author: JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES COLEMAN, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 90—0971
    Opinion filed June 4, 1993.

      Rita A. Fry, Public Defender, of Chicago (Alison Edwards, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Linda Woloshin, and Ann L. Benedek, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

The defendant, Charles Coleman, was indicted with his brother, Maurice Coleman, and Willie Powell for the first degree murder and armed robbery of Willie Melson. The defendant waived a jury and was tried alone. Maurice Coleman testified for the State. The defendant was found guilty of first degree murder and armed robbery and sentenced to 60 years’ imprisonment for murder and 30 years for armed robbery, with the sentences to run concurrently. The defendant contends that procedural or evidentiary errors deprived him of a fair trial; he does not contend that the evidence was insufficient to establish his guilt beyond a reasonable doubt.

In August 1988, the defendant was living with Elizabeth Stampley in her apartment on the second floor of a building at 4810 South Michigan in Chicago. Seventy-year-old Willie Melson lived in the third-floor apartment directly above Stampley’s apartment. On August 10, Melson’s decomposed body was found in his apartment. Under a sheet that covered the body, police officer Owens found a butcher knife and a fork sticking out of Melson’s chest. Owens also found $200 in Melson’s pants pocket and a bullet near Melson’s body. An autopsy disclosed a cooking fork in Melson’s right chest, a carving knife in his left chest, nine stab wounds in his chest; neck and back and a gunshot wound in the back of the head. The decomposed condition of the. body was consistent with a July 29, 1988, date of death, but the exact date of death could not be determined. A “deformed small caliber bullet” was recovered from the autopsy cart at the time of the autopsy; the bullet was beneath the head and upper neck of Melson.

Willie Powell was arrested on September 13, 1988, and implicated the defendant and his brother. Powell did not testify at the trial, but his statement to the police is involved in one of the errors assigned by the defendant and will be discussed in detail later.

The defendant was also arrested on September 13, 1988, but no statement was taken from him. On December 2, 1988, Maurice Coleman was arrested. He also gave a statement to the police that will be discussed later.

Brian Melson, the son of the deceased and a Chicago police officer, last saw his father in early June 1988. At that time he visited his father at his apartment, where he had lived alone for the past 10 years. During that period, Brian had visited his father at the apartment on 10 to 12 occasions; most of the time his father came over to Brian’s house.

Brian testified that his father had been employed by Walgreens for 18 years and was paid by check. His father had cashed his checks “for years” at a currency exchange on 47th Street and kept his cash either in his wallet or in a shoe at home. His father had recently received vacation checks totalling over $2,000. On his last visit to the apartment, Brian saw Budweiser beer, which his father bought by the case, and Scotch whiskey. His father kept a black .25 automatic handgun with a woodgrain finish handle at home; he sometimes carried it with him.

Maurice Coleman was living with his sister at 4803 South Wabash on July 29, 1988. He testified that at one o’clock that afternoon, the defendant, his brother, came through the back door of Maurice’s home. The defendant’s “left baby finger” was bleeding; he was carrying a 12-pack of Budweiser, had a bottle of Scotch in his hand and $60. The defendant also had a .25 automatic handgun with a brown handle. The defendant told Maurice that he had stuck someone up on 51st and Wentworth. After he and the defendant talked about going to the hospital, Maurice called an ambulance, but the defendant decided to go to the hospital with Maurice in his car. Maurice and the defendant first went to visit a friend named Rodney and purchased some heroin. After “snorting” the heroin, the defendant and Maurice were dropped off by Rodney at 59th and Ashland. The defendant asked Maurice what Maurice would say if the defendant told him that he killed someone. Maurice did not respond but just shrugged his shoulders.

They both went to Bernard Mitchell Hospital, but after waiting two hours they left without the defendant receiving any stitches. On the way back to their sister’s house, the defendant told Maurice that if there were not any police around they would go up to the “apartment.” In the apartment, which was Melson’s, Maurice saw the deceased on the floor with cooking utensils sticking, out of his chest. The defendant went into the deceased’s pockets and removed about $500. Maurice also reached into the deceased’s back pocket and took his wallet. They returned to their sister’s house, and Maurice gave his sister some rent money.

Maurice and the defendant then left their sister’s house to visit Edward Gibson; they purchased some drugs; spent the evening with Gibson; and returned to their sister’s house. On the following day, Maurice and the defendant went to 100th Street and sold the gun to a “friend.” They made contact with that “friend,” to whom they sold the gun, through the friend’s brother, whose name Maurice did not recall. He remembered that the brother lived at 64th and Eberhart.

Maurice was arrested on December 2, 1988, and charged with murder and armed robbery. On the same day, he made a statement to to an assistant State’s Attorney in which he implicated the defendant.

Edward Gibson testified that the Coleman brothers came to his place of work and the three of them went to 50th and Cottage Grove, where the defendant and Maurice purchased heroin. Gibson noted a bandage on the defendant’s right little finger. He saw that the defendant had either $1,100 or $1,300 in cash with him and a small caliber revolver with a brown handle. When Gibson asked the defendant about purchasing the gun, the defendant responded, “You don’t want this one. *** That was a throw-away piece.” The defendant told Gibson that he got the money from an old man he saw coming out of a currency exchange on 47th Street; he followed the man into an alley and strong-armed him and took his money. When Gibson asked about the cut on the defendant’s hand, the defendant said that he got it because the old man had a knife and the defendant had to wrestle it out of the old man’s hands.

Ethel Stampley testified that she had been living with the defendant in the second-floor apartment at 4810 South Michigan. The defendant told her that his bleeding finger resulted from cutting cheese with the butcher knife that Stampley had received as a gift. The defendant told her that he threw the knife away after he had cut himself. She identified the knife that had been taken from the deceased’s body as her missing butcher knife.

The defendant first contends that the State knowingly used perjured testimony by calling Maurice Coleman as a witness. The defendant filed a pretrial motion to bar the State from calling either Maurice Coleman or Willie Powell as witnesses. The motion alleged that the State had engaged in plea bargaining with Maurice Coleman and Powell and that Powell had accepted an offer of three years’ imprisonment in return for his testimony against the defendant. Attached to the motion were the statement given to Assistant State’s Attorney Tyrell by Maurice Coleman and the statement given by Powell to Assistant State’s Attorney William McGarr.

Maurice Coleman’s statement was, in substance, the same as his subsequent testimony but contained the following additional information: On the way to the hospital, the defendant told Maurice that he had killed someone. When the defendant went to “rip off” the old man, he took a knife with him. The old man lived upstairs from the defendant. When the defendant “stuck up” the old man, the old man started struggling and got the knife away. The defendant took a kitchen fork and a knife and stabbed the old man. The defendant then took the old man’s money and liquor and shot him.

Willie Powell was arrested on September 13, 1988, and made a statement in which he said that sometime in early August the defendant asked him to knock on the deceased’s door and ask if the deceased wanted Powell to clean his house or to shop for him. Powell was to see if the deceased “had a big wad.” Powell did knock on the deceased’s door, but he was not home. On the following day he saw the deceased arrive home, and he told the defendant. The defendant picked up a gun from a table and whispered something to his brother, Maurice. The defendant and Maurice went upstairs, and Powell sat at the table and waited. He heard Willie Melson “holler,” and later he heard two or three shots. A minute later he heard footsteps running downstairs and out the building. Powell left the building, returned and went up to Melson’s apartment. The door was slightly open, and Powell was able to see Melson’s body lying in the apartment. Powell left the building and never returned.

At the hearing in support of the defendant’s motion in limine, Ronald Babb testified that he was an attorney appointed to represent Willie Powell. Babb testified that, on his advice, Powell accepted the State’s offer in exchange for testimony consistent with his statement. He was not permitted to testify to the specific terms of the offer, apparently on the supposed ground that any conversation between Babb and the assistant State’s Attorney was barred by the attorney-client relationship. No issue is raised of this ruling. On cross-examination, Babb said that the offer was extended to his client “in exchange for his truthful testimony.” He also said that he did not know whether Powell’s statement was true.

