text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOE LAUE, Defendant-Appellant.
    Fifth District
    No. 5—90—0161
    Opinion filed October 8, 1991.

      Daniel M. Kirwan and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Paula Phillips, State’s Attorney, of Effingham (Kenneth R. Boyle, Stephen E. Norris, and Diane L. Campbell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Defendant, Joe Laue, was tried by a jury in Effingham County for the aggravated battery of Darrell Gallup, an alleged physically handicapped person. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(14).) The jury found defendant guilty of battery by making contact of an insulting or provoking nature (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 3(a)(2)) and not guilty of battery by causing bodily harm (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 3(a)(1)). The trial court sentenced defendant to two years’ probation for battery, and he appeals his conviction.

We first address defendant’s contention that the trial court erred when it directed a verdict of not guilty of aggravated battery, thereafter allowed the State to file an information charging two counts of battery, and continued the trial based on the newly filed charges. After the State rested its case based on the original charge of aggravated battery, defendant moved for a directed verdict, arguing that the State had failed to prove beyond a reasonable doubt that defendant knew the individual harmed to be physically handicapped. The State noted that if the court ruled in defendant’s favor, it would be filing a battery charge as “Count II.” After a brief recess, the following colloquy occurred between the trial court and defense counsel:

“THE COURT: The Court, first of all, finds that the State has the burden of proof beyond a reasonable doubt showing that the defendant *** knew that the victim was a physically handicapped person, although that was not the way the Information is drafted. That’s the way the law is. Secondly, the Court finds that the State has not produced sufficient evidence to prove, to allow any jury verdict to stand which would include a finding that the defendant knew that Darrell Gallup was a physically handicapped person as described in the statute. I quite frankly am not sure where that leaves us with regard to the question of proceeding on battery. If the State wishes to do so, battery would be an included offense. Mr. Stasiulis, is it your position that the State cannot proceed?
MR. STASIULIS: Yes, Judge.
THE COURT: Okay, what the Court is going to do is recess the jury until 1:00, and we will take this matter up at 12:00.
MR. STASIULIS: Your Honor, I’m not arguing with the Court. Just so I understand. Has the Court directed a not guilty on aggravated battery?
THE COURT: The Court finds that *** there is no [sic] sufficient evidence to submit that question to the jury, and that is all the Court is finding right now.”

During the ensuing recess, the State filed battery counts II and III. Upon reconvening, the court heard additional argument and then stated that it was granting a directed verdict with regard to count I and would proceed with trial on counts II and III.

On appeal, the State argues that the trial court did not direct the verdict on aggravated battery until after counts II and III were filed. The State contends that “the judge made a finding of insufficiency but specifically reserved any other ruling or action.”

However, the granting of a motion to direct a verdict is an acquittal and it is immaterial whether the directed verdict has been announced to the jury or reduced to writing. (People v. Poe (1984), 121 Ill. App. 3d 457, 462, 459 N.E.2d 667, 671; People v. Stout (1982), 108 Ill. App. 3d 96, 98-99, 438 N.E.2d 952, 954-55.) Further, what constitutes an acquittal is not to be controlled by the form of the court’s action. Rather, the question is whether the ruling of the court, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged. United States v. Martin Linen Supply Co. (1977), 430 U.S. 564, 571, 51 L. Ed. 2d 642, 651, 97 S. Ct. 1349, 1354-55; see also People v. Deems (1980), 81 Ill. 2d 384, 388-89, 410 N.E.2d 8, 10-11, cert. denied (1981), 450 U.S. 925, 67 L. Ed. 2d 355, 101 S. Ct. 1378.

Section 115 — 4(k) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 4(k)) provides:

“When, at the close of the State’s evidence or at the close of all of the evidence, the evidence is insufficient to support a finding or verdict of guilty the court may and on motion of the defendant shall make a finding or direct the jury to return a verdict of not guilty, enter a judgment of acquittal and discharge the defendant.”

Here, therefore, when the trial court evaluated the State’s evidence and determined that it was legally insufficient to sustain a conviction, the court effectively directed a verdict on the aggravated battery charge and such determination was tantamount to an acquittal. Indeed, the record shows that the court believed that an order directing the verdict had been made prior to the filing of counts II and III where, in denying defendant’s motion for a new trial, the court stated:

“I am not certain that the procedure that the Court allowed in this case, allowing the State to file additional charges after a directed verdict on the Information^] was correct, but that is the Court’s ruling and I have not been presented with any cases to indicate that was erroneous *** although I certainly express some concern about that procedure.” (Emphasis added.)

Once the initial prosecution has resulted in either a conviction or acquittal on any of the charges known to the prosecutor, the State may not thereafter amend the information by adding charges for which the defendant could have been convicted and which should have been joined in the initial prosecution. (People v. Lewis (1983), 112 Ill. App. 3d 626, 630, 445 N.E.2d 916, 919; People v. Mullenhoff (1965), 33 Ill. 2d 445, 448-49, 211 N.E.2d 744, 746; People v. Murray (1982), 106 Ill. App. 3d 50, 52, 435 N.E.2d 772, 773-74.) In Lewis, the State was prohibited from amending an information by adding additional charges for a second trial after defendant was acquitted of attempted murder and a mistrial was declared on other charges, even though the added charges were alternative pleadings of offenses originally charged. In Mullenhoff, an acquittal on the charge of deviate sexual assault barred a subsequent prosecution for attempted rape since both crimes were known to the prosecution and were based upon a single act. Similarly in Murray, an acquittal for mob action barred prosecution for obstructing a peace officer where both were based on a single act.

In the instant case, therefore, the addition of two battery charges, based upon the same physical act as the original aggravated battery charge of which defendant had been acquitted, was improper. Although the information could have been properly amended to add the new charges prior to trial, the State did not do so, and its failure precluded it from doing so after the first trial was effectively ended by the directed verdict. See Lewis, 112 Ill. App. 3d at 631, 445 N.E.2d at 920; Ill. Rev. Stat. 1989, ch. 38, pars. 3 — 3(b), 3 — 4(b).

Further, as in Lewis, “[t]he fact that the added charges are alternative pleadings of the offensef ] originally charged does not make the subsequent prosecution *** any less onerous than if a wholly new crime had been charged.” (Lewis, 112 Ill. App. 3d at 631, 445 N.E.2d at 920.) Section 3 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 3 — 3) places the burden on the prosecutor to either elect the charge on which he desires to proceed or to proceed on both charges. Failing to proceed on both offenses in a single prosecution, the State must be barred by the first acquittal. (Mullenhoff, 33 Ill. 2d at 449, 211 N.E.2d at 746.) We therefore conclude that defendant’s prosecution on the additional counts of battery was barred by his prior acquittal of aggravated battery and his conviction for battery must be reversed.

In light of this disposition, it is unnecessary to address defendant’s second contention regarding the propriety of his sentence for battery. The judgment of conviction entered and the sentence imposed by the trial court for battery are reversed.

Reversed.

RARICK, P.J., and HOWERTON, J., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    CORINA FRYE, as Special Adm’r of the Estate of Stephen Frye, Deceased, Plaintiff-Appellant, v. MEDICARE-GLASER CORPORATION et al., Defendants-Appellees.
    Fifth District
    No. 5—90—0559
    Opinion filed October 8, 1991.
    Rehearing denied October 30, 1991.
    Paul Thomas Austin, of Marion, for appellant.
    W.A. Armstrong, of Mitchell & Armstrong, Ltd., of Marion, for appellees Medicare-Glaser Corporation and Evelyn Nightengale.
    No brief filed for appellee John Barrow.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Gorina Frye, as special administrator of the estate of Stephen Frye, deceased, filed a two-count complaint against Dr. John Barrow, M.D., for medical malpractice, alleging that the doctor failed to warn plaintiff’s decedent of the dangerous effects of taking the drug Fiorinal and drinking alcoholic liquor. In count II of the complaint plaintiff sued Medicare-Glaser Corporation (Medicare-Glaser), the pharmacy that filled the prescription, and Evelyn Nightengale, the registered pharmacist and employee of Medicare-Glaser, on a theory of negligent undertaking. Plaintiff alleged that, although defendants had no duty to warn of the dangerous side effects of the drug in the first instance, they undertook to warn, did so negligently, and caused the death of Stephen Frye.

Defendants Medicare-Glaser and Evelyn Nightengale filed a motion for summary judgment and contended that neither the pharmacy nor the pharmacist had any duty to warn of the dangerous side effects of drugs. The trial court granted defendants’ motion for summary judgment, and plaintiff appeals.

Plaintiff’s decedent, Stephen Frye, had arthroscopic surgery on his knee performed by Dr. John Barrow, who prescribed the drug Fiorinal following the surgery. Evelyn Nightengale filled the prescription. Dr. Barrow did not include any direction or instruction in the prescription to place any label on the capsule container or to give any warning that alcohol should not be consumed when taking the drug. When Nightengale’s deposition was taken she testified that in preparing the label for the prescription, patient information is typed into the Medicare-Glaser computer, and the label is printed out. In this case Nightengale filled the prescription and labeled the container using the label generated by the computer, identifying the prescriber of the medication, the patient, and the dosage as indicated by the physician in his prescription.

