author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ADOLFO COSS, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 91—4027
    Opinion filed May 3, 1993.
    Irwin L. Franzin, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James Fitzgerald, and Katherine S.W. Schweit, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant Adolfo Coss was found guilty of two counts of possession of a controlled substance with intent to deliver. Defendant was sentenced to nine years’ imprisonment. Defendant now appeals the denial of his pretrial motion, filed pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, to quash the search warrants and suppress evidence.

The record on appeal discloses the following facts. On May 8, 1989, Chicago police officer Victor Guerrieri executed a complaint for a search warrant of Monticello Pizza. Officer Guerrieri wanted to search the pizzeria-and defendant for cocaine, drug-related paraphernalia, United States currency that might be the profits of drug transactions and items that might show defendant’s ownership and control of the pizzeria. Officer Guerrieri stated that probable cause for the search warrant was based on a conversation with a confidential and reliable police informant whom Officer Guerrieri had known for over six months and who had provided Officer Guerrieri with accurate and reliable information on three previous occasions. Each of these occasions resulted in an arrest for a narcotics violation and in recovery of substances which later tested positive as cocaine.

According to the complaint, on May 8, 1989, the informant purchased a white folded paper snow-seal packet containing cocaine inside the Monticello Pizza pizzeria. The informant indicated that Adolfo Correa, also known as Adolfo Coss, claimed to own the pizzeria. Coss’ physical description was given. The informant indicated that Coss took him into a rear storage area next to the kitchen, where there were about 45 white folded paper snow-seal packets inside a brown glass bottle. According to the informant, Coss wanted $45 for one-half gram of cocaine and he paid this sum in return for one of the packets. Coss then replaced the brown glass bottle behind some storage boxes. The informant left the premises, snorted the contents of the packet and experienced the same sensations that he had in the past after snorting cocaine. The informant stated that he had been a regular and frequent user of cocaine for the past three years.

Officer Guerrieri executed another complaint for a search warrant on May 8, 1989, for defendant’s residence. This complaint was also based on information from an informant whose description is substantially similar to the description of the informant in the first complaint. The informant indicated that he purchased a folded white paper packet for $90 from Coss at Coss’ residence on May 8, 1989. The informant observed 30 such packets on top of a dresser in defendant’s bedroom. After leaving defendant’s residence, the informant snorted the contents of the packet and experienced the same sensations that he had in the past after snorting cocaine.

In addition, Officer William Facchini executed a complaint for a search warrant for defendant’s 1977 Chevrolet Corvette on May 8, 1989. The complaint was based on a conversation between Officer Facchini and an informant whose description is substantially similar to the informant mentioned in Officer Guerrieri’s complaints. According to the informant, defendant was parked in this Corvette at the 5500 block of North Clark Street in Chicago on May 8, 1989. The car’s license plates were identified. The informant leaned into the passenger side of the car while defendant sat behind the wheel. The informant exchanged $45 for a folded white paper packet containing white powder. Defendant retrieved this packet from a freezer bag containing between 50 and 60 such packets that was concealed behind the dashboard area on the passenger side of the car. After leaving the area where the car had been parked, the informant snorted the contents of the packet and experienced the same sensations that he had in the past after snorting cocaine.

The warrants sought by Officer Guerrieri were signed at 6 p.m. and 6:05 p.m. on May 8, 1989. The warrant sought by Officer Facchini was signed at 6:57 p.m. that same day. The warrants were executed that evening. Defendant was arrested. The police recovered 8.7 grams of cocaine from the pizzeria, 67.9 grams of cocaine from defendant’s residence and 16.5 grams of cocaine from defendant’s Corvette, which was in a parking garage behind defendant’s residence.

Before trial, defendant filed a motion pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, to quash the search warrants and suppress evidence. The motion also requested an evidentiary hearing. The motion alleged that Officer Guerrieri knew the informant’s statements to be false when he signed the complaints for search warrants in this case. Defendant contended that once these false statements were set aside, the affidavits were insufficient to show probable cause.

Defendant attached his signed affidavit to the motion, in which he denied ever selling drugs from his business, residence or car. Defendant further stated in his affidavit that on May 8, 1989, he slept until 5 a.m., and worked from 6 a.m. to 5 p.m. at the S & C Electric Company as an electrician. He then cashed two checks at the bank. Defendant arrived at the pizzeria at about 6 p.m. and worked until 9 p.m., when the police arrived. He further stated that he left his jobsite for a short time on May 8, 1989, to take a medical examination administered at his place of employment.

Defendant also attached several exhibits to his motion. Defendant attached a notarized letter from the S & C Electric Company stating that defendant was a full-time employee from June 2, 1988 through May 16, 1989. Also attached was a report from Health Evaluation Programs, Inc., indicating that defendant took a health test on May 8, 1989. Finally, defendant attached a stub purportedly attached to defendant’s paycheck for the pay period ending May 13, 1989, indicating 26 hours of day work and four hours of overtime.

At the hearing on this motion, defendant stated that the motion was directed toward the Facchini affidavit in addition to the Guerrieri affidavits. Defendant maintained that Guillermo Casas, who was allegedly fighting with defendant and wanted his business, was the informant for all three complaints. Defendant argued that the police should have been suspicious of one person claiming to buy drugs from the same person three times in one day. He noted that the police made no attempt to corroborate the informant’s statements.

Defendant also argued that he had an alibi for the entire day of May 8, 1989, based on his affidavit and exhibits. Defendant referred to a time card or computer printout for May 8, 1989, which is not identified in the record, in support of this argument. Defendant asserted that the Corvette was inoperable on the date in question.

, Defendant offered that the following people would testify in support of his alibi: (1) the people who administered his health evaluation at work; (2) three co-workers; (3) a representative of the bank where defendant cashed checks on May 8, 1989; (4) the person in charge of time records at the S & C Electric Company; and (5) the man who worked in the garage where defendant kept his Corvette. Defendant did not offer affidavits by any of these people or explain why he did not offer them.

Finally, .defendant asserted that the police fabricated the informants in the warrants and lied in their complaints. Defendant offered no evidence to support this assertion, but offered to supplement the record. The trial court stated that it would consider only the argument that the police acted in knowing or reckless disregard of the truth. The trial court determined that defendant failed to meet his burden of proof regarding this argument and denied defendant’s motion.

Following a bench trial, defendant was found guilty of two counts of possession of a controlled substance with intent to deliver. Defendant now appeals.

The sole issue on appeal is whether defendant was entitled to an evidentiary hearing on his allegations regarding the police officers’ affidavits. Such affidavits are presumed valid. (See People v. Stewart (1984), 105 Ill. 2d 22, 39, 473 N.E.2d 840, 849.) Nevertheless, a defendant may obtain a hearing on the validity of an affidavit if he or she makes a “substantial preliminary showing” that false statements were included in the affidavit, either deliberately or with reckless disregard for the truth, and that the statements were necessary to a finding of probable cause. (Franks, 438 U.S. at 155-56, 57 L. Ed. 2d at 672, 98 S. Ct. at 2676.) This showing must be more than a mere denial, but may be less than the preponderance of the evidence. (People v. Lucente (1987), 116 Ill. 2d 133, 152, 506 N.E.2d 1269, 1276-77.) The trial court is required to carefully balance the statements in the warrant affidavit against those in support of defendant’s challenges; its determination will not be reversed absent an abuse of discretion. See Lucente, 116 Ill. 2d at 152-53, 506 N.E.2d at 1277.

On appeal, defendant likens his case to Lucente, where the defendant made the requisite showing by submitting affidavits in which he stated facts indicating an alibi and two corroborating affidavits that were sufficiently detailed so as to subject the affiants to the penalties of perjury if they were untrue. Our supreme court stated that “the presence of such sworn corroboration elevates [the defendant’s] showing above the level of ‘mere denial.’ ” Lucente, 116 Ill. 2d at 154, 506 N.E.2d at 1278.

In this case, defendant presented his own affidavit claiming an alibi. Defendant failed to present any corroborating affidavits. Defendant presented a notarized letter from the S & C Electric Company indicating he was a full-time employee on the date of his arrest. Defendant presented a document supporting his claim that he had a health examination at work that day. Defendant presented a stub indicating that he worked for 26 hours at the S & C Electric Company the week he was arrested. Defendant states that he tendered a time card indicating that he punched in at about 5:50 a.m. and out at about 4:45 p.m. on the day in question, though defendant has failed to identify this card in the record. These exhibits lack detail and do not negate the possibility that defendant could have sold drugs before work, on his way to work, during breaks away from work, and after work. Consequently, the trial court did not abuse its discretion in denying the Franks hearing. See People v. Martine (1985), 106 Ill. 2d 429, 435-36, 478 N.E.2d 262, 264.

Defendant claims that his oral offer of proof regarding persons who would testify on his behalf obviates the need to submit their affidavits. Franks states that “[affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.” (Franks, 438 U.S. at 171, 57 L. Ed. 2d at 682, 98 S. Ct. at 2684.) In this case, the defendant’s affidavit, the notarized letter and other exhibits were furnished, but defendant’s oral offer of proof does not explain why the statements of others are absent. In addition, unlike the sworn affidavits in Lucente, defendant’s oral offer of proof does not subject anyone to the penalties for perjury. Consequently, the offer of proof need not be considered in this case.

Defendant claims that the trial court nevertheless relied on the offer of proof. The record on this point is ambiguous, but we note that given the record in this case, such reliance would have been error. Moreover, as such error would have been induced by and favored defendant, he cannot complain of it here. See People v. Jordan (1983), 116 Ill. App. 3d 269, 274, 452 N.E.2d 93, 96.

Defendant argues that the State’s case is weakened by the fact that the police did not attempt to corroborate the informant’s statements. (See Lucente, 116 Ill. 2d at 154, 506 N.E.2d at 1278.) However, the record indicates that the trial court considered this argument and rejected it. Given the record in this case, including the level of detail in the police officers’ affidavits, we cannot conclude that the trial court abused its discretion in this regard.