Mary Lambert, Maurice Coleman’s attorney, testified that two offers had been made to Maurice in exchange for his testimony. Maurice accepted the second offer, which was for a shorter period of recommended imprisonment. Again the State’s objection to the terms of the specific offer was sustained, again apparently on the ground that the conversation between the assistant State’s Attorney and the defendant’s attorney was protected by the attorney-client relationship between Maurice Coleman and Lambert. Ms. Lambert also testified on direct examination that the offer was made in exchange for Maurice Coleman’s testimony “consistent with” his previous statement. On cross-examination she testified that it was her understanding that the offer was in exchange for Maurice Coleman’s “truthful testimony.” She also testified that she did not know whether Maurice Coleman’s statement was true.

The defendant relies upon Miller v. Pate (1967), 386 U.S. 1, 17 L. Ed. 2d 690, 87 S. Ct. 785, and Napue v. Illinois (1959), 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173. Neither case supports the defendant’s argument. In Miller, a key piece of evidence was a pair of shorts. The trial judge sustained the State’s objection to the defendant’s pretrial motion to permit a scientific examination , of all physical evidence. A chemist testified for the State that the shorts were stained by blood type A. The deceased had type A blood. At the time the chemist testified, the prosecutor knew that the stains were paint, not blood. In reversing the conviction, the supreme court noted that the “prosecution [had] deliberately misrepresented the truth.” Miller, 386 U.S. at 6, 17 L. Ed. 2d at 694, 87 S. Ct. at 788.

In Napue, cited in Miller, on cross-examination, a prosecution accomplice witness testified that he had not been promised anything for his testimony. On redirect examination the prosecutor specifically asked whether he had made any promises to the witness, and the witness said that he had not. It was later conceded that that answer was false and was known to be false by the prosecutor who asked the question.

It is safe to say that the evil in Miller and Napue lay in the deliberate misrepresentation by the prosecutors or, at least, the suppression of the truth by the prosecutors. The procedure followed by the State in this case was unusual, but there was no suppression of the truth and there were no misrepresentations by the prosecutors. We agree with the defendant’s contention that both Maurice and Powell could not have been telling the truth, but that fact is not relevant to the issue before us. We also agree with the State that, in the face of conflicting witnesses’ statements, the State may frame its own theory in the case, choose to call its witnesses and is not required to present every witness. (People v. Beacham (1977), 50 Ill. App. 3d 695, 365 N.E.2d 737.) The State may also advance alternative theories of guilt. (Cf. People v. Bracey (1969), 110 Ill. App. 2d 329, 249 N.E.2d 224 (principal State witness identified defendant as the shooter in murder prosecution; appellate court affirmed trial judge’s finding of guilt on accountability theory).) The State, therefore, was not required to call Powell, and it could not prevent the defendant from calling him if he was willing to testify for the defendant. We can understand why the defendant would not call Powell, even if he were willing to testify. His story would have contradicted Maurice but would also have been highly damaging to the defendant.

The defendant next contends that an ex parte conference between Maurice Coleman and his private attorney during a recess denied the defendant a fair trial.

Maurice testified that, in exchange “for his truthful testimony,” •the prosecutors would file a charge of concealment of a homicidal death and recommend a sentence of imprisonment of two years. He had been convicted of indecent liberties in 1984.

Maurice then gave the testimony which we have previously recited. The prosecutor attempted to question Maurice about conversations he had had with the defendant about the robbery and the murder. A defense objection that a question was leading was sustained. Maurice was then asked a number of times if he had had conversations with the defendant, and he said that he had not. The prosecutor was then permitted to bring out from Maurice the contents of the statement he had made to Assistant State’s Attorney Tyrell, in which he said that the defendant had told him that he had shot the deceased and stabbed him with a knife he had taken from his apartment. The prosecutor showed the defendant the four-page statement that he had given to Tyrell. The defendant’s attorney objected, not on the basis of hearsay, but rather that the questions were leading or that the answers were not impeaching. The only reasonable inference that may be drawn from what then transpired is that Maurice’s denial that the defendant told him that he had shot and stabbed the deceased had taken the prosecutor and the defendant’s attorney by surprise. We judge that the State was trying either to refresh Maurice’s recollection, or “to awaken his conscience.” See People v. Michaels (1929), 335 Ill. 590, 592, 167 N.E. 857, 858; 134 Ill. 2d R. 238.

When the judge said that he would have a short recess, Mr. Gevirtz, who then represented Maurice Coleman, asked if he would “have a moment to confer with [his] client.” When the defendant’s attorney objected, the court said:

“Mr. Gevirtz is not here as a representative of the State. He is here as an attorney representing the witness in this matter. And I believe he is well within his right to ask to confer with him.”

After a recess, the following occurred:

“MR. GEVIRTZ: I have talked to Mr. Coleman a number of times, and there are portions of this testimony that are not clear as to whether or not Mr. Coleman understood, based on conversations he had had with me and with Miss Shines [the assistant State’s Attorney] earlier today. If the Court would permit me to just ask him that question, if he understood specifically the difference between the wording of certain of the questions here now—
STATE’S ATTORNEY: Judge, I would object to that. Counsel is here as a lawyer for the witness. He is neither a proponent or opponent of anyone on trial here. I don’t think that he has any standing at all to put questions to the witness.
THE JUDGE: I agree.
DEFENDANT’S ATTORNEY: Judge, just so the record is clear, I want it to reflect that on behalf of Charles Coleman, the defendant in this case, Mr. Sarley [another defense attorney] objected to Your Honor’s ruling allowing Mr. Gevirtz to confer with him in the first place. I would point out, as an officer of the court, that the conference did occur; it occurred over our objection in the jury room of this courtroom. In addition to that, that the State’s Attorneys, one of the State’s Attorneys involved in the prosecution of this case, was also called into the jury room and conferred with Mr. Gevirtz and with the witness, which I found highly objectionable.”

Ms. Gordon, an assistant State’s Attorney, denied that she was in the room with Gevirtz and the witness in which there were “conversations going on.” She said that Mr. Gevirtz called her to the room and asked her a question and she “answered his question” and then left. The defendant’s attorney accepted Mr. Gevirtz’ assertion that Ms. Gordon’s statement was correct. The record, therefore, shows that no prosecutor had a conversation with Maurice Coleman during the conference.

Maurice Coleman was then examined further by the judge as well as the assistant State’s Attorney. His testimony, which is confusing, may be interpreted at one point as a denial that he told Assistant State’s Attorney Tyrell that the defendant admitted to him that he had shot and stabbed the deceased; at another point that Maurice was confused when Tyrell questioned him; or that Maurice was confused when he answered questions on direct examination in which he said that the defendant had made those statements to him. Later, on cross-examination, Maurice expressly denied telling the assistant State’s Attorney that his brother had told him that he shot and stabbed the deceased. One thing is clear from the last part of Maurice’s testimony and that is that he was denying that the defendant told him that he had stabbed the deceased with a knife and a fork and that he had shot the deceased.

The State does not attempt to justify the judge’s ruling permitting Maurice’s attorney the “right” to confer with him during his examination. We have found no case supporting a rule that an attorney has an absolute “right” to confer with his client while the client is testifying. The facts of this case are not to be confused with those cases involving the right of a defendant to confer with his attorney before examination has been completed. (See, e.g., People v. Noble (1969), 42 Ill. 2d 425, 248 N.E.2d 96.) In People v. Pendleton (1979), 75 Ill. App. 3d 580, 248 N.E.2d 96, the appellate court reversed a conviction on double jeopardy grounds where a mistrial had previously been declared because the prosecutors, during a recess, improperly conferred with a complaining witness about the witness’ unfinished testimony. The appellate court observed:

“As a general rule, an attorney may also consult with a witness, regarding his testimony, even after the witness is placed on the stand, provided a legitimate need arises for such a discussion. [Citation.] The attorney, for example, may require additional information made relevant by the days’ testimony, or he may find it necessary to inquire along lines not fully explored earlier. However, since such discussions (after a witness has taken the stand and is still subject to examination) pose a tantalizing potential for misconduct, they are to be strictly scrutinized.” (Emphasis in original.) (Pendleton, 75 Ill. App. 3d at 594-95.)