Nightengale testified that in addition to printing the label, the computer is programed to print a separate document that lists warnings that might be applied to the patient’s container of medication. When asked what standard warnings will be suggested by the software when the drug Fiorinal is typed in, Nightengale answered, “drowsiness *** alcohol and *** impairing ability to drive.” Nightengale explained that these warnings may be given as three separate cautionary labels, or may be combined into one. In the instant case, Nightengale attached two labels to the back of the container of medication. On the first label appeared a logo of a sleepy eye with the words, “May Cause DROWSINESS.” The second label read, “CAUTION: Federal Law prohibits the transfer of this drug to persons other than the patient to whom it was prescribed.”

Nightengale testified that the label which warned about the effects of alcohol when used in combination with the drug Fiorinal said “something to the effect that alcohol may intensify the effect of this drug.” The decision whether or not to place any of the suggested warnings on the container is left to the discretion of the pharmacist filling the prescription. Nightengale testified that she did not use the warning label warning about the effects of alcohol use because she believed people might be offended to think that she believed they drank.

Plaintiff claims that Stephen Frye died as a result of consuming Fiorinal and alcohol. Our task is not to determine if Frye in fact died as a result of the combined use of Fiorinal and alcohol. For the purpose of determining whether the court erred in granting summary judgment, we must only decide whether a pharmacist can be held liable for injuries or death to the consumer if she undertakes to warn the consumer of the dangerous side effects of a prescription drug and does so negligently.

Where the material facts are undisputed and the sole question presented is the application of law to those facts, summary judgment is a proper way to dispose of a case. Similarly, if controlling law establishes that the complaint fails to state a cause of action under Illinois law, summary judgment would be proper. (Vesey v. Chicago Housing Authority (1990), 205 Ill. App. 3d 962, 966-67, 563 N.E.2d 916, 920.) Based on the record in this case we find that the trial court erred in entering summary judgment in favor of the defendants.

Defendants contend that they cannot be held liable to the plaintiff because the law imposes no duty upon a pharmacy or its agents to warn customers of the dangers of taking prescription drugs in combination with other drugs or to warn of the dangerous side effects of prescription drugs. In support of their position defendants cite Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387, Eldridge v. Eli Lilly & Co. (1985), 138 Ill. App. 3d 124, 485 N.E.2d 551, and Leesley v. West (1988), 165 Ill. App. 3d 135, 518 N.E.2d 758.

In Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387, the supreme court applied the “learned intermediary” doctrine:

“The rule *** provides that manufacturers of prescription drugs have a duty to warn prescribing physicians of the drugs’ known dangerous propensities, and the physicians, in turn, using their medical judgment, have a duty to convey the warnings to their patients.” (Kirk, 117 Ill. 2d at 517-18, 513 N.E.2d at 392.)

Kirk was a passenger injured in an automobile accident, which plaintiff claimed was caused by his driver McCarthy’s incapacitation due to the ingestion of certain prescribed medications and an alcoholic beverage. Plaintiff sued the physicians who prescribed the drugs and the hospital which supplied them and claimed that they negligently failed to warn the driver of the drugs’ dangerous side effects. Plaintiff’s complaint against the hospital sounded in both strict liability and negligence.

Under the strict liability counts, the plaintiff alleged that the products — the prescription drugs — were made unreasonably dangerous through the hospital’s alleged failure to warn the patient, McCarthy, of their possible adverse effects. The trial court dismissed the strict liability counts stating that there was no duty to Kirk under strict liability principles because there was no duty to the nonpatient, nonuser of the product. (Kirk, 117 Ill. 2d at 522, 513 N.E.2d at 394.) The trial court’s dismissal of the strict liability counts was affirmed on appeal.

The supreme court also affirmed the trial court’s dismissal of plaintiff’s negligence count against the hospital. Plaintiff alleged that Michael Reese Hospital had a duty, in prescribing the drugs, to adequately warn McCarthy of adverse effects the drugs might have on his ability to safely operate an automobile. The supreme court held that “public policy and social requirements do not require that a duty be placed upon the hospital to warn the patient of the dangers of using the drug, prescribed by [her] physician, that would be extended to third-party nonpatients who have no patient-hospital relationship or a special relationship with a patient.” Kirk, 117 Ill. 2d at 527, 513 N.E.2d at 397.

Cited with approval in Kirk is Eldridge v. Eli Lilly & Co. (1985), 138 Ill. App. 3d 124, 485 N.E.2d 551, a wrongful death action in which it was alleged that the decedent died as a result of a drug overdose. The Eldridge court affirmed the dismissal of plaintiff’s complaint against the pharmacist, holding that a pharmacist has no common law or statutory duty to refuse to fill a prescription simply because it is for a quantity beyond that normally prescribed or to warn the patient’s physician of that fact. (138 Ill. App. 3d at 130, 485 N.E.2d at 554-55.) In rendering its decision the court reasoned:

“The propriety of a prescription depends not only on the propensities of the drug but also on the patient’s condition. A prescription which is excessive for one patient may be entirely reasonable for the treatment of another. To fulfill the duty which the plaintiff urges us to impose would require the pharmacist to learn the customer’s condition and monitor his drug usage. To accomplish this, the pharmacist would have to interject himself into the doctor-patient relationship and practice medicine without a license.” 138 Ill. App. 3d at 127, 485 N.E.2d at 553.

Leesley cited Kirk and Eldridge and also applied the learned intermediary doctrine. In Leesley the plaintiff sued for damages resulting from severe gastrointestinal bleeding caused by a prescription drug. The pharmacist who supplied the drug received the pills it distributed to the plaintiff in a bulk container to which the drug manufacturer had glued a “package insert” describing the drug’s chemical properties and potential hazards. The pharmacist did not convey any of that information to the plaintiff, nor was it instructed to do so by the plaintiff’s physician. The court found in favor of the defendant-pharmacist and declined to subject pharmacists to liability for failing to give warnings which the physician had not requested. Leesley, 165 Ill. App. 3d at 143, 518 N.E.2d at 775.

We recognize that under the learned intermediary doctrine the defendants in this case were under no initial duty to provide warnings regarding Fiorinal to Stephen Frye. However, the plaintiff in this case has framed her claim on the theory that the defendants negligently performed the voluntary undertaking of properly warning Stephen Frye of the dangers of Fiorinal. That theory, espoused in section 323 of the Restatement (Second) of Torts (1965), has been applied in Illinois in various contexts. (Greene v. City of Chicago (1976), 48 Ill. App. 3d 502, 363 N.E.2d 378, aff’d (1978), 73 Ill. 2d 100, 382 N.E.2d 1205.) Section 323 provides:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.” Restatement (Second) of Torts §323 (1965).

In Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596, our supreme court held that liability may attach where a landlord voluntarily undertakes to provide security measures, but performs the undertaking negligently. The court held that the Chicago Housing Authority (CHA) engaged in a voluntary undertaking when it contracted with a security agency to provide protective services for tenants and social guests. Pippin relied on the earlier decision of Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 199 N.E.2d 769 (insurer held responsible in tort for personal injuries suffered as a result of the insurer’s negligent performance of a voluntary inspection of the premises where the injuries occurred), which based its holding on the principle stated in section 323(1) of the first Restatement. Section 323(1) of the first Restatement provides:

“One who gratuitously renders services to another *** is subject to liability for bodily harm caused to the other by his failure, while so doing, to exercise *** such competence and skill as he possesses.” Restatement of Torts §323(1) (1934).

Although Pippin and Nelson based their decisions on section 323 of the first Restatement, the principles espoused in those opinions are applicable here in our application of section 323 of the second Restatement.

The plaintiff does not contend that the warning actually given was inaccurate; one of the side effects of Fiorinal is that it causes drowsiness. Assume for a moment, however, that a pharmacist gave a completely inaccurate warning, i.e., “Alcohol in moderate amounts may augment the effectiveness of Fiorinal,” and that a consumer combined alcohol and Fiorinal with disastrous results. Should the learned intermediary doctrine protect the pharmacist under these circumstances? We think not. A consumer with no warning from a pharmacist must consult his physician to obtain additional information. A consumer who receives a warning from his pharmacist is entitled to rely upon the accuracy and the completeness of that warning.

Like the defendants in cases discussed earlier, the defendants herein had no initial duty to protect the plaintiff but voluntarily assumed a duty by placing a warning on the drug. In this case defendants, having undertaken to warn, assumed the duty to do so in a reasonable manner. Plaintiff has alleged that the warning given was not appropriate under the circumstances. Defendants can, therefore, be liable for injuries or death to the consumer if they undertook to warn the consumer of the dangerous side effects of a prescription drug and did so negligently. Therefore, the trial court erred in entering summary judgment in favor of the defendants.

This cause is reversed and remanded to the circuit court for further proceedings not inconsistent with this opinion.

Reversed and remanded.

