.J., and NASH, J., concur.


author: JUSTICE GOLDENHERSH

text:
      In re MARRIAGE OF DONNA J. ROBINSON, Petitioner-Appellee, and BILLY J. ROBINSON, Respondent-Appellant.
    Fifth District
    No. 5—87—0825
    Opinion filed June 14, 1989.

      Brinkoetter & Barnes, P.C., of Decatur, for appellant.
    Burger, Fombelle, Baxter, Zachry & Rathbun, P.C., of Decatur (Kent A. Rathbun, of counsel), for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Respondent, Billy J. Robinson, appeals from the judgment of the circuit court of Shelby County denying his motion to terminate temporary maintenance. The circuit court found that the maintenance order was maintenance in gross and as such was nonmodifiable. On appeal respondent raises the issue whether the trial court erred in determining that the maintenance order was an order providing for maintenance in gross.

On May 26, 1983, petitioner, Donna Robinson, filed a petition for dissolution of marriage. On June 18, 1985, the court entered a memorandum judgment regarding the property division, which stated:

“9 — That Temporary Maintenance should be awarded to WIFE, to allow her to rehabilitate herself, to allow for the transitional period, to allow her to undergo educational and/or job-training experience, and to allow her to obtain employment. The Court orders HUSBAND to pay to WIFE said maintenance as follows:
$1500.00 per month, beginning July 1, 1985, for 24 months; and
$750.00 per month, beginning July 1, 1987, for the next 36 months.
Same is to be payable from the income, or the property, or both, of HUSBAND.”

In the court’s July 12, 1985, judgment, it amended the memorandum judgment regarding the $750 monthly maintenance. Instead of 37 months, the court amended it to state, “$750 per month on July 1, 1987 and on the 1st day of the next 35 months thereafter. Thereafter, Plaintiff shall be barred of further maintenance from Defendant.”

In dividing the marital property, the court also awarded:

“In addition thereto, the Court directs that WIFE receive cash in the amount of $175,000.00; and orders that same be paid by HUSBAND to WIFE as follows:
$10,000.00 by August 1,1985,
$15,000.00 by October 1,1985, and
$150,000.00 to be paid in ten (10) annual principal installments of $15,000.00 each, plus annual interest payments to likewise be payable at the annual rate of 10%, payable from July 1, 1985 on the said remaining unpaid principal; said payments of principal and interest to be due and payable on the 1st day of July of each year, commencing on July 1, 1986. The Court orders that a lien attach to the 400 acre farm to secure the payments herein provided for.”

In addition to the above payments, the court denied petitioner’s request for permanent maintenance and granted temporary maintenance to her as set forth hereinabove. Later, on September 27, 1985, the court entered an order which in part amended the maintenance. The order stated that the maintenance payments would terminate upon death or remarriage of petitioner.

On October 1, 1987, respondent filed a petition for termination of temporary maintenance alleging that he “has experienced a substantial reduction in income since the Judgment of Dissolution of marriage was entered.” The hearing on the motion was held on November 6. Thereafter, the court entered an order in the docket sheet finding that the temporary maintenance cannot be modified because it was maintenance in gross. From this order, respondent appeals.

The question before this court is whether the trial court erred when it determined that the maintenance order was for maintenance in gross and as such nonmodifiable. Respondent argues that section 510 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1983, ch. 40, par. 510) does not distinguish between maintenance and maintenance in gross, and as such, all maintenance orders are modifiable under appropriate circumstances. Petitioner responds that the order was rehabilitative maintenance in gross because, for one reason, the trial court held that respondent lacked credibility and dissipated marital assets.

This court initially notes that respondent’s argument does not correctly cite the law because maintenance in gross is nonmodifiable. This court also finds that the record does not support petitioner’s argument because respondent had paid all of his obligations to petitioner prior to this appeal and only requested termination of maintenance in light of his alleged change in circumstances.

One goal of the Act is “to permit the parties to sever economic ties within a reasonable time period and to provide an incentive for a spouse seeking maintenance to acquire the skills necessary to become self-sufficient.” (In re Marriage of Callaway (1986), 150 Ill. App. 3d 712, 716-17, 502 N.E.2d 366, 370.) The goal of the Act embodies the concept which is to help and encourage a spouse to regain dormant employment skills or develop new ones (In re Marriage of Bramson (1981), 100 Ill. App. 3d 657, 659, 427 N.E.2d 285, 287); and in certain situations, to provide supplementary income where the spouse cannot support herself in her predissolution lifestyle (In re Marriage of Heller (1987), 153 Ill. App. 3d 224, 233, 505 N.E.2d 1294, 1301). Where the court has set a specific point in time for a termination date, the court may reserve jurisdiction to review the award. (In re Marriage of Asch (1981), 100 Ill. App. 3d 293, 298, 426 N.E.2d 1066, 1069.) A specific termination date should not be set unless the evidence clearly indicates that the supported spouse will be able to provide for her own financial needs at a specific point in time. (In re Marriage of Bramson (1981), 100 Ill. App. 3d 657, 659, 427 N.E.2d 285, 287.) “One purpose of a future review of maintenance is to ensure that the ultimate-amount and duration of maintenance will be based on the parties’ actual needs and abilities, not on speculation as to their future conditions.” (Beermann & London, Rehabilitative Maintenance in Illinois, 75 Ill. B.J. 658, 664 (1987), citing In re Mar riage of Campise (1983), 115 Ill. App. 3d 610, 614, 450 N.E.2d 1333, 1336.) This court agrees:

“An order for rehabilitative maintenance should satisfy three objectives. First, it should encourage and enable a formerly dependent spouse to become self-supporting. Second, it should allow for the continuation of maintenance on review if the spouse is genuinely unable to be self-supporting. Third, it should allow for a reduction or termination of maintenance if an able recipient fails to make a diligent attempt to become self-sufficient. An order which meets all of those objectives will be fair to both parties and consistent with the letter and spirit of section 504 of the Illinois Marriage and Dissolution of Marriage Act.” 75 Ill. B.J. at 665.

While rehabilitative maintenance enables a once-dependent spouse to be independent, maintenance in gross is used where an award of periodic maintenance is not feasible. (In re Marriage of Smith (1986), 150 Ill. App. 3d 34, 36, 501 N.E.2d 1323, 1324.) In In re Marriage of Freeman (1985), 106 Ill. 2d 290, 478 N.E.2d 326, the supreme court found that maintenance in gross has the same meaning as alimony in gross under the former Act and further found that periodic maintenance is different from maintenance in gross. 106 Ill. 2d at 298, 478 N.E.2d at 329.

In this case, the order and the circumstances reveal that the court ordered, not maintenance in gross, but rather rehabilitative maintenance. During the 34-year marriage, petitioner was not employed outside the home. She married respondent when she was approximately 16 years old. She never received a high school diploma and did not acquire any other type of training outside of the home. Although this court does not downplay the services and work performed while at home, this court notes that petitioner does not have any transferable skills enabling her to exist on her own. She is a woman in her fifties who was dependent on her husband’s income to manage the house and care for their children. Her dependent relationship is exactly what the Act regarding an award of rehabilitative maintenance is designed to recognize. Although respondent stressed throughout the record that petitioner did not contribute cash to the marriage, this court does not overlook her work at home and influence on their children. Four of the children have received college degrees and the youngest was in college at the time of the divorce. Although her contributions to the marriage cannot be expressed in an absolute monetary value, the legislature acknowledged the value of a housewife’s contribution when it amended section 503 of the Act. (111. Rev. Stat. 1983, ch. 40, par. 503(d).) Furthermore, the trial court’s order specifically stated that the purpose of these payments was to enable petitioner to rehabilitate herself, support herself during a transitional period and permit her to undergo educational and/or job training experience or obtain employment. This court finds that the trial court erred when it determined that the temporary maintenance award was actually nonmodifiable maintenance in gross. Accordingly, this court finds that the order is modifiable upon a showing of change of circumstances and remands this cause for further proceedings.

Upon remand, petitioner, in light of her circumstances, may seek to have the court modify the automatic termination date, but she must first present the issue before the trial court. (See Rice v. Rice (1988), 173 Ill. App. 3d 1098, 1101, 528 N.E.2d 14, 16.) However, she must show that she has met the affirmative duty to acquire sufficient education or training to find employment. (Ill. Ann. Stat., ch. 40, par. 504(b)(2), Historical & Practice Notes, at 529 (Smith-Hurd 1980).) Without a motion to modify, the maintenance order will terminate as scheduled.

Petitioner, in her issue II, argues that this court should not, if it reverses, remand the cause for a hearing on respondent’s motion to terminate because respondent failed to sustain his burden of proving circumstances justifying termination. Petitioner argues, “A reviewing court will affirm the judgment of the trial court if it is justified in the law for any reason or ground appearing in the record regardless of the reasons given by the trial judge.” (Conte v. Horcher (1977), 50 Ill. App. 3d 151, 155, 365 N.E.2d 567, 570.) However, the order entered by the trial court did not reach the merits of the issue. Before this court can address the issue, the trial court must be given a chance to determine it.

For the foregoing reasons, this court reverses the judgment of the circuit court of Shelby County and remands for further proceedings not inconsistent with this opinion.

Reversed and remanded.

RARICK and CHAPMAN, JJ., concur.