Thus, even the assistant State’s Attorney in the case before us would not have had an absolute right to confer with Maurice Coleman during his examination.

While we appreciate Mr. Gevirtz’ concern that his client’s testimony may have jeopardized the plea agreement, we wish to make our position clear that we withhold a blanket approval of an attorney’s “right” to confer with his client during the client’s examination. There may be circumstances where permitting an attorney to intercede during the examination of his client and to confer with his client would be reversible error.

In any event, we also find that the record does not support a conclusion that the prosecutor “coached” Maurice Coleman during the recess. However, the record would have been better served if the prosecutor voluntarily, or at the request of the defendant’s attorney, or at the direction of the judge, had informed the judge of what question was asked of her by Mr. Gevirtz and what her answer was. The principal reason we find no reversible error in the procedure followed is the fact that the record shows that no prejudice inured to the defendant because of what transpired between Mr. Gevirtz, the prosecutor and Maurice Coleman. Indeed, Maurice Coleman’s testimony after the conference was damaging to his credibility and was a denial of evidence that would have been harmful to the defendant.

The defendant’s last claim of error centers on the testimony of Brian Melson that his father cashed his checks at a particular currency exchange; had cashed his checks there “for years”; and received vacation checks that exceeded $2,000. We find no reversible error in Brian Melson’s testimony. The defendant made a general objection to the question of where the deceased cashed his checks. The judge overruled the objection and said, “He can answer, if he knows.” The following occurred:

“Q. And how long had he been cashing his checks at that currency exchange, if you can tell us?
A. For years.
DEFENSE ATTORNEY: Objection.
THE JUDGE: Overruled.
* * *
Q. Where did your father, sir, keep the money from the checks that he cashed at the currency exchange?
DEFENDANT’S ATTORNEY: Objection.
THE JUDGE: Overruled.
WITNESS: He kept it in his house.
* * *
Q. And did your father have any type of weapons in his apartment, if you know?
A. Yes. He had several knives and he had—
DEFENDANT’S ATTORNEY: Objection, Your Honor; foundation.
THE JUDGE: Sustained.
Q. Had you ever seen any knives in your father’s apartment?
A. Yes.
Q. Can you describe those knives that you saw for us, please.
A. He had several pocket knives.” (Emphasis added.)

The witness then described the automatic handgun that his father kept in his apartment.

We judge that the defendant’s general objection to the testimony of which he now complains was insufficient. He did not object to the initial questions on the ground of a lack of foundation. His later objection on the ground of lack of foundation alerted the State, and the State did provide the proper foundation. Moreover, Melson’s answers made after the cautionary remarks of the judge, “if he knows,” and of the prosecutor, “if you can tell us,” lead to the reasonable inference that the witness was testifying to matters which were within his personal knowledge and were not based on hearsay.

The defendant also assigns as error other testimony of the witness that his father kept the cash from his checks on his person or in a shoe at his apartment; that he drank Budweiser beer and Scotch; and took vacations in August. No objection was made to that testimony. Consequently, any claim of error now is waived. (People v. Gacho (1988), 122 Ill. 2d 221, 522 N.E.2d 1146.) Again, we believe that the record shows that that testimony also was based on the personal knowledge of the witness. Finally, we disagree with the defendant’s claim that the evidence was not relevant.

Because we find that the defendant has failed to establish any prejudicial error, the judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA, P.J., and RAKOWSKI, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GORDON

license: Public Domain

text:
    THE PEOPLE ex rel. GEORGE PETERS, Chairman of the Illinois Capital Development Board, Plaintiff-Appellant, v. MURPHY-KNIGHT et al., Defendants (Chester Jensen and Company, Inc., Defendant-Appellee).
    First District (5th Division)
    No. 1 — 90—1982
    Opinion filed June 4, 1993.

      Roland W. Burris, Attorney General, of Springfield (James Carroll, Deborah Gibula, and Brian Farley, Assistant Attorneys General, of Chicago, of counsel), for appellant.
    Jenner & Block, of Chicago (Keith Bode, Joseph Bisceglia, and Gabrielle Sigel, of counsel), for appellee.
   PRESIDING JUSTICE GORDON

delivered the opinion of the court:

This appeal arises from the dismissal pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2— 615) of count X of plaintiff’s complaint for damages arising from the design, manufacture and installation of the heating, ventilation and air conditioning (HVAC) system in the State of Illinois Center (SOIC) in Chicago.

The first nine counts of plaintiff’s complaint, which are incorporated by reference into count X, seek recovery against the architects, engineers, construction managers, the general contractor and several subcontractors and materialmen, under the theories of professional malpractice, breach of contract, and breach of express and implied warranties. Count X seeks recovery under a theory of fraud from Chester-Jensen, which supplied, through a subcontractor, thermal banks, or ice builders, for the HVAC system.

Among the allegations from counts I through IX incorporated into count X are the following. In March 1981, the Capital Development Board (hereafter CDB) awarded a contract to furnish and install the HVAC system for the SOIC, to Economy Mechanical Industries of Illinois (hereafter EMI), a plumbing, heating and air conditioning contractor. Under the provisions of its contract with CDB, EMI was to furnish eight thermal banks and ancillary equipment meeting the State’s criteria.

On March 30, 1981, Chester-Jensen submitted a proposal to EMI for thermal banks and ancillary equipment for the HVAC system. In a submittal letter accompanying the proposal, James Donovan wrote that he was presenting Chester-Jensen’s “written proposal covering the eight (8) Ice Builders, as called for in the specifications.” The proposal stated:

“We propose to furnish the equipment specified in the following, and further described in the enclosed literature:
Model: XM — 14—14—100, eight (8) required.
Capacity: 100,000 pounds of ice at a 2½ inches ice thickness, (1200 tons latent storage).”

The literature referenced in the proposal was a brochure from Chester-Jensen entitled “Air Agitated Ice Builders” which described the principles underlying the use of ice builders as an economical and efficient method of cooling, and listed various models of ice builders offered by Chester-Jensen. The brochure included a model M — 14—14— 100, but did not list model XM — 14—14—100 as proposed by defendant.

EMI entered into a subcontract agreement with R&D Development Company, Inc. (hereafter R&D), a corporation engaged in the piping, heating, and plumbing business, for the purchase and installation of the thermal banks. EMI issued a purchase order to R&D for the purchase of eight thermal banks and ancillary equipment, and R&D, in turn, purchased the thermal banks from Chester-Jensen. The thermal banks were delivered in the spring of 1982 and installed in the SOIC sometime thereafter.

Tenants began to move into the SOIC in early 1985. That summer and the next, extremely high temperatures caused by “an inadequately designed and defectively installed and constructed air conditioning system” made the building “virtually uninhabitable.” Damages suffered as a result of the high temperatures include the expenditure of at least $10 million on modifications and repairs to the system. Plaintiff also suffered other damages of at least $5 million as a result of the extreme heat in the building, including lost rent from commercial tenants, lost work days from State employees who became ill as a result of the heat, lost productivity from State employees and excessive electrical consumption caused by the widespread use of portable electrical fans by employees and tenants.

In count X, plaintiff alleges that defendant represented in its proposal and March 30, 1981, letter to EMI, that defendant’s equipment was “capable of building one hundred pounds of ice per thermal bank in a uniform thickness of inches along each refrigerant coil, in a period of twelve hours.” These parameters constituted “Performance Specifications” developed by the CDB which proposed equipment was required to meet. Those performance specifications included the following concerning the thermal banks:

“Performance: Each of the 8 thermal banks shall be capable of making 100,000 pounds of ice in 2-½ inch thickness on the coils in 12 hours under the following conditions:
1. Initial water temperature: 42F
2. Refrigerant R-22 with 3:1 overfeed
3. Evaporating temperature: 18F
4. Nominal bank size: 10 feet high, 10 feet wide, 40 feet long.”