HARRISON and GOLDENHERSH, JJ., concur.


author: JUSTICE WELCH

text:
      In re MARRIAGE OF SHARON WAECKERLE, Plaintiff-Appellant, and DAN WAECKERLE, Defendant-Appellee.
    Fifth District
    No. 5—90—0260
    Opinion filed October 9, 1991.
    Storment & Read, of Belleville, for appellant.
    Margaret J. Walsh, of Wimmer, Stiehl & Montalvo, P.C., of Belleville, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Petitioner, Sharon Waeckerle, appeals from orders entered by the circuit court of St. Clair County on January 19, 1990, and March 30, 1990, respectively. The court’s order of January 19, 1990, provided, in pertinent part, that petitioner was entitled to 22% of the proceeds of respondent Dan Waeckerle’s personal injury claim which was pending at the time the parties’ judgment of dissolution of marriage was entered. Following consideration of petitioner’s motion for rehearing, the circuit court found in its order of March 30, 1990, that the January 19, 1990, order should stand as the order of the court.

Sharon Waeckerle filed a petition for dissolution of marriage from Dan Waeckerle on August 21, 1986. A judgment of dissolution of marriage was entered by the circuit court on December 18, 1986, incorporating therein the parties’ property settlement agreement of same date. The property settlement agreement provided inter alia:

“The Wife shall be entitled to 22% of the net proceeds the Husband receives by way of settlement or otherwise from his claim now pending in the Circuit Court of Madison County, Illinois, against Alton & Southern Railroad in Cause No. 85 — L— 534. Net proceeds are those proceeds which remain after deduction of the attorney’s fees and expenses incurred.”

As of December 18, 1986, Dan Waeckerle had a Federal Employers’ Liability Action (FELA) with the above-stated cause number pending in the Madison County circuit court against the Alton & Southern Railroad. According to his complaint filed on June 7, 1985, respondent’s injuries were allegedly incurred on May 6, 1985, during his employment with said railroad.

Respondent was allegedly injured in a second, unrelated accident occurring during his employment with the Alton & Southern Railroad on February 20, 1987. A first amended complaint adding count II to cause number 85 — L—534 seeking damages for personal injuries suffered as a result of this second accident was filed by respondent on July 28, 1987. A settlement was reached between the Alton & Southern Railroad and Dan Waeckerle on both counts of his complaint, as amended, on February 17, 1989, the terms of which were set forth in individual FELA statements of settlement and distribution. The net settlement for count I was $17,297.85 and the statement provided that 22% thereof, or $3,805.53, was to be paid to Sharon Waeckerle pursuant to the decree of divorce. The net settlement for count II was $169,328.47 and the statement provided that 22% thereof, or $34,727.13, should be held in escrow until resolution of the dispute with regard to petitioner’s right to 22% of the proceeds of the settlement of count II of his FELA complaint.

Dan Waeekerle filed a motion to enforce the judgment of dissolution of marriage with the circuit court of St. Clair County on May 11, 1989, joining the escrow agent, Jon Carlson, as a defendant therein. In respondent’s motion he alleged that Sharon Waeekerle had refused to sign any releases with regard to the FELA action and he was thus prevented from receiving net proceeds from either count of the complaint. Respondent further alleged that petitioner was claiming entitlement to 22% of the net settlement from both counts of the FELA complaint and contended that under the property settlement agreement, Sharon Waeekerle was not entitled to any of the proceeds from count II because that part of the action was not pending as of the date of the judgment of dissolution of marriage. Respondent sought the following relief, pertinent to our consideration in this appeal, in his motion to enforce the judgment:

“A. For an order requiring Defendant, Jon G. Carlson[,] to release 22% of the net proceeds of the claim pending in Madison County on December 12, 1986, in accordance with the terms of the Judgment of Dissolution of Marriage.
B. For an order requiring Defendant, Jon G. Carlson[,] to release the remainder of the proceeds of both claims to Respondent, Dan Waeekerle.
C. For an order requiring Petitioner, Sharon Waeckerle[,] to execute a release after same has been paid as described herein-above.”

In this appeal we are asked to determine whether the circuit court of St. Clair County erred in not allowing Sharon Waeekerle a 22% share of the total net damage settlement Dan Waeekerle received from the Alton & Southern Railroad. We initially note that pursuant to the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 101 et seq.), “marital property” means all property acquired by either spouse subsequent to the marriage with the exception of certain property which is statutorily considered to be “nonmarital property,” none of the exceptions of which is pertinent to the issue before us on review. (See Ill. Rev. Stat. 1989, ch. 40, par. 503(a).) This section of the Illinois Marriage and Dissolution of Marriage Act also creates a presumption of marital property for all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage. Ill. Rev. Stat. 1989, ch. 40, par. 503(b).

Sharon Waeckerle contends that under a proper interpretation of the property settlement agreement she is entitled to her 22% share of the entire FELA settlement irrespective of whether the case against the railroad was amended to include the accident which occurred after entry of the judgment of dissolution of marriage. In the alternative, petitioner argues that because the two injuries which together caused respondent’s permanent back injury were so interconnected, it was impossible to divide the monetary recovery according to the injury received in the first accident from the injury received in the second accident; therefore, she is entitled to 22% of the entire recovery.

Petitioner argues in support of her first contention that a plain reading of the property settlement agreement evidences an intent that she share in the entire FELA settlement because Madison County cause number 85 — L—534 was, as a matter of record, a case encompassing both FELA causes of action. We note that the record indicates that Dan Waeckerle’s first FELA injury was a soft tissue back strain in the L5 — SI region that was incurred when respondent was using a pry bar in an attempt to straighten and adjust a load of metal racks located on a flatcar. Respondent was injured in that accident in May 1985 and was temporarily disabled from returning to work until September 1985. The record indicates that respondent’s second FELA injury, which was incurred in February 1987, involved an aggravation of the preexisting back injury and was caused when Waeckerle drove a vehicle over exposed rail at an unposted rail crossing. This second injury resulted in his permanent disability from returning to railroad work. Respondent also suffered from a developmental defect in the neural arch of the L5 level of his spine which preexisted any trauma to respondent’s back. This condition, known as spondylolysis, which is generally asymptomatic, can indicate a predisposition for injury in the area of the defect. The record further indicates that respondent was involved in an automobile accident in August 1986 in which he injured his left knee cap and exhibited back pain in approximately the same location as the May 1985 injury.

With regard to the two injuries alleged in respondent’s FELA complaint, we note that the negligent aggravation of a preexisting injury caused by another’s negligence is a separate and distinct tort from the tort committed by the first wrongdoer, and injuries inflicted by each are separate and distinct injuries. (Yanan v. Ewing (1990), 205 Ill. App. 3d 96, 101, 562 N.E.2d 1243, 1246.) The cause of action set forth in count II of the FELA complaint was therefore a separate property right and nonmarital in nature since it arose following the entry of the judgment of dissolution. Moreover, section 502 of the Illinois Marriage and Dissolution of Marriage Act provides that parties to a dissolution of marriage proceeding may enter into agreements containing provisions for disposition of any property owned by either of them. (See Ill. Rev. Stat. 1989, ch. 40, par. 502(a).) The February 1987 cause of action could not have been in the contemplation of the parties when they entered into the December 18, 1986, property settlement agreement because the accident alleged in said count had not yet occurred. We therefore hold that the cause of action for the personal injuries claimed in count II of the FELA complaint which occurred after the judgment of dissolution of the parties’ marriage was not marital property under section 503 of the Illinois Marriage and Dissolution of Marriage Act and could not properly have been considered part of the Waeckerles’ property settlement agreement under the first theory espoused by petitioner.

We will next examine the record with regard to petitioner’s alternate contention, that the injuries incurred by respondent in the two accidents were so interconnected that divisibility of damages would be impossible. Jon G. Carlson testified at the August 7, 1989, hearing on the motion to enforce the judgment that he was Dan Waeckerle’s attorney in the FELA action against the Alton & Southern Railroad. He testified that following the second railroad injury he decided to amend the pending FELA action against the railroad and add a second count for the February 1987 injury rather than file a separate FELA action because he felt it would be a way of getting the second, more significant case to court sooner. He further testified that he had considered dismissing the original FELA complaint prior to trial, because he believed the case was “a loser” but determined that it should not be dismissed because of Sharon Waeckerle’s interest in the proceeds of that claim. Carlson testified that the railroad made its offer of settlement during the voir dire stage of the trial. He testified that he was offered $25,000 for the first case, which he felt was “a gift.” The FELA statements of settlement and distribution for both counts of respondent’s FELA case were admitted into evidence.

Petitioner moved to strike Carlson’s testimony because he had not brought the medical depositions taken in the FELA case with him to court and argued against consideration of Carlson’s opinion as to the value of each case. Petitioner further implied that the settlement had been manipulated by respondent’s FELA attorney so that Dan Waeckerle could realize the greatest amount of net proceeds possible. The court ruled that Carlson could testify as to his opinion as to the value of both FELA cases, and attorney Carlson further opined that in the second case respondent’s contributory negligence would have been assessed by a jury at zero while in the first case he may have been found to have been as much as 90% contributorily negligent. Respondent testified in rebuttal that he had never asked his attorney to manipulate the claims to prevent petitioner from getting her money. Respondent further stipulated at this hearing that the medical reports and depositions taken in his FELA case could be submitted into evidence with regard to the instant case. The court ordered that attorney Carlson should produce the medical reports and depositions taken in the FELA case and that at that time petitioner could follow up with further opinion evidence on the issue of the interconnection of the two injuries precluding a separate valuation thereof.