For all of the aforementioned reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

MANNING, P.J., and O’CONNOR, J., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    THOMAS JORDAN, Plaintiff-Appellant, v. THE CIVIL SERVICE COMMISSION, Defendant-Appellee.
    First District (4th Division)
    No. 1 — 90—1995
    Opinion filed May 6, 1993.
    Thomas Jordan, of Chicago, appellant pro se.

    Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Lynn K. Mitchell, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Thomas Jordan, sought to recover damages from defendant, the Civil Service Commission, an agency of the City of Chicago (hereinafter the City), for breach of an alleged contract providing compensatory time off for “overtime” and the accrual of sick days and vacation days to be maintained for his benefit. Plaintiff further sought back pay for a wrongful discharge from 1967 to 1972.

Plaintiff filed an action in the United States District Court for the Northern District of Illinois. In 1983, the Federal judge granted summary judgment in favor of the City, finding that plaintiff had no claim under Federal law. The original 11-count complaint in this cause was filed in 1984. Count VIII was dismissed with prejudice. In 1989, plaintiff filed a third amended complaint having three counts. Count I alleged a cause of action for “detrimental reliance.” Illinois law provides no cause of action under a theory of detrimental reliance. However, the record indicates that defendant was able to treat counts I and III of plaintiff’s third amended complaint as if they were brought under a theory of implied or quasi contract. Count II alleged a breach of contract. Count III has been waived on appeal. The trial court granted defendant’s section 2 — 615 motion to strike and dismiss the third amended complaint. (Ill. Rev. Stat. 1989, ch. 110, par. 2— 615.) Plaintiff elected not to file a fourth amended complaint. The cause of action was then dismissed by the trial court with prejudice. This appeal followed.

On appeal, plaintiff contends that the trial court erred in finding that (1) his third amended complaint alleges insufficient facts to state a cause of action; (2) his third amended complaint should have been dismissed; and (3) count VIII of his original complaint should have been dismissed.

We affirm.

Plaintiff was hired by the City in 1951 as a license investigator. He was wrongfully discharged in 1967 but in 1972 was reinstated pursuant to a court order. In a 1975 ordinance, the City created the Department of Personnel and ceased to follow the civil service act of Illinois. (Ill. Rev. Stat. 1973, ch. 24, par. 10 — 1—1 et seq.) Plaintiff contends that he was denied certain job duties and promotions to which he had previously been entitled under the civil service system. From 1975 to 1979, plaintiff did some work in excess of his required hours. Plaintiff alleges that the City promised him compensatory time for each hour worked beyond his required 40 hours per week. Plaintiff further alleges that the City’s response to his request was to deny him both the compensatory time and any alternative compensation.

In plaintiff’s request for relief, he argues that the trial court was wrong in refusing to allow him to maintain his action of counts I and II of his third amended complaint, counts I and II of his second amended complaint, and count VIII of his original complaint. However, this court adheres to the principle that once a plaintiff files an amended complaint, he has waived any objection to the trial court’s ruling on any former complaints. Barbour v. South Chicago Community Hospital (1987), 156 Ill. App. 3d 324, 327, citing Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, 153.

Thus, the first issue on appeal is plaintiff’s contention that his third amended complaint alleges sufficient facts to state a cause of action. It was dismissed with prejudice by the trial court and is, therefore, a final and appealable order. (McMann v Pucinski (1991), 218 Ill. App. 3d 101, 106.) In reviewing a motion to dismiss, this court “must determine whether the allegations of the complaint when interpreted in the light most favorable to the plaintiff are sufficient to set forth a cause of action upon which relief may be granted.” Brooks v. Village of Wilmette (1979), 72 Ill. App. 3d 753, 756.

Plaintiff has two counts in his third amended complaint. Count III of plaintiff’s third amended complaint was not at all addressed in plaintiff’s opening brief. Illinois law states that all arguments not raised in an opening appellate brief are waived. (See 134 Ill. 2d R. 341(e)(7).) Thus, count III will not be considered by this court of review.

Plaintiff makes several allegations in count I. First, he alleges that the City agreed to compensate him for his “overtime” hours. Further, paragraphs 7 and 10 of count I allege the following:

“7. Jordan also was allowed to accumulate a certain number of sick days and vacations, from year to year, and was advised by Chicago [the City of Chicago], through its agents and employees, that Jordan was being credited with such accumulation of vacation days, sick days and overtime hours.
* * *
10. Jordan had only worked the overtime and only allowed the vacation and sick days to accumulate because the defendant Chicago promised and agreed to compensate Jordan with compensatory time off.”

Plaintiff alleges that the fair monetary value of his damages in not being compensated for the aforementioned hours, days and time is approximately $150,000.

Count II is alleged in the alternative. It reiterates count I and alleges that the City’s refusal to provide plaintiff compensation for “overtime” hours, vacation days and sick days amounted to a breach of contract. Thus, plaintiff requests monetary compensation for all damages incurred as a result of the City’s breach.

In count I, plaintiff is attempting to apply the doctrine of equitable estoppel against the City. This panel has stated the following:

• “In order to invoke equitable estoppel against a municipality, plaintiffs must prove two elements: ‘(1) an affirmative act on the part of the municipality; and (2) the inducement of substantial reliance by the affirmative act.' ” Central Transport, Inc. v. Village of Hillside (1991), 210 Ill. App. 3d 499, 515, quoting Bank of Pawnee v. Joslin (1988), 166 Ill. App. 3d 927, 939.

First, plaintiff is unable to prove an affirmative act on the part of the municipality. In his claim, plaintiff does not specify the name or title of the party with whom he entered into this alleged contract. Plaintiff alleges only that he was “advised by Chicago [the City of Chicago], through its agents and employees,” that he would be compensated for his overtime hours and for his accumulation of vacation and sick days. The Illinois Municipal Code requires that agents and employees of a municipal corporation may not enter into any contract on behalf of the municipality without prior appropriation (Ill. Rev. Stat. 1977, ch. 24, par. 8 — 1—7) and approval by a majority vote of the city council (Ill. Rev. Stat. 1977, ch. 24, par. 3 — 11—17). Thus, any alleged representations made by the City’s “agents and employees” cannot be invoked against the City.

Second, we do not find that plaintiff has shown substantial reliance. This panel has followed the Illinois Supreme Court in determining that “[t]hose who deal with governmental bodies take the risk of ‘having accurately ascertained that he who purports to act for [the body] stays within the bounds of his authority.’ ” City of Chicago v. Unit One Corp. (1991), 218 Ill. App. 3d 242, 246, quoting Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill. 2d 157, 160-61.

Here, plaintiff’s argument is based upon his own decision to rely on the promises of some municipal employees whom plaintiff chooses not to identify. This reliance was unfortunate but the City cannot be legally held at fault. Thus, we agree that plaintiff’s third amended complaint alleges insufficient facts to state a cause of action.

The next issue on appeal is whether plaintiff’s third amended complaint is insufficient as a matter of law with respect to the validity of the alleged contract. This issue addresses the alternative allegation under count II. Count II alleges a breach of an “unwritten agreement” between plaintiff and the City of Chicago, and requests compensation for all damages incurred as a result of the City’s breach.

Plaintiff specifically alleges that under this agreement, he was to receive “compensatory time” apart from his 40-hour work week at a rate of 11/2 hours worked in excess of the required 40 hours. This purported agreement also credited plaintiff for any accumulation of vacation days, sick days and overtime hours. Statutory law requires that any contract with the City, made for monetary compensation, is subject to the Illinois Municipal Code. The relevant part provides:

“No contract shall be made by the corporate authorities, or by any committee or member thereof, and no expense shall be incurred by any of the officers or departments of any municipality, whether the object of the expenditure has been ordered by the corporate authorities or not, unless an appropriation has been previously made concerning that contract or expense. Any contract made, or any expense otherwise incurred, in violation of the provisions of this section shall be null and void as to the municipality, and no money belonging thereto shall be paid on account thereof.” Ill. Rev. Stat. 1977, ch. 24, par. 8 — 1—7.

Here, the record does not indicate that any appropriation had been made concerning this “unwritten agreement” with the City. Therefore, any unauthorized contract or expense incurred on behalf of the City would be deemed null and void under this statute. Further, “the courts have found that absent a valid contract or statute regarding overtime, an employee’s salary is payment in full for all of his services without regard to the number of hours worked.” Koudelka v. Village of Woodridge (1980), 91 Ill. App. 3d 884, 886.

“[A] contract made in violation of section 8 — 1—7 is void ab initio and cannot be enforced by estoppel or ratification.” (Ligenza v. Village of Round Lake Beach (1985), 133 Ill. App. 3d 286, 291.) In the instant case, the alleged promises made to plaintiff on behalf of the City were erroneous and Illinois law does not require that the City be held responsible for their impact. Thus, we find that the trial court’s decision was not against the manifest weight of the evidence. (Central Transport, Inc. v. Village of Hillside (1991), 210 Ill. App. 3d 499, 515.) Plaintiff’s third amended complaint was properly dismissed by the circuit court.

The final argument on appeal is whether the trial court erred in dismissing count VIII of plaintiff’s original complaint. In 1967, plaintiff was wrongfully suspended and later discharged from his position with the City. In count VIII of his original complaint, plaintiff requested back pay with interest for his wrongful suspension and discharge. The trial court ultimately determined that plaintiff should be reinstated but was not entitled to back pay. Our review of the record convinces us that the trial court properly dismissed count VIII because, as discussed below, plaintiff’s claim for back pay was barred by laches, res judicata, and the applicable statute of limitations.

In dismissing count VIII, the trial court, relying on Kadon v. Board of Fire & Police Commissioners (1964), 45 Ill. App. 2d 425, held that plaintiff’s claim for back pay was barred by laches. In Kadon, the court reasoned that “[t]here is no fixed rule as to what amounts to laches; its existence usually is determined by the facts and circumstances of each case.” (Kadon, 45 Ill. App. 2d at 429-30.) The determination of laches is at the discretion of the trial court and will not be reversed unless there is an abuse of discretion. Kadon, 45 Ill. App. 2d at 430.