Plaintiff further alleged that defendant’s own literature represented that the thermal banks would perform according to the CDB’s performance specifications. The literature included the following:

“STANDARD RATING DATA
1. All ice builders are rated at 1000 pounds of ice per ton of refrigeration with nominal 12 hour building time. This means normal freezing or evaporation rate is 12,000 BTU per hour for 12 hours time to build each 1000 pounds of ice. Evaporation is usually at 20° F (3 psig.) Ice Builder capacity is based on ice thickness.
2. Maximum evaporation rate with agitation is approximately 200% of nominal rating. At maximum evaporation rate normal Ice Builder capacity could be realized in approximately 6 hours.”

Count X further alleged that defendant knew both at the time it made the above representations and when the equipment was delivered that its equipment could not meet the performance specifications set forth by the CDB. Plaintiff alleged that this knowledge is shown by a letter sent by defendant in November 1981 to another contractor concerning thermal banks proposed for a different project. In that letter, defendant wrote, “In our estimation, it is doubtful that you could recover the full complement of the Ice Builder in 12 hours when that full capacity requires a thickness of inches.”

The complaint further alleged that plaintiff was a third-party beneficiary of the contract between EMI and defendant, and that these misrepresentations were made for the purpose of inducing EMI to purchase defendant’s thermal banks. Plaintiff also alleges that it purchased the thermal banks in reliance on defendant’s misrepresentations.

Finally, plaintiff alleged that

“the thermal banks, as installed, did not meet the Performance Specifications *** in numerous ways, which included, but were not limited to the following:
a. The thermal banks were incapable of building 100,000 pounds of ice in a 12 hour time period; and
b. The thermal banks were incapable of building ice in a uniform 2½ inches thickness along the refrigerant coils.”

In addition to the other damages listed above, the complaint sought punitive damages in excess of $5 million on account of Chester-Jensen’s alleged fraud.

The trial court granted Chester-Jensen’s section 2 — 615 motion to dismiss the third amended fraud count and this appeal followed.

Opinion

A motion to dismiss pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) attacks the sufficiency of a complaint and is to be decided solely on the allegations set forth in the complaint. (Disc Jockey Referral Network, Ltd. v. Ameritech Publishing (1992), 230 Ill. App. 3d 908, 596 N.E.2d 4.) The motion admits all facts well pleaded, but conclusory allegations of law or fact are not admitted. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976.) Exhibits attached to the complaint are part of the pleading, and the facts stated in such exhibits are considered as if alleged in the complaint. (Outboard Marine Corp. v. Chisholm & Sons, Inc. (1985), 133 Ill. App. 3d 238, 478 N.E.2d 651.) The complaint should be dismissed only if it appears that plaintiff can prove no set of facts under the pleadings which would entitle him to the relief sought. (Disc Jockey Referral Network, 230 Ill. App. 3d 908, 596 N.E.2d 4.) On review, the question is whether, when viewed in the light most favorable to the plaintiff, the facts alleged in the complaint adequately state a cause of action. (County of Cook v. City of Chicago (1992), 229 Ill. App. 3d 173, 593 N.E.2d 928.) Although plaintiff argues that his complaint adequately alleges the elements of a cause of action in fraud, we disagree only with respect to the element of reliance.

The elements of a cause of action for fraudulent misrepresentation are: “(1) [a] false statement of material fact; (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance.” (Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286, 402 N.E.2d 599.) The facts which constitute an alleged fraud must be pleaded with specificity and particularity, including “what misrepresentations were made, when they were made, who made the misrepresentations and to whom they were made.” (Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 457, 546 N.E.2d 580.) The dispute here centers on the first and fourth elements of the cause of action.

To support an action for fraud, the alleged misrepresentation must be one of fact and not an expression of opinion. (Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 429 N.E.2d 1267; see also Equity Capital Corp. v. Kreider Transportation Service, Inc. (7th Cir. 1992), 967 E2d 249.) Statements regarding future events are considered opinions, not statements of fact. (Madison Associates v. Bass (1987), 158 Ill. App. 3d 526, 511 N.E.2d 690; Gross Valentino Printing Co. v. Clarke (1983), 120 Ill. App. 3d 907, 458 N.E.2d 1027.) “[T]he general rule denies recovery for fraud based on a false representation of intention or future conduct ***.” (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 334, 371 N.E.2d 634; see also West v. Western Casualty & Surety Co. (7th Cir. 1988), 846 F.2d 387, 393 (“A statement that merely expresses an opinion or that relates to future or contingent events, rather than past or present facts, does not constitute an actionable misrepresentation”).) Even a false promise of future conduct with no current intent to fulfil that promise will not constitute fraud. (Ault v. C.C. Services, Inc. (1992), 232 Ill. App. 3d 269, 597 N.E.2d 720 (representations to plaintiff by defendant that another employee would be fired and his accounts reassigned to plaintiff held to be representations of future conduct by defendant and thus not actionable as fraud); Gold v. Vasileff (1987), 160 Ill. App. 3d 125, 513 N.E.2d 446 (representation by defendant attorney that his clients would comply with contract although defendant knew that they would not, not actionable as fraud since it was a representation of events to occur in the future and not one of present fact).) An exception to the general rule exists whereby a false promise as to future circumstances may be actionable if the false statements were part of a fraudulent scheme. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634; Madison Associates v. Bass (1987), 158 Ill. App. 3d 526, 511 N.E.2d 690.) In determining whether a statement is one of fact or of opinion, we look to all the circumstances of the particular case. La Scola v. U S Sprint Communications (7th Cir. 1991), 946 F.2d 559.

In addition, statements which are nothing more than a recommendation of one’s product are not representations of fact, but rather “mere commendation or opinion” and are not actionable as fraud. (Spiegel v. Sharp Electronics Corp. (1984), 125 Ill. App. 3d 897, 902, 466 N.E.2d 1040 (representations that copier would make “picture perfect” copies and “reduce error and paper waste”).) Such statements, as with statements of value made by a seller, are treated as expressions of opinion and, if so understood, may not be the basis of an action for fraud. See Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 429 N.E.2d 1267.

The alleged misrepresentations here were contained in defendant’s proposal and letter submitted to EMI. Plaintiff also alleges that the same misrepresentations were repeated in the brochure provided to EMI along with the proposal. In the letter, defendant wrote that it was presenting its proposal for ice builders “as called for in the specifications.” Under those specifications, the thermal banks were required to be capable of making 100,000 pounds of ice in 2½-inch thickness in 12 hours under certain conditions. The proposal itself described the ice builders as having a capacity of “100,000 pounds of ice at 2½ inch thickness,” but made no reference to the time required to reach that capacity. Plaintiff contends that the statements here concerning the capability of the thermal banks to produce a particular quantity of ice are statements of. existing material fact and thus actionable as fraud. In addition, plaintiff argues, defendant’s representation in its submittal letter that it was proposing ice builders “as called for in the specifications” constitutes a representation of fact that the ice builders are capable of reaching capacity in 12 hours as the specifications required.

Although the alleged representations here relate to the performance of the thermal banks when installed as part of the HVAC system in the SOIC, we are .nevertheless convinced that the representations here should be treated as ones of present fact rather than future performance. Under the allegations of the complaint, the representations concerned a machine of known physical characteristics and its capabilities based upon the application of certain mathematical formulae and laws of physics to those physical properties. While there is a dearth of Illinois case law regarding representations such as those made here, we have found cases articulating this reasoning from other jurisdictions. (See Maxwell Ice Co. v. Brackett, Shaw & Lunt Co. (1921), 80 N.H. 236, 239, 116 A. 34, 36 (“Representations by an expert on power to one not having equal knowledge as to the amount of energy which standard makes of motors and engines will develop, are not future promises, but are statements with reference to known facts based on tests and mathematical computations. Such representations differ materially from ‘sellers’ talk’ or mere opinion expressed to one having equal knowledge or equal opportunities for knowledge”).) The representations at issue here concern the capabilities of a machine which was either in existence at the time the statements were made, or one of a known, specified, and certain type. As such, the statements at issue here must be considered representations of existing fact and thus actionable as fraud. See Bareham & McFarland, Inc. v. Kane (1930), 228 A.D. 396, _, 240 N.Y.S. 123, 127 (representations that heater when installed in home would heat building to 70 degrees in zero weather, that fuel would cost no more $350 per season, and that gas for the pilot light would not exceed $1 per month held to “relate to the inherent capacity, character and quality of the heater, and what it was actually capable of doing” and thus constitute “positive statements of existing facts”); Traylor Engineering & Manufacturing Co. v. National Container Corp. (1949), 45 Del. 143, 70 A.2d 9 (representations that kiln would consume less than 65 gallons of oil per ton of lime produced and that kiln would easily produce 70 tons of high quality lime per day held to be actionable as fraud).