Following submission of the FELA medical reports and depositions by attorney Carlson to the parties, a hearing was set on January 12, 1990, to consider argument on the issue of the indivisibility of damages because of the interconnection of the two injuries. The court continued the hearing by ex parte order of January 12, 1990, based on motion of petitioner that her attorney was out of the country and unable to attend the hearing. Attorney for respondent moved to set aside this order of continuance, which motion was denied. However, by separate order of January 12, 1990, the court reset the cause for argument on January 19, 1990. Petitioner’s attorney also failed to appear at the hearing on January 19, 1990. Based upon petitioner’s memorandum of law submitted by respondent and respondent’s rebuttal argument thereto, and the exhibits and testimony presented at the August 1989 hearing, the court entered its order of January 19, 1990, finding that petitioner was entitled to 22% of the FELA claim pending at the time the parties’ judgment of dissolution was entered.

Petitioner filed a motion to set aside the January 19, 1990, order because of failure to receive notice that the hearing had been reset. This motion was heard on February 28, 1990, wherein petitioner argued in support of the indivisibility of damages issue that she should be permitted to submit certain medical depositions taken in respondent’s FELA case to support her contention that it was a combination of all of the accidents that caused respondent’s permanent back injury. The court treated the February 28, 1990, argument as petitioner’s motion for rehearing and permitted submission, as exhibits, of the evidence and discovery depositions of Dr. George Schoedinger and the discovery depositions of Dr. Barbara Beuckman, Dr. Max Golden-berg, Dr. Lawrence Bauer, and Dr. Marlou Davis. Petitioner also submitted as exhibits the parties’ judgment of dissolution and the original and amended FELA complaints. Respondent also submitted a medical report prepared by Dr. Davis concerning respondent’s condition in February 1989 as a further exhibit for the court’s consideration on this issue. The court took the matter under advisement and thereafter on March 30, 1990, ruled that the court’s order of January 19, 1990, should stand as the order of the court.

Our independent review of the depositions taken of respondent’s examining and treating physicians in the FELA case indicates a consensus among these doctors that a soft tissue injury such as respondent experienced in May 1985 creates a weakened condition in the area of the injury rendering the patient extremely susceptible to reinjury in that area. It is further apparent from these depositions that both the August 1986 automobile accident and the February 1987 FELA injury aggravated the lumbar region injury experienced by respondent in May 1985. However, we cannot conclude that because the May 1985 injury initiated the weakness and susceptibility to reinjury in this area of respondent’s back, it was impossible to divide the monetary recovery in the FELA case according to the FELA settlement entered into between respondent and the railroad.

We acknowledge that Dr. Schoedinger could not quantify the extent to which each FELA injury and the 1986 automobile accident had contributed to the resultant permanent disability from railroad work experienced by respondent following the February 1987 incident. However, Dr. Schoedinger also testified that the reason he could not make such an estimate was that he had not examined respondent following the earlier injuries. We note that respondent was able to return to railroad work in September 1985 following rehabilitation, after his May 1985 FELA injury. We also note that Dr. Goldenberg, who treated respondent following the initial FELA injury and whose deposition was taken two weeks prior to the February 20, 1987, FELA injury, rendered a favorable diagnosis at this deposition that respondent’s injury would eventually resolve itself without any residual effects in approximately 1 to lVz years. Moreover, Dr. Beuckman, respondent’s treating chiropractic physician, stated that when she began treating respondent after his original injury she felt it was probable that he would be able to return to work but that after the February 1987 injury she had doubts that he would ever be able to do so. In addition, both Dr. Schoedinger and Dr. Davis noted the presence of pain in the neck and upper limbs following the February 1987 injury, and Dr. Schoedinger opined therefore that these complaints could only be attributable to the second FELA incident.

The depositions also indicate that prior to the February 20, 1987, injury Mr. Waeckerle was responding well to conservative treatment by his chiropractor. When respondent was not able to obtain relief from pain with conservative treatment measures following the second FELA injury, respondent was referred to Dr. Schoedinger, who evaluated his condition in April 1987. Dr. Schoedinger diagnosed nerve root irritation on the left side at the L4 vertebral segment caused by a probable disc herniation at L4-5. At this time respondent had reported that his painful back symptoms had increased since the injury and were associated with sharp pain in his right lower limb and tingling sensations and radiating pain in his left upper limbs. Moreover, although respondent attempted to return to work for the railroad in a clerical position, he was forced to terminate his employment completely in October 1987 because the back pain and lower limb numbness had prevented him from being able to sit for any length of time. Dr. Schoedinger opined that his back injury was permanent and would require spinal fusion surgery when respondent could no longer tolerate the pain.

We note at this juncture that the allegation of two separate injuries to the same general portion of the anatomy, although it is difficult to establish the exact proportion of injury caused by each occurrence, entitles a plaintiff to an evaluation by a jury of his damages and the attribution of those damages caused by each defendant. (See Wheeler v. Roselawn Memory Gardens (1989), 188 Ill. App. 3d 193, 200-01, 543 N.E.2d 1328, 1333.) Therefore, if the amended FELA complaint had not been settled prior to jury verdict in Madison County cause number 85 — L—534, the jury could have been required to assess liability and damages for each count of the complaint. (See Yanan, 205 Ill. App. 3d at 101, 562 N.E.2d at 1246.) The evidence before the court in the instant case was unrefuted that the Alton & Southern Railroad had offered to settle count I of the FELA complaint with respondent in the gross amount of $25,000 and count II of the FELA complaint in the gross amount of $259,540. The FELA statements of settlement and distribution for each count of the complaint, exhibiting the contract between respondent and the railroad, were admitted into evidence at the August 7, 1989, hearing on respondent’s motion to enforce the judgment of dissolution. Attorney Carlson further opined at that hearing that the $25,000 offered in settlement of count I was more than a fair settlement of this cause of action based on his opinion of the value of the case and that if the case had gone to the jury, the jury could have found respondent 90% contributorily negligent. Respondent further testified that he had not asked attorney Carlson to manipulate the settlement amounts of the two FELA claims. Conspicuously absent in the record of either the August 7, 1989, hearing or the February 28, 1990, rehearing was any testimony or evidence impeaching either Carlson’s or respondent’s testimony. If such impeaching evidence existed, petitioner could have conceivably subpoenaed witnesses from the Alton & Southern Railroad to testify that they were asked to manipulate the settlement such that count I was nominally settled for only $25,000. Petitioner did not, in our opinion, refute the inference that the actual value of respondent’s claim in count I of his complaint was the settlement amount offered by the railroad. We find, therefore, that respondent’s damages for the two FELA injuries were capable of apportionment and were so apportioned according to the FELA settlement statements. We hold that there was no error in the determination of the court in the instant case that petitioner was entitled to 22% of the net proceeds of count I, the claim pending at the time the parties’ judgment of dissolution of marriage was entered.

Accordingly, the January 19, 1990, and March 30, 1990, orders of the circuit court of St. Clair County are affirmed.

Affirmed.

RARICK, P.J., and CHAPMAN, J., concur.


author: JUSTICE HARRISON

text:
    JOYCE RAGAN, d/b/a Ragan’s Yamaha Sales, Plaintiff-Appellee and Cross-Appellant, v. HAROLD WILLIAMS, Defendant-Appellant and Cross-Appellee.
    Fifth District
    No. 5—90—0824
    Opinion filed October 8, 1991.

      Robert W. Wilson and Alexander M. Wilson, both of Evans & Dixon, of Edwardsville, for appellant.
    John L. Chullen, of John L. Chullen Law Offices, of Benton, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Defendant, Harold Williams, drove his automobile into a parked car owned by plaintiff, Joyce Ragan, d/b/a Ragan’s Yamaha Sales. Plaintiff sued him for negligence and won a jury verdict of $3,000. Defendant then moved to obtain a credit against that verdict in an amount equal to sums which his insurance company had allegedly paid on plaintiff’s behalf for the repair of her car and for the rental car charge she had incurred while her car was being repaired. Plaintiff, in turn, filed a motion asking the court to order an additur of $714 or, in the alternative, a new trial. Following a hearing, the circuit court entered judgment on the jury’s verdict. Both the credit sought by defendant and the additur requested by plaintiff were denied. Defendant now appeals. Plaintiff cross-appeals. We affirm.