In the present case, the evidence revealed that on February 6, 1969, the trial court ordered that plaintiff be reinstated by the City. The trial court determined that although plaintiff had been wrongfully suspended and discharged, he was not entitled to back pay. This order was affirmed by the Illinois Appellate Court on March 15, 1972. See Jordan v. Civil Service Comm’n (1972), 4 Ill. App. 3d 741.

Plaintiff, however, sought to challenge the trial court’s 1969 order by filing his original 11-count complaint in this cause in 1984, 12 years after the order was entered. We believe this delay gave the trial court a sufficient reason to find that plaintiff’s complaint for back pay was barred based on laches. The importance of the time factor was noted as follows:

“The most stringent requirement timewise is in those cases brought by civil service employees to compel reinstatement and payment of back salaries after discharges alleged to be illegal. A rule has been established that if these actions are not brought within six months of the discharge they will be barred on the ground of laches, unless a reasonable explanation can be given for the delay.” (Kadon, 45 Ill. App. 2d at 430.)

Here, plaintiff did not offer any reasonable explanation for his 12-year delay in bringing this cause of action.

Furthermore, count VIII in plaintiff’s original complaint was brought as a writ of mandamus and thus, laches was an appropriate defense. (See People ex rel. Casey v. Health & Hospitals Governing Comm’n (1977), 69 Ill. 2d 108.) We hold that the trial court did not abuse its discretion in finding that plaintiff’s claim for back pay was barred by laches.

Res judicata was the second reason for the trial court’s dismissal of count VIII. Plaintiff’s Federal cause of action was for damages and injunctive relief. He claimed that his denial of back pay, seniority status and other benefits resulted in a constitutional infringement upon his right to employment. Defendant brought a motion to dismiss which the Federal court treated as a motion for summary judgment. On May 9, 1983, summary judgment was granted in accordance with Federal Rule of Civil Procedure 12(b), with costs to defendant. See Jordan v. City of Chicago (N.D. Ill. 1983), No. 81 — C—7330.

Plaintiff argues that his Federal claim for back pay from 1967 to 1972 is not the same claim being argued in the instant case. He argues that the court should have considered extrinsic evidence to show that the property involved in the Federal court was not the same as that involved in the State court proceedings. Plaintiff stated that it only seemed the same because of the “ambiguous description” of the property in the Federal case. Plaintiff argues that he was precluded from introducing extrinsic evidence due to defendant’s impermissible hybrid motion practice. Hybrid motions for dismissal may require a reversal if prejudice results to the nonmovant. (Davis v. Weiskopf (1982), 108 Ill. App. 3d 505, 508.) However, plaintiff makes no reference to the substance of any extrinsic evidence that could have been shown, nor does he present any argument as to how he has been prejudiced by the hybrid motion. Further, the order of the trial court required defendant to amend the motion on its face, making it a consistent section 2 — 619 motion to strike and dismiss. Therefore, we agree with the trial court and find that plaintiff’s claim for back pay is barred by res judicata.

The last reason barring plaintiff’s claim of back pay is the statute of limitations. Illinois law provides a five-year statute of limitations period for actions “to recover the possession of personal property or damages for the detention of conversion thereof.” (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 205.) Thus, even if there had been no previous cause of action brought on this issue, plaintiff’s claim still would be barred pursuant to statutory law. In examining the necessity of immediately filing a cause of action, it is noted that “the relevant statute of limitations begins to run when a person knows or reasonably should have known of his injury and also knows or reasonably should have known that it was wrongfully caused.” Santa Claus Industries, Inc. v. First National Bank (1991), 216 Ill. App. 3d 231, 236.

In the instant case, plaintiff was wrongfully discharged in 1967 and reinstated in 1972. Thus, plaintiff “reasonably should have known” that his injury existed and was “wrongfully caused” well before he filed this action in 1984. Therefore, we find that plaintiff’s claim for back pay was properly barred due to the five-year statute of limitations.

For the foregoing reasons, we affirm the decision of the circuit court of Cook County dismissing plaintiff’s third amended complaint and dismissing count VIII of plaintiff’s original complaint.

Affirmed.

JIGANTI, P.J., and CAHILL, J., concur.


author: PRESIDING JUSTICE McNAMARA

text:
    DENISE SHIRK, a/k/a Denise Draggist, Plaintiff-Appellee, v. JUDITH A. KELSEY, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 91—0738
    Opinion filed May 7, 1993.

      William V. Johnson, of Johnson & Bell, Ltd., of Chicago (Thomas H. Fegan, of counsel), for appellant.

      Eric H. Check and J. Reed Millsaps, both of Chicago, for appellee.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Denise Shirk, formerly known as Denise Draggist, brought a medical malpractice action against defendant, Judith A. Kelsey, M.D., to recover damages for injuries sustained as a result of defendant’s alleged negligence and wilful and wanton misconduct in the performance of an abortion. A jury found in favor of plaintiff on the negligence count for $300,000, but reduced the award by 25% for plaintiff’s comparative negligence. The jury also found in favor of plaintiff on the wilful and wanton misconduct count, and awarded punitive damages in the amount of $300,000. The jury decreased the punitive damage award by 50% based upon plaintiff’s comparative negligence. As to the negligence count, the trial court entered judgment on the jury’s verdict. As to the wilful and wanton misconduct, the trial court disallowed the jury’s reduction and entered judgment on the full amount.

On appeal, defendant contends that the jury verdicts on the wilful and wanton count as well as the negligence count are not supported by the evidence, and that prejudicial comments and erroneous rulings made by the trial judge deprived defendant of a fair trial.

At trial, plaintiff testified that in June 1982, Doctor Edward J. Saad diagnosed that she was approximately six weeks pregnant. Plaintiff scheduled an abortion at National Health Care Services in Peoria, Illinois, to terminate the pregnancy. On July 10, 1982, plaintiff paid the receptionist for the procedure and signed a three-page consent form which a staff member reviewed with her. Blood and urine samples were drawn by laboratory technicians, and plaintiff spoke with counselling personnel. (Plaintiff previously was pregnant and had an abortion at National Health Care Services in March 1981.)

After approximately three hours, defendant entered the examining room and introduced herself to plaintiff. Defendant explained the procedure and conducted a pelvic examination. She warned plaintiff that there would be some bleeding after the procedure, and that she would also be passing blood clots. After defendant performed the abortion, plaintiff was taken into the recovery room. Plaintiff stated that she was in a lot of pain and experiencing cramps, and that she was crying. She was upset about having the abortion and knew it was a mistake.

A nurse entered the recovery room and informed her that defendant had examined the expelled tissue, and she would have to be suctioned again because all tissue had not been removed. Defendant performed a second suction procedure. After the second procedure, the nurse told plaintiff that there was no chance that she could still be pregnant. Plaintiff returned to the recovery room and received some medication. Thereafter, another staff member returned with a “scant tissue letter” which plaintiff was asked to read and sign. Plaintiff was told to expect some bleeding and cramping, and was instructed to contact the clinic if she had any problems. She was also told to return for a follow-up visit so that she could be examined to make sure that she still was not pregnant.

Upon returning home, plaintiff had some bleeding and cramping, and also passed clots for about a week after the procedure. Plaintiff did not contact anyone at the clinic at that time. During the second week, the bleeding increased and plaintiff’s cramps became more severe. She spoke with a receptionist at the clinic and made an appointment to see defendant. On July 22, plaintiff returned to the clinic and described her symptoms to defendant. She described the heavy bleeding, the unusual clotting, the severity of the cramps, and that she experienced a loss of bladder control. Defendant performed a pelvic examination upon plaintiff and told her that she had a urinary tract infection and prescribed an antibiotic. Plaintiff asked defendant whether she could still be pregnant; defendant answered that she could not.

After leaving the clinic on July 22, plaintiff continued to experience the same symptoms at varying frequencies. Plaintiff stated that she called defendant to report these symptoms, but was unable to give any dates or the number of times that she called. She spoke only with the receptionist, and she was always reassured that there was no problem. She received no other calls from the clinic. Plaintiff’s mother also called the clinic on her behalf.

Around September, plaintiff noticed a knot in her stomach, and that she was gaining weight. Plaintiff and her mother both thought that she might still be pregnant because of her appearance. On September 27, plaintiff began experiencing severe stomach cramps and passed a lot of blood with clotting. Plaintiff’s mother thought she might be having a baby, so she instructed plaintiff’s brother to take her to St. Francis Hospital in Peoria. Plaintiff received a pelvic examination upon arriving at the hospital and was told that there was a foot protruding into her vaginal area, and that she was going to have a baby. After two to three hours of labor, plaintiff delivered a baby boy who lived for approximately 90 minutes. She remained in the hospital for a few days and was discharged with some restrictions as to work and leisure activities.

Plaintiff stated that as a result of this incident, she has experienced emotional problems. As explained by plaintiff:

“Pve had a lot of nightmares. I wake up nights reliving the baby’s birth, the baby’s death. I relive having the abortion. I go through a terrible morning [sic] period a month before the baby’s death. I’m detached from my husband and my kids for at least a month before and weeks afterward. It puts a lot of strain on my marriage because I’m not really fit to be around.”

According to plaintiff, she still mourns her son’s death every year. What happened to her was her “worst nightmare” and she felt as though she was “being repaid” for the two abortions that she had undergone.

On cross-examination, plaintiff stated that she understood the paragraph contained in the consent form which explained the possibility that not all of the fetal tissue may be removed, resulting in an incomplete abortion. Plaintiff also indicated that she understood the importance of follow-up care after the abortion was performed. She received the letter from a staff member explaining that the tissue removed from her uterus would be sent to a pathology laboratory where a microscopic examination would be conducted.