The representations at issue here were not dependent upon any future conduct of defendant, thus distinguishing them from the representations made in Ault v. C.C. Services, Inc., Wilde v. First Federal Savings & Loan Association (1985), 134 Ill. App. 3d 722, 480 N.E.2d 1236, and Goldberg v. Goldberg (1981), 103 Ill. App. 3d 584, 431 N.E.2d 1060, cited by defendant for the proposition that opinions or promises of future performances are not actionable in fraud. They also differ from the representations made in Spiegel v. Sharp Electronics Corp. that a copier would produce “picture perfect copies,” which the court held to be “mere commendation or opinion,” and those in La Scola v. U S Sprint Communications that the company has “lucrative compensation plan,” that executives are “straight shooters” and that company is “ethical,” which the court found to be too general and difficult to substantiate to be considered statements of fact. In both those cases the. representations were subjective in nature, difficult to prove, and could be reasonably considered as “dealer talk” or “puffing.” (See also Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 163, 510 N.E.2d 409 (description of house as “magnificent” and “comfortable” is subjective description and not fraudulent misrepresentation).) Here, in contrast, the representations were specific and of an objective, quantifiable, and verifiable nature.

We also disagree with defendant’s contention that its proposal described only the physical capacity of the thermal banks, and that it made no representations regarding the time required to reach that capacity, any such representations coming from the CDB’s contract requirements, not defendant’s proposal. In its submittal letter, defendant stated that it was submitting its proposal for ice builders “as called for in the specifications.” Under those specifications, the thermal banks were required to be capable of making 100,000 pounds of ice in 2½-inch thickness in 12 hours under certain conditions. A reasonable inference of such a statement is that the specifications, including the requirement that the capacity be reached in 12 hours, were incorporated into the proposal.

We note that at oral argument, the parties indicated that the ice builders were custom built for the SOIC. If in fact they were designed specifically for the SOIC and were to be constructed in the future, any representations regarding their capabilities might be regarded as predictions or promises of future performance. (See Consolidated Papers, Inc. v. Dorr-Oliver, Inc. (1989), 153 Wis. 2d 589, 594, 451 N.W.2d 456, 459 (“alleged representations that the clarifier to be constructed would meet the ‘specific operating requirements’ of [plaintiff] *** were promises of future performance”); see also Bareham & McFarland, Inc. v. Kane (1930), 228 A.D. 396, 240 N.Y.S. 123 (statements of characteristics of article to be constructed in the future largely conjectural).) There are, however, no allegations in the pleadings as to whether the thermal banks here were in fact custom built, and as this matter is before us upon review of the granting of a section 2 — 615 motion, our consideration must be confined to the allegations of the pleadings. If the fact adduced at oral argument that the thermal banks were custom built for the SOIC would have been raised in a fact motion such as one for summary judgment (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005), rather than in a pleadings motion under section 2 — 615, the issue would then fall within the traditional rule that an action for fraud may not be based upon opinion or representations relating to future contingent events. (Madison Associates v. Bass (1987), 158 Ill. App. 3d 526, 511 N.E.2d 690; West v. Western Casualty & Surety Co. (7th Cir. 1988), 846 F.2d 387) However, here we are bound to the facts alleged in the pleadings alone.

Consequently, we are unable to affirm the trial court’s dismissal based on plaintiff’s failure to plead the first element of his cause of action. However, we do affirm based upon plaintiff’s failure to allege the required element of reliance.

A claim for common law fraud requires actual reliance. (Siegel v. Levy Organization Development Co. (1992), 153 Ill. 2d 534, 542-43, 607 N.E.2d 194 (distinguishing an action under the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 121½, par. 260 et seq.), which does not require actual reliance, from one for common law fraud, which does require such actual reliance); Morse v. Abbott Laboratories (N.D. Ill. 1991), 756 F. Supp. 1108; see also Cahill v. Eastern Benefit Systems, Inc. (1992), 236 Ill. App. 3d 517, 603 N.E.2d 788 (claim for negligent misrepresentation requires showing of actual reliance); Trautman v. Knights of Columbus (1984), 121 Ill. App. 3d 911, 460 N.E.2d 350.) While privity is not a requisite to recovery for fraud, the misrepresentations must reach the plaintiff and he must in fact reasonably rely on them. St. Joseph Hospital v. Corbetta Construction Co. (1974), 21 Ill. App. 3d 925, 954, 316 N.E.2d 51 (“It is enough that the statement ] by the defendant be made with the intention that it reach the plaintiff and influence his action and that it does reach him and that he does rely upon it, to his damage”); see also Roman v. Delta Air Lines, Inc. (N.D. Ill. 1977), 441 F. Supp. 1160.

Although plaintiff alleges in conclusory fashion that it purchased and installed the ice banks in reliance on the representations made by defendant, there are no facts alleged which would indicate that plaintiff was ever shown the letter, proposal or brochure in which the alleged misrepresentations were made. (See Greene v. First National Bank (1987), 162 Ill. App. 3d 914, 922, 516 N.E.2d 311 (complaint for fraud properly dismissed under section 2 — 615 where there were no allegations that the letter containing the misrepresentations was sent to plaintiff, but only allegations that plaintiff “ ‘received’ the *** letter from an.undisclosed source at an uncertain point in time”).) Plaintiff’s claim of reliance appears to be based solely on its status as a third-party beneficiary of the contract between defendant and EMI. While the fact that the representations were not made directly to the plaintiff in the first instance does not preclude an action for fraud (see Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656; St. Joseph Hospital v. Corbetta Construction Co. (1974), 21 Ill. App. 3d 925, 316 N.E.2d 51), the mere fact that plaintiff may have been the third-party beneficiary of the contract between defendant and one to whom the representations were made does not satisfy the element of actual reliance required for an action in fraud. Cf. Seefeldt v. Millikin National Bank (1987), 154 Ill. App. 3d 715, 506 N.E.2d 1052 (no action for fraud existed where there was minimal direct contact between plaintiff and defendants, and defendants personally made no representations to plaintiff).

We need not discuss the sufficiency of the allegations concerning the representations made in defendant’s brochure, which apparently does not contain the exact model which defendant proposed to the CDB, since there still remain proper allegations of misrepresentations contained in defendant’s proposal and submittal letter, and since the complaint fails in any event due to the insufficiency of the allegations of reliance.

Accordingly, for all the above reasons, the judgment of the circuit court of Cook County dismissing plaintiff’s third amended count X is affirmed.

Affirmed.

MURRAY and McNULTY, JJ., concur.


author: JUSTICE MURRAY

text:
    MAIN STREET DEVELOPMENT, Plaintiff-Appellee, v. GUY DeMICCO, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 92—1784
    Opinion filed June 4, 1993.

      S. Ira Miller, of Chicago, for appellant.
    Brian J. Wanca, of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

This appeal was filed by Guy DeMicco (DeMicco) after the trial court refused to vacate a judgment order entered July 18, 1991. For reasons that follow, we reverse the judgment of the circuit court and remand for further proceedings.

On July 18, 1991, plaintiff Main Street Development (Main Street) filed a two-count verified complaint against “Guy Demicco d/b/a Wilson Builders” (the named defendant) in the circuit court of Cook County. The first count, entitled breach of contract, alleged that plaintiff entered into a lease with the named defendant on January 18, 1989, and that the lease was breached when the named defendant failed to meet the rent obligations in January, February and March of 1991 and then abandoned the premises in April 1991. The second count of the complaint was entitled “Confession of Judgment.” This count realleged all of the points in count I. It then alleged that Main Street owned the lease and that the lease was not used in a “Consumer Transaction.” Finally, it alleged that the named defendant owed Main Street $4,035.