In his effort to obtain credit against the jury’s verdict, defendant submitted to the court two exhibits consisting of photocopies of checks issued by General Accident Insurance. The largest check, for $2,680.61, was made payable to Ike Nissan in Carbondale, Illinois. The check indicated that it was for property damage which occurred on September 7, 1987, which was the date of the accident giving rise to this litigation. The claimant’s name was given as Mike Ragan, not Joyce Ragan, and the insured was identified as Edwin Williams, not Harold Williams. The second check likewise indicated that it was for property damage for a loss occurring on September 7, 1987, that the insured’s name was Edwin Williams, and that the claimant’s name was Mike Ragan. It was made payable to W-G Motors, Inc., and was for the sum of $858. Along with these two exhibits, defendant submitted an affidavit from John J. Lynch. Lynch’s affidavit stated simply:

“1. The law firm of Evans & Dixon is counsel of record for defendant.
2. General Accident Insurance Company paid $2680 to Ike’s Nissan for repair work done to the 1983 Buick Riveria [s-ic] owned by Mrs. Ragan after the accident of September 7, 1987. Said repair work was paid by the insurance company on October 16, 1987.
3. Likewise, General Accident Insurance Company has paid bills of $858 in car rental charges incurred by Mrs. Ragan after her accident of September 7, 1987. I have nothing further to add.”

At trial there was considerable confusion as to how exactly defendant’s claim for credit should be handled. Defendant sought to have his exhibits and the associated affidavit placed into evidence during the course of the trial but kept from the jury. The circuit court felt that the better course was to reserve the question of a possible credit until after a jury verdict was returned. Plaintiff did not object at trial to this procedure, and we know of no authority which suggests that it was improper. To the contrary, the courts have held that where a prevailing plaintiff has allegedly received advance payments from the defendant’s insurer prior to judgment, the proper method for obtaining credit for those advance payments is through a post-judgment motion. Klier v. Siegel (1990), 200 Ill. App. 3d 121, 128-29, 558 N.E.2d 583, 588-89.

The sole reason the circuit court denied defendant the credit he claimed here was that his evidence was inadequate. We agree. The photocopies of the checks are pure hearsay, and no evidence was adduced which would place them within any of the exceptions to the hearsay rule. In any case, they scarcely prove that payments were made to compensate plaintiff for her loss as defendant contends. They do not even mention any of the parties to this litigation.

Defendant evidently hoped to overcome this evidentiary gap through the affidavit of Lynch, but that too is pure hearsay. Moreover, although it states that certain sums were paid by General Accident Insurance Company to compensate plaintiff for her loss, we are never told how the affiant knows this. He does not purport to be a representative of the insurance company. His name does not appear on the checks. He does not even identify himself as a member of the law firm representing defendant. Lynch’s affidavit therefore does not provide an adequate foundation for consideration of the checks. Accordingly, the circuit court was correct in refusing to allow defendant a credit for any prejudgment payments made to plaintiff based on this evidence.

We also believe that the circuit court correctly denied plaintiff’s post-trial motion for additur. Additur is a practice which should be sparingly indulged and should never be adopted except in clear cases. It is unavailable where unliquidated tort damages are at issue. (Hladish v. Whitman (1989), 192 Ill. App. 3d 561, 565, 549 N.E.2d 5, 8.) This is such a case. The actual damage sustained by plaintiff was far from clear. She did not proffer itemized bills or receipts but merely put into evidence various estimates and approximations as to the damage proximately caused by the accident and the cost to repair it. These were matters for the jury to resolve, and there is nothing before us to show that its ultimate verdict was the product of some “evident miscalculation or mistake.” 192 Ill. App. 3d at 566, 549 N.E.2d at 8.

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

Affirmed.

RARICK, P.J., and HOWERTON, J., concur.


author: JUSTICE HOWERTON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY V. JOHNSON, Defendant-Appellant.
    Fifth District
    No. 5—90—0439
    Opinion filed October 10, 1991.

      Daniel M. Kirwan and Lawrence J. O’Neill, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Darrell Williamson, State’s Attorney, of Chester (Kenneth R. Boyle, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

Defendant was convicted of unlawful possession of a weapon in a penal institution (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1.1(b)) and sentenced to 12 years in prison. He appeals on three grounds: (1) the circuit court erred by not requiring a defense witness who had invoked his fifth amendment right against self-incrimination to testify; (2) the circuit court erred by admitting hearsay testimony; and (3) the circuit court abused its discretion in sentencing defendant to 12 years in prison. We affirm.

At trial, corrections officers testified that defendant broke from a line of prisoners who were about to be searched and that before he could be seized, he threw an object over the prison fence. The object was a homemade knife. Defendant’s theory at trial was mistaken identity. He called his cellmate to the stand.

His cellmate testified that defendant was confined to his cell when the incident occurred, but when counsel asked defendant’s cellmate if corrections officers had stopped him in the yard and accused him of throwing the knife over the fence, he refused to answer. Counsel asked the court to instruct the witness to answer, but the court did not; instead, it advised the witness of his right to refuse. Defendant’s counsel asked again, “Knowing your rights, will you answer the question?” The witness refused. In response to further questioning, the witness admitted to being in the line that was about to be searched and admitted to leaving the line, but when asked if he was approached by two officers in the yard, he again refused to answer. Counsel asked the court to instruct the witness to answer. The court so instructed, and the witness testified that he “saw” the officers. Then defendant’s counsel asked, “And do you remember being accused of having possession of a weapon?” The witness refused to answer. Counsel then stated he had no further questions for the witness. On appeal, defendant alleges that it was error not to instruct the witness to answer. We disagree.

The fifth amendment guarantees that “[n]o person *** shall be compelled in any criminal case to be a witness against himself” (U.S. Const., amend. V), and that guarantee applies not only to answers that themselves would support a conviction, but any answer that would furnish a link in the chain of evidence needed for prosecution. (Hoffman v. United States (1951), 341 U.S. 479, 95 L. Ed. 1118, 71 S. Ct. 814.) Here, had the witness answered the question, his answer may very well have served the dual purpose of securing his cellmate’s acquittal while ensuring his own indictment. Therefore, the circuit court was correct in refusing to direct the witness to answer.

Defendant maintains secondly that the circuit court erred by permitting hearsay testimony into evidence. In rebuttal, the State called an officer who testified that if a prisoner had been confined to his cell, his name would appear on the temporary confinement log for that day. He testified that defendant’s name did not appear on the log the day of the incident. Defendant claims that this testimony was hearsay and should not have been admitted into evidence. Defendant, however, did not object to this testimony; therefore, the issue is waived. E & E Hauling, Inc. v. Pollution Control Board (1985), 107 Ill. 2d 33, 481 N.E.2d 664.

Defendant argues that the issue is not waived because counsel objected to the officer’s testimony during redirect and that that objection should be viewed broadly to encompass the hearsay admitted during direct examination. We disagree.

The record shows that defendant did not make a hearsay objection; rather, he objected on grounds that it called for a conclusion. It is well settled that to preserve an issue for appeal, counsel must state specific grounds for objection and that other grounds not stated are waived. (Akers v. Atchison, Topeka & Santa Fe Ry. Co. (1989), 187 Ill. App. 3d 950, 543 N.E.2d 939.) Although defendant’s objection was specific, it was not a hearsay objection. The issue is, therefore, waived.

Defendant claims in the alternative that failure to make a hearsay objection amounted to ineffective assistance of counsel. Ineffective assistance occurs when counsel’s performance is deficient and “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984), 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.) To determine if counsel’s performance was deficient, we first address whether the testimony was hearsay. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. (People v. Lawler (1991), 142 Ill. 2d 548, 568 N.E.2d 895.) The State’s witness testified that if a prisoner was temporarily confined, his name would appear on the temporary confinement log for that day and on the day of the incident, defendant’s name did not appear on the log. Testimony that defendant’s name was not on the confinement log was hearsay because it was an out-of-court statement offered to prove the truth of the matter asserted, namely, that defendant was not in his cell. (See generally People v. Daniel (1989), 191 Ill. App. 3d 837, 548 N.E.2d 354.) We pause to note, however, that had the State laid the proper foundation, i.e., asked the witness if the log was made in the regular course of business and if it was the regular course of business to make such a log, the log or testimony about the log may have been admitted under the business record exception to the hearsay rule. (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 5.) Nevertheless, no foundation was laid, and counsel’s failure to recognize the testimony as hearsay and his failure to object to its admission was deficient. Despite defense counsel’s performance, however, we believe the outcome of the trial would have been no different. Five officers testified that they saw defendant throw an object over the fence. Though some of the officers only witnessed defendant’s conduct for part of the time, one officer watched his movement the entire time, and his story is corroborated by the others in every detail. For this reason, we believe counsel’s performance would not have changed the outcome of the case.

Lastly, defendant claims that his 12-year prison sentence was excessive. The circuit court is given broad discretion in imposing a sentence. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) The court reasoned that the 12-year prison term was warranted because defendant had been caught with a weapon once before and was serving a sentence for armed violence and conspiracy to commit murder. Noting these factors and the problem of violence in prison, the circuit court believed a 12-year prison sentence was necessary to deter defendant and others from similar offenses. We find no abuse of discretion. The circuit court is affirmed.

Affirmed.

HARRISON and CHAPMAN, JJ., concur.


author: JUSTICE STOUDER

text:
    ETHEL HUDGENS, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Hoeffken Brothers, Inc., Appellant).
    Fifth District (Industrial Commission Division)
    No. 5—89—0744WC
    Opinion filed August 15, 1991.
    Rehearing denied October 29, 1991.