Plaintiff did not recall receiving a telephone call from the director of the clinic, Margaret VanDuyn, informing her that the pathology report revealed information important to her care, and that she should return to the clinic for an appointment. In spite of the fact that plaintiff experienced bleeding throughout the summer, she did not contact Doctor Saad, her obstetrician/gynecologist. After the July 22 visit and pelvic examination by defendant, she was instructed to return to the clinic if she experienced any further problems.

Doctor Saad testified for plaintiff that he was the attending physician when plaintiff was admitted to the hospital in September 1982. The resident on duty at the time diagnosed that plaintiff had an intrauterine pregnancy, approximately 24 weeks by history, or 17 to 18 weeks by size. Doctor Saad opined that the fetus did not have a reasonable chance of survival. A dilation and curretage procedure was performed upon plaintiff immediately following delivery.

Doctor Saad stated that he was a practicing obstetrician and gynecologist in the Peoria area, and that ultrasound, an instrument used to measure the size and shape of various internal organs, was available as a diagnostic tool in that area prior to July 10, 1982. He considered ultrasound and sonogram as very reliable methods for diagnosing pregnancy in 1982.

Plaintiffs brother, Richard Draggist, testified that plaintiff did not want to go through with the abortion, and that she was particularly distressed after delivery. Similarly, Raymond Eiff, a family friend, testified that plaintiff was very depressed as a result of this incident. Marilyn Draggist, plaintiff’s mother, testified that plaintiff was “guilty, ashamed and depressed” following the July 10, 1982, abortion. The mother telephoned the clinic a number of times during the period between July 10 and July 22, 1982, because she was concerned about the pain and bleeding plaintiff had experienced. She also spoke with the clinic several times after the July 22 appointment.

Margaret VanDuyn testified by way of evidence deposition. She had been employed by National Health Care Service for 16 years. She was the administrator and clinic director. On average, approximately 28 first-trimester abortions were performed each day at the clinic.

VanDuyn and defendant analyzed the tissue removed after the first suction procedure was performed upon plaintiff. They noted that very little tissue had been removed from the uterus. Defendant allowed plaintiff to rest a few moments in the recovery room before undertaking a second suction procedure. After the second procedure, VanDuyn observed that virtually no tissue was removed. VanDuyn and defendant gave plaintiff a scant tissue letter, which is given to patients when a false pregnancy, an ectopic pregnancy, or an incomplete abortion is suspected. VanDuyn reviewed this letter with plaintiff following the second suction procedure.

The tissue removed from plaintiff was shipped to a pathologist for review. When VanDuyn received the report, she contacted plaintiff and asked her to come into the clinic. A few days later, plaintiff called complaining of cramping, bleeding and passing clots. The pathology report was received prior to plaintiff’s July 22 appointment, and defendant had an opportunity to review its, contents. VanDuyn and defendant reviewed the report together and discussed various possibilities including administering another pregnancy test. However, they rejected that idea because plaintiff’s hormone level shortly after the pregnancy would probably cause a positive result. Defendant’s record indicated that she felt no adnexal masses, and that plaintiff’s pelvis felt normal thereby ruling out the possibility of an ectopic pregnancy. They decided to recheck plaintiff’s condition when she returned to the clinic in one week. VanDuyn also testified that ultrasound was available in the Peoria area in 1982.

Following the July 22 appointment, VanDuyn contacted plaintiff and again went over the scant tissue report. She asked plaintiff to return to the clinic in one week after the July 22 appointment for another evaluation. Plaintiff never returned after July 22 although VanDuyn made at least two attempts to contact her at the number listed on the scant tissue report. She did not know whether defendant made any attempt to contact plaintiff after plaintiff did not return for her checkup after the July 22 appointment. The policy at that time was to inform the physician, who was responsible for directing other staff personnel.

The next contact VanDuyn had with plaintiff occurred in September, when she received a telephone call informing her that plaintiff had delivered a stillborn child. VanDuyn discussed the situation with defendant. Defendant stated that plaintiff “asked to terminate the pregnancy and we terminated the pregnancy.” VanDuyn described defendant’s reaction as “professional, cold, aloof.”

Doctor Elliot Levine testified as an expert witness on plaintiff’s behalf. He was familiar with the standard of care for terminating first-trimester pregnancies. He estimated that plaintiff was approximately nine weeks pregnant at the time the abortion was performed. According to Doctor Levine, defendant did not deviate from the standard of care with respect to the attempted abortion. He highlighted the significance of a pathology report to determine whether in fact a pregnancy was aborted. Other procedures used to ascertain whether a pregnancy had been terminated included repeating a pregnancy test or performing an ultrasound of the pelvis and uterus to determine its contents.

Doctor Levine opined that ultrasound was “quite good in diagnosing close to a hundred percent” of continuing pregnancies beyond nine weeks. He surmised from his review of the records that ultrasound was available in the Peoria area in 1982. It was a recognized and accepted method to determine the continuation of a pregnancy after an attempted abortion of a nine-week pregnancy where scant tissue is found because it enabled a physician to rule out an ectopic pregnancy, which can be a life-threatening possibility. Doctor Levine opined appropriate care that should have been rendered by defendant after having performed two abortions, and having noted scant tissue after both suction procedures, would have been to pursue a further investigation to explain the pathology report. One of the best tools available would be to perform an ultrasound, or repeat a pregnancy test.

After reviewing defendant’s medical records following plaintiff’s July 22 examination, Doctor Levine found no complaints by plaintiff or a notation of any diagnosis recorded in the charts. He opined that plaintiff’s uterus could not have been of normal size, for it had to have grown as the pregnancy progressed. Doctor Levine stated that defendant deviated from the standard of care with respect to the subsequent management and follow-up care of plaintiff, and that substandard care was provided after the procedure. He felt that it was not unreasonable for plaintiff not to have returned to defendant or any other doctor after she was told not to worry about her bleeding and cramping complaints, and she was told that she was not pregnant.

Doctor Levine further testified that plaintiff suffered no permanent injury as a result of defendant’s deviation from the standard of care. However, in view of his extensive clinical experience with women who have sustained either spontaneous miscarriages or elective, induced abortions, he felt that the impact of this event could lead to emotional problems such as those described by plaintiff.

On cross-examination, Doctor Levine indicated that he believed someone who was manifesting symptoms such as defendant was experiencing should have returned for medical care. Following a first-trimester abortion, the urine test could register an incorrect positive result for one week.

Defendant testified as an adverse witness during plaintiff’s case in chief. Her license to practice medicine in Illinois had just been suspended because of her failure to pay a renewal fee. Defendant stated that although she was practicing as an obstetrician/gynecologist in 1982, she had no residency training in that specialty.

Defendant described the two suction procedures she performed on plaintiff, which essentially paralleled VanDuyn’s and plaintiff’s account of the events. The pathology report was sent out in accordance with routine procedure, and defendant made a mental note that if plaintiff did not return for her three week checkup, she would remind the administrator to contact her. Defendant was quite certain even prior to the results of the pathology report that the pregnancy had not been terminated, and that it was either intrauterine or an ectopic pregnancy; however, she made no such notation in plaintiff’s chart.

Defendant received plaintiff’s pathology report prior to the July 22 appointment. After reading the report, defendant concluded that the pregnancy had not been terminated on July 10 because the report indicated that no products of conception were found. Defendant suspected three possibilities for plaintiff’s condition, which included an ectopic pregnancy, an incomplete abortion which spontaneously passed between July 10 and July 22, or that she had an incomplete abortion which did not pass between that time period.

When defendant saw plaintiff on July 22, she was entertaining any one of 150 diagnoses prior to the time that she began her examination. Plaintiff made no “meaningful” complaints to her prior to the examination, and the symptoms she described conflicted with those given to other staff members. However, defendant conceded that complaints would be meaningful from a woman upon whom she had performed two suction abortion procedures to terminate a nine-week pregnancy 12 days earlier, where scant tissue was recovered, who was then complaining of bleeding, passing clots, pain, and where the pathologist’s report indicated that no products of conception were found.

At the July 22 examination, defendant found plaintiff’s uterus to be within an acceptable range for a woman who had undergone an abortion 12 days ago. She concluded that plaintiff was not pregnant either within the uterus or ectopically. She specifically told plaintiff to return to the clinic in one week. She treated her by prescribing ampicillin, but was not certain that plaintiff had a urinary tract infection. In defendant’s opinion, the only appropriate treatment was to have plaintiff return in one week when conclusive findings could be evaluated. When plaintiff did not return for a checkup, defendant made an attempt to get her phone number from VanDuyn, but her request was denied. Defendant told VanDuyn that it was critical for plaintiff to return to the clinic within the next few days, and VanDuyn stated that she would try to reach her. Defendant stated that the only access to the medical records was through VanDuyn, and that VanDuyn refused to give defendant the chart because she felt it would invade the patient’s privacy, and that VanDuyn would call her.

Defendant testified that ultrasound was available in the Peoria area in 1982, in contravention to her deposition testimony where she indicated that it was not available at all in that community. Defendant agreed that given the possibility plaintiff might still be pregnant with a potentially fatal ectopic pregnancy, ultrasound miglit have been a good suggestion. In the hands of qualified personnel, ultrasound was very reliable in diagnosing a pregnancy beyond nine weeks. On October 18, 1982, defendant learned of the birth of plaintiff’s baby. She did not act indifferent or cold.

Doctor Robert Bouer testified on behalf of defendant. He testified that the pelvic examination was in error; however, it was not unusual for doctors to disagree about findings of the uterus during a pelvic ex-animation because of the difficulties in the examination. He felt that defendant rendered appropriate medical care to the patient, given her findings and impressions. A physician with a large volume practice would not be expected to follow up and look for patients personally. Further, a patient who has undergone these procedures and has been warned has a duty to seek medical help, either with the original gynecologist or some other physician. Doctor Bouer believed that an ultrasound examination was not indicated because defendant did not feel an enlarged uterus.