Main Street filed a copy of the lease along with the complaint. The lease was a standard form entitled “Store Lease.” It named “Main Street Development” as lessor and purported to lease 1919 West North Avenue, 2nd Floor, Chicago, Illinois, to “Wilson Builders, A Division of Nandel Corp., Guy Demicco, president” as lessee, from February 1, 1989, to January 31, 1992. The lease was signed by “David E. Banan, For: Main Street Development” and “Guy DeMicco, pres., For: Wilson Builders, A Division of Nandel Corp.”

The lease contained paragraph 17, entitled “Confession of Judgment,” which states as follows:

“Lessee hereby irrevocably constitutes and appoints any attorney of any court of record in this state to be his true and lawful attorney for him and in his name and stead, to enter his appearance in any suit or suits that may be brought in any court in this State at any time when any money is due hereunder for rent or otherwise, to waive the issuing of process and service thereof and trial by jury or otherwise, and to confess a judgment or judgments for such money so due and for the costs of suit and for reasonable attorney’s fees in favor of Lessor, and to release all errors that may occur or intervene in such proceedings, including the issuance of execution upon any such judgment, and to stipulate that no writ of error or appeal shall be prosecuted from such judgment or judgments, nor any bill in equity filed, nor any proceeding of any kind taken in law or equity to interfere in any way with the operation of such judgment or judgments or of execution issued thereon and to consent that execution may immediately issue thereon.”

A confession of judgment was also filed at the same time as the complaint. It was signed by a Gregory Ellis, who purported to be the attorney for “Guy Demicco.” The confession waived service of process and confessed that the amount of $4,035 was “due from Defendant to Plaintiff.”

On that same, date, July 18, 1991, the circuit court entered an order which reads as follows:

“This cause coming to be heard on the Confession of Judgment, the court finding jurisdiction over the parties and the subject matter hereto and having reviewed the pleadings and the subject matter hereof,
It is ordered, adjudged and decreed that Main Street Development take judgment against Guy Demicco d/b/a Wilson Builders in the amount of $4,035.00 plus costs on Count II of the Complaint.
It is further ordered that this matter is set for status on return of summons on August 13, 1991 at 9:00 A.M. without further notice.”

On August 13, 1991, Guy DeMicco, pro se, entered a special and limited appearance to request a change of venue. The caption on the motion read “MainStreet Development v. Guy DeMicco,” not Guy DeMicco, d/b/a Wilson Builders, and in the motion DeMicco stated that he was the defendant in the cause of action brought by Main Street.

On September 17, 1991, the circuit. court denied the motion for change of venue and ordered as follows:

“It is further ordered that the judgment order entered on July 18, 1991 is confirmed and that the order of July 18, 1991, is a final and appealable judgment, there is no just reason to delay enforcement.”

Following this order, on December 2, 1991, Guy DeMicco, now represented by counsel, filed a motion to “Vacate the Void Confession Judgment.” Again the caption on this motion indicated that the defendant was Guy DeMicco, not Guy DeMicco, d/b/a Wilson Builders. In this motion DeMicco argued that the confession of judgment was void because paragraph 17 of the lease operated only against Wilson Builders, a division of Nandel Corporation, and not against him in his individual capacity since he never signed the lease in an individual capacity. Attached to this motion was a certificate showing that the Nandel Corporation became a domestic corporation in the State of Illinois as of November 28, 1988, and that Nandel Corporation was in good standing as of October 24, 1991.

On January 23, 1992, the circuit court heard argument on De-Micco’s motion to vacate the judgment. The court denied the motion and ordered that, in the event that an appeal was taken, bond in the amount of $5,000 should be posted. The appeal bond was posted February 11, 1992, and notice of appeal was filed February 13, 1992. The notice of appeal is captioned Main Street Development v. Guy DeMicco, but then goes on to state that the appellant is “Guy DeMicco, sued herein as d/b/a Wilson Builders.” DeMicco asks this court to reverse the order dated January 23, 1992, and remand the cause for further proceedings. The record on appeal contains no transcripts of the lower court’s proceedings.

The only issue raised on appeal is whether the trial court erred by refusing to set aside the confession of judgment. DeMicco frames the issue by stating that “the issue in this case is not whether Mr. DeMicco is personally liable on the lease” but rather “whether he gave unequivocal authority to the plaintiff to sue him individually and to confess judgment against him individually.” DeMicco cites Travis v. Foreman (1966), 75 Ill. App. 2d 348, 220 N.E.2d 648, and Wolf v. Gaines (1961), 33 Ill. App. 2d 428, 179 N.E.2d 466, two cases that stand for the proposition that any warrant of attorney must be signed by the person against whom judgment is to be entered and that authority to confess judgment must be strictly construed. DeMicco then argues that the trial court erred in entering judgment in this case because the confession named him, individually, as the one confessing judgment and not Wilson Builders, in whose name he had signed the confession of judgment.

Unfortunately, plaintiff’s response brief, rather than clarifying the situation, merely muddies the water. In its brief plaintiff contends that the trial court properly held DeMicco individually liable because “at the time the lease was entered into, there was no such entity as Wilson Builders.” Plaintiff then asserts that because there is no such entity as Wilson Builders, DeMicco is properly liable in his individual capacity. However, the only support for its assertion that Wilson Builders does not exist is plaintiff’s own self-serving response to defendant’s motion to vacate the judgment, wherein plaintiff argued before the trial court that the lease was not entered into with “Mandel Corporation [sic]” and, that “Wilson Builders is not an Illinois corporation” and “does not exist.” Plaintiff provided no independent proof or verification for its assertions in the trial court, nor does it tender any to this court.

We find, however, that plaintiff did enter into a lease with the Nandel Corporation and that the complaint was improperly filed.

In its underlying action, plaintiff named as defendant “Guy Demicco d/b/a Wilson Builders.” The designation “d/b/a” or “doing business as” generally indicates a sole proprietorship or some other situation where the named person owns or transacts business under an assumed name. (See Campbell v. Feuquay (1986), 140 Ill. App. 3d 584, 488 N.E.2d 1111.) We note, too, that under Illinois law a person transacting business under an assumed name is required to file a certificate with the county clerk disclosing the names of the persons owning, conducting or transacting business under an assumed name. (Ill. Rev. Stat. 1989, ch. 96, par. 4.) However, the record before this court contains no evidence which identifies the nature of the entity called “Wilson Builders.” There is also no evidence that Guy DeMicco was the owner of Wilson Builders or that he ever transacted business under the assumed name of Wilson Builders.

Furthermore, regardless of plaintiff’s assertion that no such entity as Wilson Builders exists, the record clearly shows that plaintiff entered into a lease with Wilson Builders, a division of Nandel Corporation, which is a corporation that apparently does exist. According to 1 W. Fletcher, Cyclopedia of Private Corporations §43, at 732 (perm. rev. ed. 1990), the term “division of” has no legal significance. Therefore, when an entity is itself unincorporated, and identifies itself as a division of a corporation, acts of the “division” may be attributed to the corporation.

Consequently, in this case, it would appear that the leasing contract should be considered the responsibility of the Nandel Corporation. Thus, plaintiff’s cause of action should have named Wilson Builders, a division of the Nandel Corporation, as the defendant, and the confession of judgment should have been in the same name, not in the name of Guy DeMicco. Therefore, we must agree with DeMicco that the confession of judgment is void for failure to name the proper party.

We reiterate here that DeMicco, as appellant, has not provided this court with any reports of the trial court proceedings in this case. Therefore, we are unable to determine whether the trial court resolved, or even considered, the issue of the manner in which Wilson Builders carried on its business. Relying solely upon the pronouncements of the trial court found within the orders it entered, the trial court entered judgment against Guy DeMicco, d/b/a Wilson Builders. However, it is unknown whether the trial court intended to hold DeMicco personally liable.