      William L. Rogers, of Keefe & DePauli, P.C., of Fairview Heights, and Lynn E. Newmark, of Hayes, Newmark & Steigerwald, of St. Louis, Missouri, for appellant.
    George R. Ripplinger, Jr., of Ripplinger, Dixon & Johnston, of Belleville, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The petitioner, Ethel Hudgens, filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.). She sought to recover damages for alleged work-related injuries arising from her employment with the respondent, Hoeffken Brothers, Inc. The arbitrator found in favor of the respondent. On review, the Industrial Commission (Commission) found that the petitioner had failed to file a written summary or brief as required by Commission rules. It therefore held that it had no reason to change the arbitrator’s decision and as such affirmed it without reviewing the merits of the case. The circuit court reversed the Commission’s decision and remanded the case, finding that the Commission could not summarily affirm the arbitrator without ruling on the merits.

On remand, the Commission affirmed the arbitrator after reviewing the merits of the case. The circuit court subsequently reversed the Commission. It found that the petitioner had sustained injuries arising out of and in the course of her employment and that a causal relationship existed between the injuries and the petitioner’s condition of ill-being. It therefore awarded the petitioner temporary total disability benefits and found that she was totally and permanently disabled by reason of her psychological injury. The respondent appeals.

This case involves allegations of both physical and psychological injuries arising from the same incidents. The record shows that on August 2 and 5 of 1982, the petitioner was working as a truck driver for the respondent. She testified that on August 2 a load of dirt was put in her truck. The load, however, was too heavy and she could not move the truck. Following normal procedure, another truck arrived to push her truck and get it going. She stated that when the second truck hit her truck she was thrown forward, causing her knees to hit the bottom of the steering column. This happened about six times before her truck was finally freed. She did not go to work on the third or fourth, because her back, shoulder, and legs were stiff.

On August 5, her truck became stuck in a field where she was dumping dirt. Again, another truck came to push her out and she was again thrown forward. She did not recall hitting anything with her body, but after that her back and shoulders began hurting. She reported these injuries to the respondent on August 8, 1982. Neither party produced any witnesses to confirm or refute the petitioner’s claim that these incidents occurred.

The petitioner also testified that since the incidents her back had continually hurt and she could not stand or sit in one position for too long. Furthermore, her knees hurt when she went up and down stairs or tried to walk too far.

The petitioner testified that she saw the following doctors for treatment of her injuries. She first saw Dr. Frick, a chiropractor, but stopped seeing him because she felt he was not helping her. She then saw chiropractors Roy B. Conkling and Arthur L. McAuliffe, whose opinions are set out below. On Dr. Conkling’s advice, she saw Dr. Climaco, a neurosurgeon, who recommended that she see a psychiatrist. She then saw Dr. Rodriguez, an orthopedic surgeon. However, she quit seeing him because she felt he was not helping her.

Thereafter, she saw Dr. Miller, an orthopedic surgeon, who ordered an arthrogram. This was performed at Oliver C. Anderson Hospital on February 18, 1983. Dr. Miller refused to treat her further because she refused to take Zomac, a medication he prescribed. She then saw Dr. Fritsch, an orthopedic surgeon, who gave her an injection in her knee and ordered her to wear a knee brace. He refused to treat her further because she could not pay for his services.

She also saw orthopedic surgeons Shu-Fang Chen and Sherman J. Wayne. In addition, she saw psychiatrists Edwin Wolfgram and Leonard Wiedershine. Each of these doctor’s opinions is set forth below.

The petitioner also testified regarding incidents of sexual harassment. On August 2, when she pulled her truck under the loader to fill it, the man operating the loader told her he wanted to go to bed with her. She waved him away. On August 5, she was informed by another employee that Bill Kiser, the respondent’s mechanic, wanted to “get into her pants.” She also stated that she had been sexually harassed by fellow employees since April of 1982. As a result, she contacted Robert Miller, the respondent’s vice-president in charge of labor relations, on August 2,1982.

Miller testified that he met with the petitioner on August 4, 1982. She told him that she was forced to drive unsafe equipment and that she was forced to work under unsafe conditions. She also told him that on August 2, 1982, the loader operator had stated that he wanted to go to bed with her. She did not complain about any other incidents of sexual harassment.

The medical records regarding the physical injuries show that the petitioner sought the care of chiropractor Roy B. Conkling on August 23, 1982. In his deposition, Dr. Conkling testified that the petitioner told him she was injured at work when her truck was struck by another truck on two separate dates. She complained that she was suffering from pain in her neck, back, and knees. In Conkling’s opinion, the petitioner’s injuries were caused by the two incidents. He said the incidents aggravated a preexisting condition and that the petitioner was totally disabled from August 5, 1982, to December 14, 1982, the date of the deposition.

Dr. Conkling sent the petitioner to chiropractor Arthur L. McAuliffe for consultation. His report was consistent with Dr. Conk-ling’s report that the petitioner suffered a traumatic knee sprain.

The petitioner began seeing her current orthopedic surgeon, Dr. Chen, on March 17, 1983. In his deposition, Dr. Chen stated that the petitioner told him she was injured when another truck slammed into a truck she was driving. This occurred on both August 2 and August 5 of 1982.

. He noted that she had minor swelling in her left knee and crepitation in both knees. In addition, the prior arthrogram showed the possibility of chondromalacia patella in both knees. He performed arthroscopic surgery on her left knee and recommended surgery for the right knee.

In his opinion, the petitioner’s back and knee problems were the result of the trauma she suffered on August 2 and 5 of 1982. He also stated that she had been disabled and unable to perform her job since August 5, 1982.

Dr. Wayne testified on behalf of the respondent. He stated that he examined the petitioner on September 1, 1982, and again on December 7, 1984. Regarding the history the petitioner gave him on her first "visit, he stated that she told him she had been injured at work. His notes regarding her history also showed that the witnesses at the scene discounted the idea that the impact was great enough to cause any significant jarring of the petitioner. He testified that his examination revealed no injury to her knees, back, or neck and as such it was his opinion that she needed no medical treatment.

Following the December 7, 1984, examination, he found some signs of bilateral patellar malalignment and chondromalacia. While he admitted that these conditions could have been caused by trauma, it was his opinion that they were preexisting problems not caused by the incidents in question.

The medical evidence regarding the petitioner’s psychological problems shows that she sought the care of psychiatrist Edwin Wolf-gram. Although the evidence regarding the date the petitioner first consulted Dr. Wolfgram is conflicting, it appears that her first appointment was on September 10, 1982. Dr. Wolfgram testified that the petitioner told him about the incidents occurring on August 2 and 5 of 1982. She also told him that she was being harassed at work, that she was given defective equipment, and that she was subjected to repeated requests for sexual favors. In addition, she informed him that she had been married six times and had four children.

Dr. Wolfgram stated that the injuries sustained in August of 1982 aggravated her already depressed state and worsened her condition to the extent that she was having severe depressive mental symptoms. In his opinion, the petitioner was suffering from major depression and single episode psychotic and psychogenic disorder, both of which were caused by the injuries she sustained while employed with the respondent in August of 1982. He also stated that as a result of her mental condition she was unable to perform her job and that her psychological problems were permanent.

The petitioner was also examined by psychiatrist Leonard Wiedershine at the request of the respondent. Dr. Wiedershine testified that he examined the petitioner on December 10, 1982, and at that time she informed him about the injuries occurring in August of 1982. She also told him that she had been sexually harassed at work.

In his opinion, the petitioner would not lie and was likely to deny any major psychological difficulties. In addition, she would downplay her physical problems. He stated that she was depressed and had pain in her lower back and knees on the day of his examination. He also stated that the sexual harassment she received while working for the respondent was causing her psychological problems.

Dr. Wiedershine testified that the petitioner was mildly depressed but her condition was not permanent. It would, however, worsen if she returned to work for the respondent. He stated that the incidents that occurred in August of 1982 were connected with her psychological problems. However, he also attributed some of her problems to unstable family relationships.

He found that the petitioner’s level of depression could change from day to day and that he would defer to her treating psychiatrist as to her condition on other days. He also testified that often individuals with numerous problems in their lives are able to cope until some catalytic event pushes them over the line. This is true even though the event may seem minor to someone else.

From the foregoing, the arbitrator found that the petitioner’s present condition of ill-being was not causally connected to the incidents occurring in August of 1982.

The Industrial Commission found that the petitioner had failed to file a written summary or brief as required by Commission rules. It therefore held that it had no reason to change the arbitrator’s decision and as such affirmed the arbitrator’s decision without reviewing the merits of the case. The circuit court reversed the Commission and remanded the case, finding that the Commission could not summarily affirm the arbitrator without ruling on the merits.

On remand, the Commission affirmed the arbitrator after reviewing the merits of the case. The circuit court reversed and remanded. It found that the petitioner had sustained injuries arising out of and in the course of her employment and that a causal relationship existed between the injuries and the petitioner’s condition of ill-being. It therefore awarded her temporary total disability benefits and found that she was totally and permanently disabled by reason of her psychiatric injury.