Doctor Bouer further opined that a patient’s complaints of passing clots and bleeding and pain would be important complaints in light of plaintiff’s recent medical history. Any follow-up care in contacting a patient could be performed by staff personnel at the doctor’s direction. Doctor Bouer found it incredible that a nonphysician such as VanDuyn would refuse to turn over a medical chart to a well-qualified physician. He further testified that when plaintiff left defendant’s care on July 22 suspecting that she might still be pregnant, she would have a duty to continue follow-up care. He did not believe that it was negligent for a physician to decline to order ultrasound if an ectopic pregnancy had already been ruled out.

The jury found in favor of plaintiff on both the negligence and wilful and wanton misconduct counts. As previously discussed, the jury reduced the wilful and wanton misconduct count by 50% for plaintiff’s comparative negligence. Relying upon the reasoning employed by this court in Burke v. 12 Rothschild’s Liquor Mart, Inc. (1991), 209 Ill. App. 3d 192, 568 N.E.2d 80, the trial court disallowed the reduction on the wilful and wanton misconduct count for plaintiff's comparative negligence.

At the outset, we observe that the dispositive issue on review concerns whether defendant breached the standard of care with regard to the manner in which follow-up care was provided after plaintiff’s abortion. We note that several ancillary issues in this appeal, including the propriety of allowing plaintiff to amend the complaint on the eve of trial to add a wilful and wanton misconduct count, permitting the submission of the wilful and wanton allegations to the jury, refusal to render the appropriate Illinois Pattern Jury Instructions defining wilful and wanton conduct, and the inconsistent verdicts of the jury regarding plaintiff’s comparative negligence, are derived from the award of punitive damages for defendant’s alleged wilful and wanton misconduct. Accordingly, in light of the significance of this issue to the disposition of this case, we shall first focus our attention upon whether the evidence presented at trial supported an award of punitive damages for defendant’s conduct.

It is instructive to first examine the basic tenets for defining wilful and wanton conduct in the context of the award of punitive damages. In general, punitive damages may be awarded when the defendant has acted wilfully or with wanton disregard for the rights of others. Such damages are allowed as a warning and example to deter the defendant and others from committing like offenses in the future. (Burke v. 12 Rothschild’s Liquor Mart, 209 Ill. App. 3d 192, 568 N.E.2d 80; Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.) Wilful and wanton conduct is found where an act was done “ ‘with actual intention or with a conscious disregard or indifference for the consequences when the known safety of other persons was involved.’ ” (Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 430, 412 N.E.2d 447, quoting Myers v. Krajefska (1956), 8 Ill. 2d 322, 329.) A determination of wilful and wanton misconduct will be based on the facts of any given case. Burke v. 12 Rothschild’s Liquor Mart, 209 Ill. App. 3d 192, 568 N.E.2d 80; Spring v. Toledo, Peoria & Western R.R. Co. (1977), 69 Ill. 2d 290, 371 N.E.2d 621.

Because of their penal nature, punitive damages are not favored in the law. (Deal v. Byford (1989), 127 Ill. 2d 192, 203, 537 N.E.2d 267; Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 384 N.E.2d 353; Cornell v. Langland (1982), 109 Ill. App. 3d 472, 440 N.E.2d 985.) An award of punitive damages has been deemed appropriate in situations where torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts wilfully, or with such gross negligence as to indicate a wanton disregard of the rights of others. (Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 384 N.E.2d 353.) As set forth in the Restatement (Second) of Torts §908(2) (1979):

“Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause ***.” Restatement (Second) of Torts §908(2) (1979).

In Stogsdill v. Manor Convalescent Home, Inc. (1976), 35 Ill. App. 3d 634, 343 N.E.2d 589, this court set aside an award for punitive damages where a convalescent patient brought an action against a physician when her leg was amputated as a result of allegedly deficient medical and convalescent care. The evidence at trial demonstrated that the plaintiff was at high risk for ulcer healing problems due to her advanced age. The plaintiff developed an ulcer on her ankle, and gangrene set in within five months. During that interim period, the defendant saw her repeatedly. In spite of continuing reports from the nursing home staff and the patient’s family, the defendant failed to institute appropriate and necessary care and to diagnose the gangrene. Expert testimony established that those failures constituted a deviation from the standard of care. Nonetheless, the Stogsdill court set aside the $80,000 judgment for punitive damages, despite its conclusion that the defendant “left undone many things which he ought to have done.” 35 Ill. App. 3d at 660.

Plaintiff relies upon Ingram v. Little Co. of Mary Hospital (1982), 108 Ill. App. 3d 456, 438 N.E.2d 1194, as support for her position that a health-care provider can be liable for wilful and wanton misconduct, if it acts with reckless disregard for the safety of others. We find, however, that Ingram is distinguishable from the present case, since there the court only considered whether the plaintiff’s allegations stated an action for the hospital’s wilful and wanton misconduct sufficient to withstand a motion to dismiss.

The initial decision as to whether punitive damages may be imposed in a particular case in this State is a matter normally reserved to the trial judge. (Loitz v. Remington Arms Co. (1990), 138 Ill. 2d 404, 563 N.E.2d 397; J.I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, Inc. (1987), 118 Ill. 2d 447, 516 N.E.2d 260; Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 454 N.E.2d 210.) In the present case, we do not believe that sufficient evidence of defendant’s wilful and wanton misconduct existed to justify submitting plaintiff’s claim for punitive damages to the jury. We hold that defendant’s follow-up care did not constitute such a gross deviation from the standard of care so as to be characterized as wilful and wanton misconduct.

The distinction between wilful and wanton misconduct and negligence in any given case necessitates close scrutiny according to the particular facts presented. Such scrutiny of the record reveals that the follow-up care rendered by defendant does not rise to the level of wilful and wanton conduct. Prior to the time that defendant met with plaintiff on July 22, she had an opportunity to review the pathology report and consider a number of possible diagnoses. She performed a pelvic examination, and told plaintiff to return in a week so that her condition could again be evaluated. Plaintiff did not dispute receiving that instruction. The administration of a pregnancy test would have been of no benefit because plaintiff’s hormone level shortly after the pregnancy would have likely caused a positive result for approximately one week, as testified to by plaintiff’s expert, Doctor Levine. While it is true that defendant could have utilized ultrasound as a diagnostic tool to determine whether plaintiff was still pregnant on July 22, we do not believe the failure to do so, in itself, is sufficient to warrant the imposition of punitive damages. As previously discussed in Stogsdill, negligent actions or omissions do not support an award of punitive damages.

The testimony of the clinic director, Margaret VanDuyn, stated that defendant reacted to the birth of plaintiff’s baby in a cold, professional, aloof manner. Even so, we do not believe that such conduct evinces a reckless indifference or conscious disregard of consequences, or a state of mind characteristic of wilful and wanton conduct. The conduct must involve some element of outrage similar to that usually found in crime, either because the defendant’s acts are done with an evil motive or because they are done with reckless indifference to the rights of others. Loitz v. Remington Arms, 138 Ill. 2d 404, 563 N.E.2d 397; Restatement (Second) of Torts §908, Comment b, at 464-65 (1979).

(Parenthetically, we note that section 2 — 1115 of the Illinois Code of Civil Procedure, effective August 15, 1985, provides that punitive damages are no longer recoverable in healing art malpractice cases. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 115).)

In view of our conclusion that insufficient evidence of wilful and wanton misconduct existed to support the jury’s determination, we reverse that portion of the judgment awarding punitive damages to plaintiff. Thus, we must now decide whether defendant’s conduct was negligent.

Defendant contends that the verdict of the jury on the negligence count is not supported by the evidence; thus, that she is entitled to judgment notwithstanding the verdict or to a new trial on this basis. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) The distinctions between reckless conduct and negligence are elucidated in Comment g of the Restatement (Second) of Torts §500:

“[Reckless misconduct] differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man. It differs not only from the above mentioned form of negligence, but also from that negligence which consists in intentionally doing an act with knowledge that it contains a risk of harm to others, in that the actor to be reckless must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent. The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially tó a difference in kind.” Restatement (Second) of Torts §500, Comment g, at 590 (1965).

To present a case of negligent medical treatment, the plaintiff must prove: (1) the proper standard of care against which the physician’s conduct is measured; (2) a negligent failure to comply with the standard; and (3) that the injury at issue was proximately caused by this negligence. Brown v. Moawad, (1991), 211 Ill. App. 3d 516, 570 N.E.2d 490.

In this case, plaintiff sustained her burden of demonstrating defendant’s negligence in the follow-up care provided to her. Doctor Saad testified that ultrasound was available in the Peoria area in 1982, and that it was a reliable method for diagnosing pregnancy. Doctor Levine testified that ultrasound was a recognized and accepted method to determine the continuation of a pregnancy after an attempted abortion of a nine-week pregnancy where scant tissue is found. Doctor Levine believed that under the circumstances, defendant should have pursued a further investigation to explain the pathology report, either through the performance of an ultrasound, or a repeat pregnancy test. It was his opinion that defendant deviated from the standard of care with respect to the subsequent management and follow-up care of plaintiff. Indeed, defendant also agreed that given the possibility plaintiff might still be pregnant with an ectopic pregnancy, ultrasound was a good suggestion and a very reliable method in diagnosing a pregnancy beyond nine weeks.

We also consider defendant’s testimony that although she was quite certain even prior to the results of the pathology report that the pregnancy had not been terminated, she made no such notation in plaintiff’s chart. Defendant’s own expert, Doctor Bouer, testified that when plaintiff left defendant’s care on July 22 suspecting that she might still be pregnant, she would have a duty of continued follow-up care. In Illinois, a surgeon is required to continue caring for the patient until the threat of post-operative complications is past. Longman v. Jasieck(1980), 91 Ill. App. 3d 83, 414 N.E.2d 520.