Also, this court observes that plaintiff did not appear to bring his cause of action against Guy DeMicco .in his individual capacity, but rather against Guy DeMicco in his representative capacity. Summons to confirm judgment by confession, as well as citation to discover assets, were served upon Guy DeMicco, d/b/a Wilson Builders, at offices located at 1000 North Milwaukee, Chicago, not on Guy DeMicco, individually, at his residence at 1460 Sandburg Terrace in Chicago.

DeMicco does not address the fact that the trial court entered judgment against “Guy DeMicco d/b/a Wilson Builders” and he has presented no evidence to indicate that he is being held personally liable.

In any event, we find that we must reverse the judgment of the lower court and remand for further proceedings consistent with this opinion.. As stated earlier, the leasing party is clearly Wilson Builders, a division of Nandel Corporation. Therefore, the confession of judgment, strictly construed, should have been in the name of the leasing party.

Reversed and remanded.

GORDON, P.J., and McNULTY, J., concur.


author: JUSTICE CAMPBELL

text:
    MARY ANN GEERS, Plaintiff-Appellee, v. ANTHONY E. BRICHTA et al., Defendants-Appellants.
    First District (1st Division)
    No. 1 — 91—0527
    Opinion filed June 7, 1993.
    Rehearing denied August 2, 1993.

      Stern & Rotheiser, of Chicago (Robert D. Shearer, Jr., of counsel), for appellants.
    Anesi, Ozmon & Rodin, Ltd., of Chicago (Marc A. Taxman, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Mary Ann Geers, brought this action in negligence against defendants, Anthony E. Brichta (Brichta) and the ROI Corporation (ROI), for injuries she sustained as a result of an automobile collision with Brichta. Following trial, the jury returned a verdict in favor of plaintiff, awarding her a total of $40,000 in itemized damages, and judgment was entered thereon. Defendants’ motion for judgment notwithstanding the verdict, or in the alternative, for a new trial, was denied by the trial court. On appeal, defendants contend that: (1) the verdict was against the manifest weight of the evidence; (2) the trial judge improperly admitted the deposition testimony of two of plaintiff’s treating physicians; (3) the trial judge improperly denied defendant’s oral request to present the testimony of defendants’ expert physician; (4) the trial judge erred in failing to rule on defendants’ motion for mistrial made after plaintiff’s attorney violated the court’s in limine order; and (5) .the trial judge erred in allowing plaintiff’s jury instructions on the computation of damages for future pain and suffering. For the following reasons, we affirm.

Prior to discussing the merits of this appeal, we find it necessary to comment on several matters of appellate procedure. Supreme Court Rule 341(e)(1) (134 Ill. 2d R. 341(e)(1)) states that the “Points and Authorities” of an appellant’s brief “shall consist of the headings of the points and subpoints as in the Argument, with the citation under each heading of the authorities relied upon or distinguished, and a reference to the page of the brief on which each heading and each authority appear.” The points and authorities section of defendant’s amended brief contains no page references. In addition, defendant’s nature of the case section contains improper argument in violation of Supreme Court Rule 341(e)(2). 134 Ill. 2d R. 341(e)(2).

Defendants have failed to comply with the above-stated civil appeals rules. These rules are not merely suggestions (see First National Bank v. Loffelmacher (1992), 236 Ill. App. 3d 690, 603 N.E.2d 80 (Marengo); People v. Wilk (1988), 124 Ill. 2d 93, 103, 529 N.E.2d 218) and it is within our discretion to strike defendant’s brief and dismiss the appeal based on violations of these rules. (Marengo, 236 Ill. App. 3d at 692, 603 N.E.2d at 81.) In fact, we struck defendants’ original brief for violations of Supreme Court Rule 341(a) (134 Ill. 2d R. 341(a)), which limits briefs to 75 pages and provides that “neither narrow margins nor any other device shall be employed to evade the page limitation.” We note that defendant’s original brief contained both of these violations. While we do not condone the type of careless disregard for the supreme court rules evidenced by defendants’ brief, we decline at this time to penalize these defendants so severely. We will instead proceed to discuss the merits of this case, disregarding any inappropriate or unsupported statements in reviewing this matter. Falk v. Martel (1991), 210 Ill. App. 3d 557, 559, 569 N.E.2d 248.

PRETRIAL ORDERS

The record reveals the following relevant facts. Plaintiff filed a complaint against defendants on September 27, 1984. At a pretrial conference on September 29, 1986, plaintiff and defendants agreed to proceed to trial without presenting any medical experts, other than treating physicians, and Judge Lawrence A. Passarella entered an order barring entry of any expert medical testimony at trial pursuant to Supreme Court Rules 218 and 220.134 Ill. 2d Rules 218, 220.

On August 17, 1987, pursuant to an agreement between the parties, Judge Phillip A. Fleischman entered an order requiring plaintiff to appear for a medical examination. On October 27, 1987, defense counsel sent a letter to plaintiff’s counsel requesting that plaintiff present herself to defendants’ “medical expert,” Dr. William Hejna, for an examination. On December 1, 1987, and January 11, 1988, defense counsel sent out second and third requests for plaintiff to present herself to defendants’ “medical expert.” Subsequently, on April 7, 1988, defendants filed a motion for sanctions against plaintiff pursuant to Supreme Court Rule 219(c), for her failure to submit herself for examination. Concurrently, plaintiff filed a motion to bar defendants’ medical expert’s testimony, citing in support the September 26, 1986, order entered by Judge Passarella barring both parties from calling any expert witnesses at trial. At the hearing on both parties’ motions on April 7, 1988, Judge Daniel J. White entered an order both requiring plaintiff to present herself for a medical examination and barring defendants from presenting any expert medical testimony at trial. Plaintiff was examined by Dr. Hejna on April 26, 1988. On July 6, 1990, this cause was assigned to Judge Jerome T. Burke for trial and was subsequently continued to October 22, 1990.

Prior to trial, Judge Burke denied defendants’ request to present Dr. Hejna as a medical expert, based upon the prior orders of Judges Passarella and White barring such testimony Judge Burke allowed plaintiff’s counsel to refer to Dr. Hejna’s examination in his opening statement, as long as he did not discuss Dr. Hejna’s report. During the course of trial, defendants renewed their request to present Dr. Hejna, and Judge Burke denied their request. Judge Burke further allowed the presentation of the deposition testimony of Dr. Linda Claire Smith over defendants’ objection.

THE TRIAL

At trial, plaintiff testified that on April 15, 1983, she was driving her 1979 Chevrolet Nova westbound on Windsor Avenue in Oakbrook, Du Page County, Illinois, at approximately 2 p.m. Plaintiff reached the intersection of Windsor and York Road, and began to make a left-hand turn onto York, when her car stalled in the middle of the intersection. Immediately, the rear of plaintiff’s car was struck by a Cadillac limousine driven by Brichta and owned by ROI. Plaintiff felt her head snap back upon the impact of the limousine hitting her car. When plaintiff got out of her car, she saw that the front grille, bumper and headlight of the limousine sustained damage from the impact. The damage to plaintiff’s own car was limited to a little dent and a scratch. Plaintiff declined to go to the hospital following the incident.

Later that evening, however, plaintiff began experiencing stiffness in her neck, headache, back pain and blurred vision. Plaintiff’s husband drove plaintiff to the emergency room of St. Joseph’s Hospital, where the examining physician prescribed pain killers and muscle relaxants for the pain in her neck and upper back. On April 21, 1983, plaintiff went to see Dr. Kishor Ajmere for her persistent pain. Dr. Ajmere admitted plaintiff to Silver Cross Hospital (Silver Cross), where plaintiff stayed for one week. Following her release, plaintiff continued to experience severe headaches and constant neck and back pain. Dr. Ajmere sent plaintiff for physical therapy at Silver Cross for about one month, and then referred plaintiff to Dr. Michael Condon for chiropractic treatment. She was treated by Dr. Condon from September through November 1983, and again in April 1984. Plaintiff testified that the chiropractic treatment caused her severe neck pain, and she continued to take pain pills and muscle relaxants. Dr. Ajmere then sent plaintiff to Dr. Duffy, an orthopedic surgeon, for physical therapy treatments. Plaintiff experienced severe headaches as a result of the therapy.