The respondent first argues on appeal that the circuit court was without jurisdiction to hear the case because the petitioner failed to meet the statutory requirements of section 19 of the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.19). Specifically, it contends that the petitioner failed to file a receipt or affidavit showing that she paid the necessary fees to the Commission within the statutory 20-day limit.

The record shows that the date at issue is August 1, 1985, and that the statute cited by the respondent did not take effect until September 25,1985. The applicable statute provides in relevant part:

“[N]o request for a summons may be filed and no summons shall issue unless the party seeking to review the decision of the Commission shall exhibit to the clerk of the Circuit Court a receipt showing payment of the sums so determined to the Secretary or Assistant Secretary of the Commission.” Ill. Rev. Stat. 1983, ch. 48, par. 138.19(f)(1).

The requirements of this section are met when payment is in fact made before the summons is issued; the clerk, before issuing the summons, is shown the receipt showing that the payment has been made or is otherwise satisfied that it has been paid; and the record of the circuit court reflects how this was accomplished. Arrington v. Industrial Comm’n (1983), 96 Ill. 2d 505, 451 N.E.2d 866.

Here, the record shows that the Commission issued a receipt on July 30, 1985, showing that it received a check from the petitioner. Further, according to the petitioner’s attorney, on August 1, 1985, he filed a “Request for Summons” after he physically exhibited the receipt to the clerk.

The respondent argues, however, that the receipt could not have been shown to the clerk on August 1, since it was not received by the petitioner until August 2. As evidence of this, the respondent points to a stamp on the attorney’s copy of the receipt which shows that it was received in the petitioner’s attorney’s office on August 2.

However, the petitioner’s attorney explained this discrepancy in an affidavit in which he stated that he received the receipt from the Commission on August 1 and thereafter proceeded directly to the clerk’s office to show him the receipt. He did not place the receipt in the petitioner’s file until August 2, 1985. As such, we find that the record established that the petitioner complied with the requirements of the Act.

The respondent next argues that the circuit court erred in finding that the petitioner’s condition of ill-being was causally connected to the injuries she sustained in August of 1982.

For an injury to arise out of one’s employment, the injury must have an origin in some risk connected with or incidental to the employment so that there is a causal connection between the employment and the injury. (Fire King Oil Co. v. Industrial Comm’n (1976), 62 Ill. 2d 293, 342 N.E.2d 1.) A claimant may be compensated for a work-related injury which results in a mental disorder that leads to disability. (Veritone Co. v. Industrial Comm’n (1980), 81 Ill. 2d 97, 405 N.E.2d 758.) The Commission is the judge of the credibility of the witnesses and the weight to be given their testimony. It is for the Commission to decide which of two conflicting medical opinions given in a case is to be accepted, and its decision will not be disturbed unless it is against the manifest weight of the evidence. Chicago Rotoprint v. Industrial Comm’n (1987), 157 Ill. App. 3d 996, 509 N.E.2d 1330.

Here, the Commission apparently found that the petitioner did suffer injuries which arose out of and in the course of her employment. However, it concluded that the injuries and her condition of ill-being were not connected. We find that the Commission’s decision was against the manifest weight of the evidence.

While the medical records regarding the cause of the physical injuries are conflicting, the records regarding the cause of her mental illness are not. Both Dr. Wolfgram and Dr. Wiedershine testified that the petitioner’s psychological problems were connected with the injuries she sustained in August of 1982.

Furthermore, with regard to the physical injuries, the testimony of Dr. Wayne is somewhat incredible given that he examined the petitioner 30 days after the incidents and found no evidence of any injuries or damage. Yet two years later when he again examined her, he found that her knees were damaged. In his opinion, though, this damage was not caused by the incidents occurring in August of 1982, but rather was the result of incidents occurring prior to that time.

Therefore, based on the medical records, we conclude that the Commission’s finding that the petitioner’s physical and mental conditions of ill-being were not causally connected to the injuries she sustained was against the manifest weight of the evidence.

The respondent’s final argument is that the circuit court erred in finding that the petitioner was permanently totally disabled due to her psychological problems. It contends that this issue was not litigated below since the cause before the arbitrator was a section 19(b) proceeding. As such, the parties stipulated that the only questions before the arbitrator were causal connection and TTD.

Section 19(b) provides:

“The Arbitrator or committee of arbitration may find that the disabling condition is temporary and has not yet reached a permanent condition and may order the payment of compensation up to the date of the hearing, which award shall be reviewable and enforceable in the same manner as other awards, and in no instance be a bar to a further hearing and determination of a further amount of temporary total compensation or of compensation for permanent disability, but shall be conclusive as to all other questions except the nature and extent of said disability.” (Ill. Rev. Stat. 1983, ch. 48, par. 138.19(b).)

In a section 19(b) proceeding, the arbitrator is limited to the issue of temporary disability. Thomas v. Industrial Comm’n (1980), 78 Ill. 2d 327, 399 N.E.2d 1322.

Here, the petitioner filed a petition for immediate hearing under section 19(b). However, at the proceeding before the arbitrator, both parties introduced evidence regarding the extent of the petitioner’s disability. The petitioner argues that since the issue was fully litigated below, the circuit court had the authority to find her to be temporarily and permanently totally disabled even though neither the arbitrator’s nor the Commission’s decisions addressed the issue of permanent disability.

However, we find that as stated in Thomas, a section 19(b) proceeding is limited to the issue of temporary disability. Further, we note that the Commission did not make a finding on either temporary or permanent disability. As such, even if it could be construed that in this case the proceeding became a hearing on temporary and permanent disability, allowing the circuit court’s decision to stand would allow it to become the trier of fact rather than a court of review. We affirm the circuit court’s reversal on the issue of causality and hold the Commission’s decision on this issue was against the manifest weight of the evidence. We also hold the circuit court’s judgment granting temporary and permanent disability should be reversed, and the cause remanded to the Commission for determination of the nature and extent of temporary disability.

The judgment of the circuit court of St. Clair County is affirmed in part, vacated in part, and remanded for proceedings consistent with this decision.

Affirmed in part, vacated in part, and remanded.

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


author: JUSTICE GOLDENHERSH

text:
      In re ESTATE OF ACSA JOHNSON, a Disabled Adult (Mary E. Jones et al., Petitioners-Appellants and Cross-Appellees, v. Acsa Johnson, Respondent-Appellee and Cross-Appellant).
    Fifth District
    No. 5—89—0724
    Opinion filed October 1, 1991.
    Stephanie Robbins, of Edwardsville, for appellants.
    Barbara L. Sherer, of Lucco, Brown & Mudge Law Offices, of Edwards-ville, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Petitioners, Mary E. Jones and Patricia Penelton, appeal from an order of the circuit court of Madison County removing Patricia Penelton as limited guardian of respondent, Acsa Johnson, and appointing instead the office of the State Guardian. Petitioners also appeal from an order of the circuit court limiting recovery of attorney fees from respondent’s estate to $186.75. Additionally, respondent has cross-appealed the order of the circuit court ordering respondent’s estate to pay court costs, petitioners’ attorney fees in the amount of $186.75, and the guardian ad litem fees. The issues we are asked to address are: (1) whether the trial court erred in appointing the office of the State Guardian, and (2) whether the trial court erred in ordering respondent’s estate to pay court costs, attorney fees in the amount of $186.75, and guardian ad litem fees. We affirm as modified.

Respondent, the subject of the petition for guardianship, was born in 1902 and has spent most of his adult life in Madison County. He was married, but has been widowed for approximately 20 years. No children were born of the marriage. Petitioner, Mary Jones, is respondent’s sister. The other petitioner, Patricia Penelton, who sought to be named respondent’s guardian, is respondent’s niece and a daughter of Mary Jones. Respondent’s education is apparently limited to early grade school. He worked as a laborer at Laclede Steel for a number of years and currently receives a pension and continued medical coverage from the company. Over his lifetime, respondent has accumulated an estate valued at approximately $250,000, consisting of cash deposits and two parcels of real estate. Respondent has lived a miserly existence in order to acquire such an estate. He taught his nieces and nephews to call him “Uncle Pinch Penny.” Respondent takes great pride in the value of his estate.

Late in 1986, respondent’s health began to fail until he was near death. He was finally hospitalized for congestive heart failure in December 1986. Respondent’s health improved somewhat, and he was able to leave the hospital in January 1987. Respondent still required 24-hour-a-day care, and his family decided that he should be cared for in his own home, as he had always expressed a desire not to be placed in a nursing home. Geraldine Mitchell Freeman, Patricia Penelton’s sister and a registered nurse, took a leave of absence from her job in Chicago to come down to Edwardsville to care for respondent. Her two children also came with her to assist in the care. Freeman remained on leave of absence from her job from January 5, 1987, through April 1, 1987. Freeman and her children received compensation for their care of respondent out of respondent’s funds: Freeman received $57,000 in 1987 and $12,850 in 1988, her daughter received $24,100 in 1987 and $9,000 in 1988, and her son received $6,600 for 20 days of service in 1987. The expenditures were made by Mary Jones pursuant to a power of attorney she received on January 13, 1987. In addition to expenditures for respondent’s health care, several thousands of dollars were spent refurbishing respondent’s home in 1987, because it had fallen into a state of unhealthy disrepair. Apparently, this unhealthy situation had existed for several years prior to respondent’s hospitalization. A total of $147,000 was expended through Mary Jones’ power of attorney. While respondent had medical coverage through Laclede Steel, petitioners made almost no effort to have respondent’s medical bills reimbursed by his insurance.