Without doubt, plaintiff’s failure to seek medical help or return for a follow-up visit in one week following the July 22 examination further complicated her condition. According to defendant, the only access she had to defendant’s medical records was through VanDuyn, who refused to give the chart to her because it would invade plaintiff’s privacy. However, even defendant’s own expert witness found it incredible that a nonphysician such as VanDuyn would refuse to turn over a medical chart to a physician. (We also note that plaintiff’s judgment was reduced by 25% for her comparative negligence.)

Accordingly, we find that the jury’s finding of negligence on the part of defendant has ample support in the record.

Finally, defendant asserts that the combination of several errors and improper rulings made by the trial judge demonstrate his prejudice against the abortion procedure and the fact that defendant performed it, which in turn effectively deprived her of a fair trial. Defendant contends that comments made by the judge during the conference on jury instructions stating that if defendant was found guilty she should be punished with a capital “P” demonstrate his prejudice. These comments, however, were made outside the presence of the jury; as such, they could not have deprived defendant of a fair trial.

Additionally, review of the record reveals that prior to trial, the judge advised both sides that he was a practicing Roman Catholic. Despite his religious convictions, the judge believed that he would be able to preside over the trial in a fair and impartial manner. Both sides were afforded the opportunity to discuss his assignment to their case with their clients and to ask for his recusal. Defendant’s attorney discussed the assignment with the partners at her law firm and informed the judge that she had no objection to the judge presiding over the trial.

Defendant further contends that the prejudice of the trial judge was exacerbated by the improper conduct of plaintiff’s counsel throughout this case. Specifically, defendant maintains that plaintiff offered improper evidence and arguments regarding the nature of the procedure and plaintiff’s regret at having the abortion, defendant’s contemplation of not performing the abortion, and plaintiff’s right to recover damages for her emotional pain resulting from the abortion.

Prior to trial plaintiff filed an amended complaint, in which a cause of action for negligent infliction of emotional distress was added. To be entitled to recovery for the negligent infliction of emotional distress, a plaintiff must prove three elements: (1) the plaintiff must have been in the zone of danger; (2) the plaintiff must have felt contemporaneous fear for his safety; and (3) the plaintiff must show some sign of physical injury or illness as a result of his emotional distress. (Robbins v. Kass (1987), 163 Ill. App. 3d 927, 516 N.E.2d 1023.) The physical illness or injury requirement indicates a.desire to permit compensation only in cases involving severe or serious emotional distress. (Robbins v. Kass, 163 Ill. App. 3d 927, 516 N.E.2d 1023.) In view of the fact that plaintiff was advancing a claim for negligent infliction of emotional distress, we find that plaintiff’s testimony concerning her feelings both prior and subsequent to the abortion were relevant to prove the elements of this cause of action.

Defendant also contends that the trial judge improperly changed defendant’s testimony as to whether she had seriously considered not performing the abortion. The judge misstated defendant’s response after plaintiff’s counsel asked defendant in various ways whether she considered not performing this abortion.

The conduct and remarks of the judge are grounds for reversal only if they are such as would ordinarily create prejudice in the minds of the jury. (Oko v. Rogers (1984), 125 Ill. App. 3d 720, 466 N.E.2d 658.) An error is not reversible unless it has been shown that the error was substantially prejudicial and thereby unduly affected the outcome of the trial. (Skelton v. Chicago Transit Authority (1991), 214 Ill. App. 3d 554, 573 N.E.2d 1315.) In the present case, where the issue on appeal concerned defendant’s rendition of follow-up care and did not attack whether the abortion was wrongfully performed, we do not find that the judge’s error was unduly prejudicial to defendant.

For the foregoing reasons, the judgment of the circuit court of Cook County as to the negligence count is affirmed and as to the wilful and wanton conduct is reversed.

Affirmed in part; reversed in part.

RAKOWSKI and GIANNIS, JJ., concur.


author: JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LINDON WEST, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 91—3666
    Opinion filed May 7, 1993.
    Rita A. Fry, Public Defender, of Chicago (Mark Floyd Pasterski, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Margaret J. Faustmann, and Matthew J. McQaid, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

A jury convicted the defendant, Lindon West, of first-degree murder; he was sentenced to 25 years’ imprisonment. He contends that he is entitled to a new trial because the trial judge improperly ruled on certain character evidence.

Maurice John Burton testified that on December 25, 1989, he was playing pool with the defendant in a lounge in Chicago. After the last game, the defendant became angry, leaned across the pool table and pushed Burton. After being grabbed from behind and restrained by another man, the defendant was escorted by the others, including Burton’s cousin, Leon Ragland, to the front door of the lounge. Immediately thereafter, Burton heard people shout, “Hit the floor, hit the floor,” and he then heard gunshots as he dropped to the floor.

Leon Ragland testified that about 10 p.m. on December 25, 1989, he was at the same lounge, where he had stopped and talked to his cousin who worked there. While playing pool in the lounge, Ragland observed the defendant enter with a woman, and they were subsequently introduced to each other. About one-half hour later he heard the defendant’s loud voice. Candice Gunn, the owner of the lounge, asked the defendant to leave the lounge. Ragland assisted in escorting the defendant to the door, where he gave the defendant a push out the door and Gunn immediately closed it. However, when Ragland peered out the window immediately above the door, he observed the defendant approach with a pistol. He then told the other patrons to “get down” because the defendant had a gun, but as he spoke he heard three or four gunshots. When the shots stopped he discovered the decedent, Carmen Hazelwood, lying on the floor and choking. Ragland also said that he never saw anyone grab the defendant while he was standing at the pool table.

Jean Thompson testified that she worked at the lounge as a barmaid on the night in question, and that she observed the defendant argue with Burton over the result of a game of pool. She then observed the owner of the lounge approach and walk to the door with the defendant and his girl friend. She then noticed that the decedent was attempting to walk along with them, but she asked decedent not to involve himself in the incident. She then heard Burton shouting that the defendant had a gun and as she immediately asked decedent to lay down, she heard four or five gunshots and the decedent “fell on top of [her].” After the shooting she saw the decedent lying on the floor. Thompson said she did not see the defendant push Burton or observe anyone grab the defendant.

Police officer Jeremiah Barry testified that he and his partner investigated the shooting. When he entered the lounge he found decedent lying on the floor, bleeding from his head. He recovered four spent shell casings and one live round in front of the lounge on the sidewalk. Barry also noticed two bullet holes in the diamond-shaped window in the lounge door as well as blood adjacent to the bar area in the lounge. It was later established that the decedent died from a gunshot wound which entered the back of his neck.

Police officer James Shader testified that on December 26, 1989, he took photographs of the four bullet holes in the window and door of the lounge. He also said that the only blood he found at the immediate location was inside the lounge near the bar with none outside the lounge area.

Character witnesses and occurrence witnesses testified for the defendant. Henry Brown stated that the defendant did not have a reputation in the community for violence and that he was known to be honest. On cross-examination, Brown said that he had discussed the defendant’s truthful nature with other people in the community.

Willie E. Wilkins, Sr., stated that the defendant was generally known in the community for being honest, peaceful and quiet. Wilkins also said that the defendant had to pass his Mason association’s approval to become a member in that organization. As a result, the defendant’s reputation as a truthful, peaceful and law-abiding person was discussed in conjunction with his membership application. According to Wilkins, the defendant was subsequently admitted as a member of the lodge. However, the trial judge would not allow defense counsel to elicit more details from Wilkins concerning the defendant’s good works and attendance in his lodge.

Mary Mackie testified that she was the defendant’s girl friend and was living with him. On December 25, 1989, she went to the lounge with the defendant and arrived there about 11 p.m. The defendant knew the decedent; they were good friends. Mackie sat at the bar while the plaintiff played pool, but about 20 minutes later, she turned and saw the defendant fall against a wall with a crowd surrounding him. She then saw someone grab the defendant and strike him on his head while a man held the defendant from behind. As she and the' defendant struggled to leave, a man by the door grabbed the defendant and hit him in the face with his fist. Once outside the lounge Mackie fled, but she heard gunshots as she did so. About five minutes later the defendant joined her, although he was limping. Mackie said that the defendant did not display a pistol in the lounge, and she had not seen him attack anyone even though two men were holding pool sticks when they approached the defendant. Mackie also said the defendant had a reputation in the community for being peaceful, law-abiding and honest.

The State began the cross-examination of Mackie by asking if the defendant had ever pulled a gun on her. When the defendant’s attorney objected, the court ordered a sidebar. Over the objection of the defendant, the judge said that the defendant had opened the door and that he would permit the State to show that the witness had made complaints against the defendant.

During the cross-examination of Mackie, the following occurred:

“Q. Ms. Mackie, did Lindon West ever point a gun at you?
A. No.
Q. Did Lindon West ever strike you?
A. Yes.
Q. On more than one occasion?
A. No, not really, no.
Q. Just one time in 17 years?
A. And I strike him back, yes. We have our arguments.
* * *
Q. Ms. Mackie, did you ever file a complaint at that time when Lindon West struck you?
A. Yes.
Q. Did you ever file a complaint another time when he struck you?
A. Yes.
Q. Did you ever file a complaint saying he pointed a gun at you?
A. No.
Q. In May of 1983, did you ever file a complaint saying Lindon West pointed a hand gun at you?
A. No.”

Jerome Wright testified that he had been the defendant’s friend for 10 years and that about midnight on December 25, 1989, he was parked outside the lounge with Ray Brandy. As he was sitting in his car, he observed the lounge door open and the defendant “fall out the door from somebody punching.” He then saw three other men approach the defendant with pool sticks and strike the defendant while he lay on the ground. The defendant then stood up holding a gun and started shooting while the men with the pool sticks retreated into the lounge. After the shooting stopped, Wright opened the door to the lounge and saw the occupants lying on the floor. Wright, who had a prior conviction for theft, said that he did not observe the defendant bleeding or bruised after or during the incident. However, he did notice that the lounge door did not close until the defendant had fired several shots.