Respondent learned in July 1988 how much had been spent by petitioners. Respondent believes that petitioners and Freeman “took his money.” He no longer wants petitioners or Freeman to take care of him or his affairs. Instead, respondent would like to continue to be cared for by his niece and nephew, John and Judy Nelson. The Nelsons began living with respondent in the summer of 1988. There was testimony that the Nelsons moved into respondent’s house and changed the locks and have prohibited petitioners, Freeman, and her children from seeing respondent. In response to such action, petitioners filed their petition requesting to be named guardians of respondent on July 14, 1988. Petitioners’ main complaint is that the Nelsons are interfering with their relationship with respondent. Because of the tension within the family, a guardian ad litem was appointed by the court. After consultation with physicians who evaluated respondent, and after meeting with both the Nelsons and petitioners, the guardian ad litem recommended that it would not be appropriate either to adjudicate respondent as mentally unable to take care of his affairs or to appoint petitioners as guardians. If the court determined that a guardian was necessary, the guardian ad litem recommended that a person independent of the family be appointed. The guardian ad litem did recommend a limited guardianship to assist respondent in financial matters.

On March 30 and 31, 1989, the petition for guardianship was heard. At this hearing no effort was made to have Mary Jones appointed guardian because of her advanced age. An order was entered on April 3, 1989, and amended on April 19, 1989. The order, among other things, found that the Nelsons may have “used respondent’s preoccupation with money to foster in him an antipathy toward, and alienation from, his immediate family and those family members who have been closest to him throughout his lifetime.” It also appointed Patricia Penelton as guardian of the person of respondent, but reserved the issue of who should be appointed guardian of the estate, and ordered a complete psychological evaluation of respondent. The matter was continued for further hearing regarding the appointment of a guardian of the estate and the results of the evaluation. Respondent then filed a petition to remove Patricia Penelton as guardian and/ or substitute the Nelsons as coguardians.

The court entered various orders after a hearing on September 11, 1989. The court ordered attorney fees of $186.75 and costs of $193.86 to be paid out of respondent’s estate to petitioners. The additional $2,334.71 requested by petitioners’ attorney was denied. Patricia Penelton was removed as limited guardian. The Bank of Edwardsville was appointed limited guardian of respondent’s estate for the purpose of ensuring that respondent’s money is directed in the manner which respondent desires. The trial court specifically found that respondent “is capable of making his own decisions concerning the disposition of his money and property.” The office of the State Guardian was appointed to oversee that respondent remained properly fed, clothed, and sheltered.

The first issue we are asked to address is whether the trial court erred in appointing the office of the State Guardian. Petitioners contend that the office of the State Guardian should not have been appointed in this case because another suitable person, namely, Patricia Penelton, was available and was willing to accept the guardianship appointment. Petitioners argue that the office of the State Guardian can only be appointed if a family member is not available to assume the duties. Respondent replies that the trial court was within the bounds of reasonable discretion in refusing to appoint Patricia Penelton as respondent’s guardian and instead appointing the State Guardian as the limited guardian over respondent’s person. We agree.

A limited guardian may be appointed over either respondent’s person or estate, or both, if the respondent is adjudged to be disabled and to lack some, but not all, capacity. (Ill. Rev. Stat. 1987, ch. IIOV2, par. 11a — 10(c).) Selection of a limited guardian is within the trial court’s discretion, which must give due consideration to the preference of the disabled person. (Ill. Rev. Stat. 1987, ch. llO1^, par. 11a— 12(d).) The primary consideration in the selection of a guardian is the best interest and well-being of the disabled person. (In re Estate of Bennett (1984), 122 Ill. App. 3d 756, 762, 461 N.E.2d 667, 671.) In selecting a guardian, the court may consider such factors as past actions and conduct of proposed guardians, business experience, ages, and family situations. (In re Estate of Robertson (1986), 144 Ill. App. 3d 701, 712, 494 N.E.2d 562, 570.) Our General Assembly has provided that “[t]he State Guardian shall not be appointed if another suitable person is available and willing to accept the guardianship appointment.” Ill. Rev. Stat. 1987, ch. 911/2, par. 731.

In the instant case, there was ample evidence to support the trial court’s decision to appoint the State Guardian. First, evidence was presented to indicate a feud between two factions of respondent’s family concerning the care of respondent. The court was correct to take the existing rift between respondent’s family into consideration. Second, the independent guardian ad litem concluded that petitioners would not be appropriate guardians in this situation and that if a guardian was appointed, a person independent of the family should be appointed. Third, respondent himself voiced his resentment of petitioners and his strong preference that they not be appointed his guardian. Based upon these circumstances, we cannot say that the trial court abused its discretion in finding petitioners unsuitable to be respondent’s guardian and instead appointing the office of the State Guardian. We find no conflict between the appointment of the State Guardian and section 31 of the Guardianship and Advocacy Act (Ill. Rev. Stat. 1987, ch. 911/2, par. 731).

The other issue we are asked to consider is whether the trial court erred in ordering respondent’s estate to pay court costs, attorney fees in the amount of $186.75, and guardian ad litem fees. Petitioners contend they were entitled to recover the full amount of $2,521.46 asked for in the petition. This amount was based upon a rate of $75 per hour for 33.62 hours of work. Petitioners contend that the award of $186.75 is unreasonable and arbitrary. On the other hand, respondent has cross-appealed this issue, arguing that petitioners were entitled to recover nothing.

Section 27 — 2 of the Probate Act of 1975 provides that “[t]he attorney for a representative is entitled to reasonable compensation for his services.” (Ill. Rev. Stat. 1987, ch. lHP/a, par. 27 — 2.) The definition section of the Probate Act states that a “ ‘Representative’ includes executor, administrator, administrator to collect, guardian and temporary guardian.” (Ill. Rev. Stat. 1987, ch. llO1^, par. 1 — 2.15.) Generally, an attorney for a person seeking a conservatorship is entitled to attorney fees whether the petition is successful or not. In re Estate of Roselli (1979), 70 Ill. App. 3d 116, 123, 388 N.E.2d 87, 92, citing 41 Am. Jur. 2d Incompetent Person §102 (1968).

In the instant case, Patricia Penelton did hold a conservator-ship position, as she was appointed limited guardian on August 2, 1989. After this, her attorney filed a verified petition seeking attorney fees. At no time did respondent object to the verified petition. Ultimately, Patricia Penelton was removed as limited guardian and the State Guardian took over those duties. However, petitioners were at least somewhat successful in that the trial court determined respondent did need some assistance in managing his affairs and, therefore, appointed the Bank of Edwardsville as guardian of respondent’s estate and also appointed the State Guardian as limited guardian over respondent’s person. For the purpose of collecting attorney fees, petitioners can be considered “representatives” contrary to respondent’s contention that they cannot. We find that the petition for attorney fees should have been allowed in full.

While the trial court has broad discretion in determining the “reasonable compensation” to be allowed an attorney, its award will be altered where the determination is an abuse of discretion. (In re Estate of Enos (1979), 69 Ill. App. 3d 129, 131-32, 386 N.E.2d 1147, 1149.) In the instant case, no one has ever argued that the amount sought for petitioners’ attorney fees was unreasonable. In light of the circumstances surrounding this case, we believe that the sum of $2,521.46 is reasonable and that the fees allowed by the trial court were inadequate. We can discern no reason for an award of $186.75, and, therefore, we find that the trial court should have allowed the full amount requested. Applying this same reasoning, we find that the trial court did not abuse its discretion either in ordering $193.86 to be paid out of the estate of respondent to the attorney for petitioners to cover costs or in ordering the guardian ad litem fees to be paid out of respondent’s estate.

Finally, respondent contends that to allow petitioners to recover fees and costs in the instant case is wrong as a matter of policy because it rewards family members who were motivated by greed rather than by respondent’s well-being. However, we cannot say from the record that the petition was brought in bad faith. Petitioners had been on good terms with respondent for a number of years and had helped to nurse him back to good health from what seemed to be a certain death. While there is an argument that the petition was brought in bad faith, there is just as strong an argument that in actuality petitioners delayed too long in filing this petition, which allowed respondent the opportunity to be manipulated by the Nelsons. The trial court, which is in a better position to judge these matters, specifically found that the Nelsons may have “used respondent’s preoccupation with money to foster in him an antipathy toward, and alienation from, his immediate family and those family members who have been closest to him throughout his lifetime.”

For the foregoing reasons and pursuant to Supreme Court Rule 366(a)(5) (134 Ill. 2d R. 366(a)(5)), we hereby modify in part the order of the circuit court of Madison County by increasing the award of attorney fees to $2,521.46 and entering judgment thereon; the judgment is otherwise affirmed.

Affirmed as modified; judgment entered.

LEWIS and CHAPMAN, JJ., concur.