Ray Brandy testified that he had been the defendant’s friend for over 10 years. About midnight he was talking to Wright when he saw the lounge door open and the defendant “fall out of the door.” Several men then surrounded the defendant and struck him with their hands, feet and pool sticks for several minutes. As Brandy exited the car to assist the defendant, he saw the defendant pull a gun and then he heard gunshots, although he did not actually see the defendant fire.

The defendant testified that he had been steadily employed and was an active member of his church and of his social organization, the Masons. On December 25, 1989, about 11 p.m. he and Mackie went to the lounge where he bought the decedent a beer and talked to him for about 20 minutes. The defendant, the decedent and the decedent’s family had been friends for many years; he denied having an altercation with the decedent on that night. The defendant played pool with Burton, but they began arguing about who had won the last game. After Burton shoved him and the defendant shoved him back, the other men in the bar approached him with pool sticks while one grabbed him from behind. Immediately thereafter, the barmaid struck him. He and the decedent backed towards the door trying to defend Mackie from the hostile crowd; he did not draw his gun because he did not want to hurt anybody.

The defendant and Mackie were pushed into a small vestibule area, while the crowd continued to hit and punch him with their pool sticks and fists. At this point the decedent attempted to leave with them, but a barmaid prevented him from doing so. After they opened the outside door, the defendant fell on his back on the ice and told Mackie to run. He then saw the decedent, who had followed to assist the defendant, although he could not ascertain if the decedent actually came outside the lounge. For about a minute the crowd beat him with pool sticks and kicked him; when he finally managed to raise himself to his right knee, he fired his gun without aiming at anyone in particular. He fired between these people because he feared for his life. After he fired the shots he heard the lounge door slam, but he did not have a clear view of the door while firing the shots. However, he was aware that the door was open at one point when he was firing the shots, because there were two other men positioned in the doorway. After he fired the shots the men immediately ran inside the lounge, except for one who was locked outside.

In rebuttal Officer Edward Daluga testified that on May 31, 1983, Mackie told him that the defendant had threatened her life with a gun and that, at that time, Daluga placed the defendant under arrest on signed complaints by Mackie.

Colloquy occurred over the disposition of the complaints. Despite the uncertainty arising from that colloquy, we infer from the record that the defendant was either acquitted on all the charges or that the cases were dismissed. We note that when the defendant’s attorney first objected to the introduction of the testimony before the cross-examination of Mackie began, he said that the case had been “[tjhrown out or SOL’d.”

During closing argument the prosecutor referred to the cross-examination of Mackie and the testimony of Officer Daluga in rebuttal. She argued that “Mary Mackie has [a] very selective memory.”

The defendant maintains that the cross-examination of Mackie, the rebuttal testimony of Daluga and the State’s argument constituted reversible error.

The supreme court has spoken on this issue on a number of occasions. In People v. Hermens (1955), 5 Ill. 2d 277, 287, 125 N.E.2d 500, 505, the supreme court said that “ ‘[N]either on cross-examination nor in rebuttal of proof of good character can particular acts of misconduct be shown.’ ” The court quoted from People v. Page (1937), 365 Ill. 524, 528, 6 N.E.2d 845.

In People v. Greeley (1958), 14 Ill. 2d 428, 432, 152 N.E.2d 825, 827, the supreme court, in citing People v. Hermens, said:

“[W]e have consistently held it improper to permit a character witness to be cross-examined as to his own knowledge of particular acts of misconduct.”

It is clear to us that the cross-examination of Mackie violated the rule.

In both Hermens and Greeley, the supreme court reversed convictions because of the improper cross-examination of a character witness. Greeley is particularly significant because the supreme court rejected the State’s contention that the error was harmless. We do so also in this case. The State’s case is far from overwhelming and depends entirely on the credibility of its witnesses. Similarly, the defendant’s case depends on the credibility of his witnesses, including the defendant himself. Proof that an important witness like Mackie had previously alleged that the defendant threatened to use a gun on Mackie and had previously assaulted her causing her to file complaints against him was highly prejudicial and deprived the defendant of a fair trial.

The State cites People v. Lynch (1984), 104 Ill. 2d 194, 470 N.E.2d 1018; People v. Harris (1992), 224 Ill. App. 3d 649, 587 N.E.2d 47; People v. Devine (1990), 199 Ill. App. 3d 1032, 557 N.E.2d 953; and People v. Randle (1986), 147 Ill. App. 3d 621, 498 N.E.2d 732. None of those cases supports the State’s position.

In Lynch, the supreme court held that where self-defense is raised in a murder prosecution, evidence that the victim had been convicted of battery three times was admissible. In Harris, the appellate court reversed the defendant’s conviction of aggravated battery because the State introduced evidence that the defendant, who claimed self-defense, had previously been convicted of battery and unlawful use of weapons. The appellate court rejected the State’s claim that the defendant had opened the door for the introduction of convictions by introducing evidence of his own good character and the violent character of the victim. The State never contended that something other than convictions could be admitted. In Devine the appellate court upheld the admission of two previous convictions for battery by the defendant, who was charged with murder. The defendant introduced evidence that the deceased carried a pistol and had told the defendant that she once shot at an old boyfriend. He also testified that he was a peaceful person. The court held that the defendant had opened the door for the introduction of the evidence by introducing evidence of the deceased’s previous misdemeanor conviction for unlawful use of weapons and other “alleged acts of violence in order to establish that she had a violent character.” (Devine, 199 Ill. App. 3d at 1037.) In Randle, the appellate court held that the State was improperly permitted to show that a defense witness, not the defendant, had previously been convicted of a misdemeanor battery and aggravated assault. The court concluded that the error was harmless. We repeat that none of the cases cited by the State supports its position.

We conclude that, considering the nature of the evidence, the improper introduction of a previous complaint against the defendant for battery by Mackie and the threatened use of a gun against Mackie constituted prejudicial error and requires a new trial.

In view of our conclusion, it is unnecessary that we discuss at length the defendant’s other claim that he was improperly restricted from submitting additional testimony on his church attendance and membership in the Masonic lodge. Suffice it to say that we find no error in the limitations the judge placed on this evidence; the ruling was within the sound discretion of the trial judge.

For these reasons, the judgment of the circuit court of Cook County is reversed and the cause remanded for a new trial.

Judgment reversed and remanded.

McNAMARA, P.J., and GIANNIS, J., concur.


text:
    THE CITY OF CHICAGO, Plaintiff, v. IAN KIDEYS et al., Defendants-Appellants (Darlena Williams Burnett, Receiver-Appellee).
    First District (6th Division)
    No. 1 — 92—0402
    Opinion filed May 7, 1993.

      Baker & McKenzie, of Chicago (Sidney M. Kaplan and Victor M. Grimm, of counsel), for appellant Chrysler First Business Credit Corporation.
    No brief filed for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The City of Chicago (the City) filed an action against Ian Kideys, the owner of 4006 West Potomac in Chicago (the property), and his mortgagee, Chrysler First Business Credit Corporation (Chrysler), to enforce the municipal building code. The court appointed a receiver, Darlena Williams Burnett, and she petitioned the court for fees and expenses. The trial judge found Chrysler personally liable for Burnett’s fees and expenses, and entered a judgment against Chrysler for $4,914.70. Chrysler does not dispute the amount of fees and expenses charged or the fact that Burnett is entitled to be paid but asserts that it cannot be held personally liable.

On June 6, 1991, the City filed a complaint against Kideys, Chrysler, and several other parties not relevant to this appeal. This complaint alleged many building code violations which the City asserted made the property unsafe for the tenants still living there and dangerous to the community. Citing sections 11 — 31—1 and 11— 31 — 2 of the Illinois Municipal Code (Ill. Rev. Stat. 1991, ch. 24, pars. 11 — 31—1, 11 — 31—2), the City requested the imposition of fines against Kideys, injunctive relief requiring Kideys to correct the multiple building code violations, and the appointment of a receiver for the property “with the full powers of receivership including the right to issue and sell receivers certificates.” Later in the trial court proceedings, the attorney for the City indicated that Kideys was “absent from the state.”

On July 12, 1991, Chrysler moved for a protective order. The motion asserts that Chrysler neither owns nor controls the property, but has a recorded mortgage on the property. Although Chrysler never filed any motion requesting possession or attempting to initiate a foreclosure and asserts that it never requested possession in any manner, on November 20 or 21, 1991, the trial judge entered an order giving Chrysler immediate possession of the property. The order was prepared by the City’s attorney, was signed by the judge, and was stamped with the judge’s stamp November 21, 1991. It states that a hearing regarding this order was held November 20, 1991. There is no transcript of the November 20 hearing in the record.

On November 21, 1991, Chrysler orally requested that a receiver be appointed for the property and named a particular person it wanted to serve as receiver. This motion was denied, and the trial judge instead appointed Burnett. Chrysler contends that it objected to Burnett’s appointment, but has not placed a transcript of the November 21 hearing in the record. In the order appointing a receiver, Burnett was authorized to issue receiver’s certificates for $2,000. Chrysler agreed to and did purchase these certificates.

Burnett filed a preliminary report on December 3, 1991, outlining the actions she had taken regarding the property and recommending that the receivership continue. On December 6, she filed an interim report. She had taken extensive action to clean the building, and had used all of the $2,000 as well as $994.70 of her own funds to pay for the removal of tenants and the cleaning and boarding up of the building. The report explains that as of December 5, 1991, the building was vacant, locked, and boarded up, no longer causing any health hazard. Burnett also filed a detailed listing of the time and money she had spent securing the building. At the end of the report, she requested an order directing “the defendant” to reimburse her $944.70. Chrysler does not dispute that Burnett spent the $2,000 she received for the receiver’s certificates on expenses.

On December 9 or 10, 1991, the trial judge entered an order, prepared by the City, granting Burnett leave to file additional receiver’s certificates and giving Chrysler time to answer Burnett’s receiver’s certificates request. The order lists the hearing date as December 9, but is stamped December 10, 1991, with the judge’s stamp.

On December 10, 1991, Burnett’s attorney filed his appearance and filed Burnett’s petition for “Receiver’s Fees.” This petition requests reimbursement of the $994.70 plus fees for the 53 hours she expended and the hours her attorney expended, for a total of $4,914.70. The petition does not mention receiver’s certificates. Chrysler answered this petition on December 18, 1991, arguing that Burnett was indeed entitled to $4,914.70, and could secure a lien against the property for this amount under section 11 — 31—2 (Ill. Rev. Stat. 1991, ch. 24, par. 11 — 31—2), but could not hold Chrysler personally liable for the amount.

Also on December 18, the trial judge held a hearing on Burnett’s petition. Chrysler’s attorneys argued that they were not trying to keep Burnett from receiving compensation, but were “just asking for what the statute allows.” The judge explained that Burnett did “an amazing job” by securing the building in only 10 days, and that her “extraordinary efforts” saved Chrysler money and protected its interest. He stated that, when Chrysler asked for appointment of its chosen receiver, it was invoking the court’s equitable powers and therefore must be ready to do equity itself. The judge noted, “equity has been given to Chrysler” and found “[its] actions to be somewhat unusual when [it] asked for an appointment of a receiver to do a specific job [but] *** expect[s] someone to work without fees.” He ordered Chrysler to pay Burnett $4,914.70.

Chrysler filed its notice of appeal and filed a brief in this court. Burnett has not filed a brief or an appearance, however. We gave her until September 9, 1992, to file a brief, and ordered that we would decide the case without oral argument and on the appellant’s brief alone if she did not do so. She did not subsequently file either an appearance or a brief.

Although no appellee’s brief has been filed, we are not precluded from reviewing the case. Due to the importance and uniqueness of the issue presented, we elect to consider this case on the merits. See City of Springfield, v. Ushman (1979), 71 Ill. App. 3d 112, 114, 388 N.E.2d 1357.

Chrysler argues that a receiver appointed in a building code violation case must look to the rents or other income from the property or must request authorization to issue receiver’s certificates to cover his fees and expenses. Support for this argument is found in section 11 — 31—2' of the Municipal Code (Ill. Rev. Stat. 1991, ch. 24, par. 11 — 31—2). This section provides that, if a judge orders the appointment of a receiver for a building, “such receiver may use the rents and issues of such property toward maintenance, repair and rehabilitation of the property *** and the court may further authorize the receiver to recover the cost of such maintenance *** by the issuance and sale of notes or receiver’s certificates.” (Ill. Rev. Stat. 1991, ch. 24, par. 11 — 31—2.) Further, “such notes or certificates *** shall be freely transferable, and when sold or transferred by the receiver *** shall be a first lien upon the real estate and the rents and issues thereof, and shall be superior to *** all prior existing liens and encumbrances, except taxes.” (Ill. Rev. Stat. 1991, ch. 24, par. 11 — 31—2.) Chrysler asks us to interpret this statute as precluding the imposition of personal liability on mortgagees for receiver’s expenses. The interpretation of the statute regarding mortgagee personal liability presents a question of first impression.

Section 11 — 31—2 was amended in 1965 to allow for receiver’s liens to have priority over other nontax liens. Although there is little case law construing this section, its constitutionality was discussed in Community Renewal Foundation, Inc. v. Chicago Title & Trust Co. (1970), 44 Ill. 2d 284, 255 N.E.2d 908. In Community Renewal, a potential receiver’s certificates purchaser argued that the certificates could not gain priority over existing liens without unconstitutionally impairing the obligation of contracts. The supreme court disagreed; it held that section 11 — 31—2 was a valid exercise of the police power. The Community Renewal court explained the need for suitable housing in cities, and determined that the legislature intended to encourage rehabilitation of slum dwellings by allowing a receiver to finance such rehabilitation with receiver’s certificates. The court explained, “[t]he imposition of a first lien on the equity of the real estate impresses us as being a reasonable means to make the certificates marketable and rehabilitation of concerned housing feasible.” (Community Renewal, 44 Ill. 2d at 293.) The court recognized that section 11 — 31—2 subordinates a mortgagee’s rights by making its lien lower in priority than a receiver’s lien, but explained that this interference “may not be said to be so unreasonable or oppressive” when balanced against the great need to make the receiver’s certificates marketable. Community Renewal, 44 Ill. 2d at 292.

We find that the statute allows Burnett to recover her costs and fees from rent monies or from receiver’s liens, if authorized. Since there obviously are no rent payments present to offset Burnett’s expenses, consistent with Community Renewal she is welcome to request the right to issue receiver’s certificates that will subordinate Chrysler’s lien. In fact, the trial judge apparently gave Burnett this authorization in his December 9 or 10 order granting her leave to file receiver’s certificates. Nonetheless, she did not issue those additional certificates, but instead obtained a judgment against Chrysler.

We do not believe that the statute allows the imposition of personal liability under these circumstances. (See generally Village of Arlington Heights v. American National Bank & Trust Co. (1979), 72 Ill. App. 3d 744, 391 N.E.2d 108 (refusing to allow a receiver to take action not authorized by section 11 — 31—2).) Reading the plain and unambiguous language of section 11 — 31—2, we refuse to infer a legislative intent to hold mortgagees personally liable. (See Illinois Housing Development Authority v. La Salle National Bank (1985), 139 Ill. App. 3d 985, 487 N.E.2d 772.) In section 11— 31 — 1, involving demolition of slum buildings, the legislature specifically provided that building owners may be personally liable, under certain circumstances, for demolition costs. (Ill. Rev. Stat. 1991, ch. 24, par. 11 — 31—1.) No such provision authorizing personal liability of any party appears in section 11 — 31—2. The intent of the legislature in enacting and amending section 11 — 31—2, as outlined in Community Renewal, was to make receiver’s certificates more marketable and thus increase urban renewal. This intent is satisfied by the priority status given the receiver’s certificate liens, and when balanced against mortgagee rights, this result is constitutional. When a mortgagee becomes personally liable for the receiver’s expenses, however, the infringement on its rights is much greater than that envisioned by the legislature or authorized in Community Renewal. Therefore, we hold that a mortgagee cannot be held personally liable for receiver’s expenses under section 11 — 31—2.

Nonetheless, there are common law rules holding parties such as mortgagees personally liable for receiver’s expenses under certain circumstances, and the trial judge may have been applying these rules when he ordered Chrysler to pay for Burnett’s services.

The general common law rule is that a receiver must look to the income or res of the property for his expenses and fees. This rule was outlined by the United States Supreme Court in Atlantic Trust Co. v. Chapman (1908), 208 U.S. 360, 52 L. Ed. 528, 28 S. Ct. 406. In Atlantic Trust, a mortgagee requested the appointment of a receiver to run a mortgaged company. The court of appeals required the mortgagee to pay the receiver’s expenses and fees, because the money from the foreclosure of the company was inadequate to cover his expenses. The Supreme Court reversed, holding that the mortgagee could not be personally liable under these circumstances. The Court recognized that where a receiver is appointed through fraud or acts on false assurances, the parties responsible may be personally liable for the receiver’s expenses. In this case, however, the general rule that “[t]he liabilities which [a receiver] incurs are liabilities chargeable upon the property *** and not liabilities of the parties” applied where there was no fraud or unfair action on the part of the mortgagee. (Atlantic Trust, 208 U.S. at 375, 52 L. Ed. at 535, 28 S. Ct. at 411.) The Atlantic Trust Court explained: “The mere inadequacy of the property or fund to meet such [receiver] expenses constitutes in itself no reason why liability should be fastened upon the [mortgagee], who has been guilty of no irregularity.” 208 U.S. at 376, 52 L. Ed. at 535, 28 S. Ct. at 411.

The Illinois Appellate Court reached the same conclusion in 1906, while the court of appeals’ opinion in Atlantic Trust was on appeal to the Supreme Court. The Illinois court, in McLean v. Gillespie (1906), 130 Ill. App. 356, chose not to follow the Atlantic Trust court of appeals. The McLean court refused to hold a mortgagee personally liable for receiver’s expenses where the funds from foreclosure of the mortgage were insufficient to pay the receiver’s costs and fees. The court explained that receivers have the right to “look to the income first, and second to the res,” and further can hold the party who requested their appointment personally liable if that party acted in bad faith by requesting their services. In the absence of some bad faith, however, to hold the mortgagee personally liable “would be unjust, inequitable and unjustifiable either in principle or by legal authority.” (McLean, 130 Ill. App. at 368.) This general rule was applied more recently in Rosenblatt v. Michigan Avenue National Bank (1979), 70 Ill. App. 3d 1039, 389 N.E.2d 182.

In light of this precedent, we hold that the judgment against Chrysler must be reversed in the absence of any evidence showing bad faith on the part of Chrysler. Chrysler maintains that it did object to the appointment of Burnett and that it did not request or take possession of the property. Whether it did object and did take possession of the property are not relevant to the issue before us. Any failure to object to Burnett’s appointment or assumption of possession would not constitute bad faith on the part of Chrysler.

The trial judge stressed the excellent job done by Burnett and the benefit that her services provided to Chrysler. Nonetheless, under Atlantic Trust and McLean, her recourse is through the property itself. There is no evidence here, in contrast to Atlantic Trust and McLean, that the proceeds from a foreclosure would be insufficient to cover Burnett’s expenses. Yet, the inadequacy of the res in those cases was not enough to hold mortgagees personally liable. Further, there is no evidence of bad faith or fraud here. Thus, Burnett’s claim for fees does not fit into any exception to the common law rule that a receiver must look to the property for payment.

We judge that the proper way for Burnett to be compensated for her services is either to issue receiver’s certificates under section 11— 31 — 2, or to place a lien against the property under Illinois common law. She may not obtain reimbursement or payment simply by requesting a personal judgment against Chrysler. For these reasons, we hold that the judge erred in entering judgment against Chrysler.

The judgment of the circuit court is reversed.

Judgment reversed.

McNAMARA, P.J., and GIANNIS, J., concur.