Plaintiff testified that she was not treated for pain during a period of time between 1985 and mid-1986. However, in 1987 plaintiff went back to Dr. Ajmere for her chronic pain, and he referred her to a second chiropractor for treatment. Plaintiff started to work full-time, some time after that and experienced.pain at work most of the time. Plaintiff testified that she was examined by an orthopedic surgeon in April 1988, pursuant to a court order, but she could not remember Dr. Hejna’s name without counsel refreshing her recollection.

In April 1989, plaintiff began experiencing severe neck pain to the point where she could not raise her head and had difficulty swallowing. Dr. Ajmere admitted plaintiff to Silver Cross, where she remained for three days. Dr. Ajmere then referred plaintiff to Dr. Leonard Rutkowski, a neurologist. Dr. Rutkowski tested plaintiff for her difficultly in swallowing, gave her medication, and referred her to Dr. Linda Claire Smith, a physical therapist. Dr. Smith examined plaintiff for the range of motion in her neck and arms, and ordered an EMG test. Dr. Smith prescribed a physical rehabilitation program for plaintiff which included heat treatments, massage and exercises. At times, plaintiff experienced headaches and neck pain as a result of the exercises. At the time of trial, plaintiff was still being treated with exercise and pain medication. Plaintiff testified that she is no longer able to do housework, or engage in sporting activities such as bowling, and at times has difficulty driving because of neck spasms.

Plaintiff further testified that in 1975, she and her family were involved in an automobile accident, after which she sought medical attention. Plaintiff was treated for a tightness in her neck, but after a few months, experienced no pain and was not treated further. At that time, no medication was prescribed, and plaintiff was not limited in her normal activities.

Defendant Anthony Brichta testified as an adverse witness in the plaintiff’s case. On April 15, 1983, Brichta was employed as a limousine driver for American Limousine, owned by the ROI Corporation. Brichta admitted that at the time of the accident, he was looking right, over a grade in the road, as he turned the limousine to the left, when he collided with plaintiff’s car. Brichta admitted that he saw plaintiff’s brake lights prior to the collision. Brichta testified that the limousine sustained damage to the front bumper and headlight assembly, which includes the fiber glass front. Brichta stated that after the collision, he asked plaintiff if she was okay, and she told him that she was all right.

Michael Geers, plaintiff’s son, testified that prior to the accident on April 15, 1983, plaintiff was not limited in her normal household activities. After the accident, plaintiff was not able to drive her children to sporting events, and Michael was called upon to run these and other errands for plaintiff. In addition, Michael drove plaintiff to her physical therapy and doctors’ appointments.

In June 1985, plaintiff’s husband was diagnosed as suffering from leukemia. Michael continued to run errands for his mother, and now also drove his father to and from his doctor visits. Michael’s father died in December 1986. Michael stated that his father’s illness and death was particularly difficult for the plaintiff.

Plaintiff then submitted the deposition testimony of Dr. Kishor Ajmere, which was read to the jury. Dr. Ajmere testified that he is a specialist in internal medicine and that he initially examined plaintiff on April 21, 1983. At that time, plaintiff complained of headaches, backache, neck pain, dizziness, blurry vision and tremors over her body following the accident on April 15. Dr. Ajmere explained that plaintiff suffered from a flexion-extension injury, which is manifested in pain and stiffness in the neck. From his examination, Dr. Ajmere concluded that plaintiff’s neck movements were limited and painful. He further noted that she had a squint in her left eye. Dr. Ajmere gave plaintiff prescriptions for a muscle relaxant and a pain killer.

On April 23, 1983, plaintiff returned to Dr. Ajmere complaining of nausea, vomiting, and continued headaches, dizziness, and cervical pain. Dr. Ajmere admitted plaintiff to the hospital to test for a possible cerebral concussion. At that time, plaintiff’s neck movements were painful and limited. Plaintiff also had marked spasms of the cervical spine muscles. Dr. Ajmere discharged plaintiff from the hospital on April 29, 1983, and prescribed medication and physical therapy. Dr. Ajmere diagnosed plaintiff as suffering from acute cervical strain, and a mild cerebral concussion. Dr. Ajmere stated that in his opinion, based upon a reasonable degree of medical certainty, it was possible that the symptoms from which plaintiff suffered associated with the mild cerebral concussion were related to the April 15, 1983, automobile accident.

Dr. Ajmere saw plaintiff again on May 5, 1983, for her complaints of headaches, nausea, neck pain and nervousness. The results of plaintiff’s lab tests were normal. Dr. Ajmere continued to prescribe medication for plaintiff. Dr. Ajmere saw plaintiff again on May 16, 1983, and noted that her neck movements were stiff. He advised her to continue physical therapy. On June 2, 1983, plaintiff returned to Dr. Ajmere. At that time, plaintiff felt better, but still had pain and stiffness. Dr. Ajmere again advised plaintiff to continue physical therapy.

Dr. Ajmere saw plaintiff several more times between June 21, 1983, and October 13, 1983, and treated her for her persistent physical pain. At that time, plaintiff was also seeing a chiropractor. On June 4, 1984, Dr. Ajmere again examined plaintiff, and referred her to Dr. Rentschler, an orthopedic surgeon.

Dr. Ajmere next saw plaintiff on April 18, 1987. At that time, plaintiff still complained of cervical spine pain and stiffness radiating to her arms. Dr. Ajmere’s notes indicated that plaintiff was seeing Dr. Duffy, an orthopedic surgeon, and that Dr. Duffy had diagnosed plaintiff as suffering from cervical strain. Dr. Ajmere agreed with Dr. Duffy’s diagnosis.

Dr. Ajmere saw plaintiff again on April 5, 1989. At that time, plaintiff said that she had difficulty in breathing, that she was feverish, had pain, congestion, and was feeling weak. Dr. Ajmere concluded that her breathing difficulty was due to an upper respiratory tract infection (a cold). Dr. Ajmere saw plaintiff again on May 5, 1989, when she went to the emergency room of Silver Cross because of severe pain in the left side of her neck. She was admitted to the hospital from the emergency room, and Dr. Ajmere ordered an MRI scan of the cervical spine. The MRI test revealed a disc protrusion or “spurring formation,” an arthritic condition manifested in a patient as pain, stiffness and limitation of the movements of that particular point. Dr. Ajmere stated that it was possible that this spurring or bulging disc was due to the April 15, 1983, automobile accident.

On May 20, 1989, plaintiff mentioned that she was feeling better, and Dr. Ajmere noted that her pain had diminished. Dr. Ajmere allowed plaintiff to return to work on May 22, 1989. Dr. Ajmere last saw plaintiff on October 13, 1990. At that time, plaintiff mentioned that she had seen Dr. Smith for rehabilitation and Dr. Crone for difficulty in swallowing. Upon his examination, Dr. Ajmere noted that plaintiff’s neck movements were painful and stiff. He advised plaintiff to continue her medications. Dr. Ajmere concurred with Dr. Rutkowski’s diagnosis of plaintiff as suffering from chronic fibromyositis, an inflammation of the muscles and ligaments. Dr. Ajmere stated that a patient may suffer from chronic pain and stiffness as a result of the overstretching of these tissues, and that this extensionflexion injury can cause pain and suffering. He indicated that he did not know how long plaintiff's pain would last, but that it may last for the rest of her life.

Plaintiff also presented the deposition testimony of Dr. Linda Claire Smith to the jury. Dr. Smith testified that she specializes in physical medicine and rehabilitation. Dr. Smith first examined plaintiff on January 12, 1990. At that time, Dr. Smith obtained plaintiff’s medical history and reviewed the X rays and other test results provided by Dr. Ajmere. Plaintiff told Dr. Smith that she was in good health and pain free until April 15, 1983, when she was involved in an automobile collision. From her examination, Dr. Smith noted that plaintiff had a very limited active range of motion of her cervical spine, and that her muscle activity level was reduced. Plaintiff’s neck was tender when pressed, and plaintiff complained of pain. Dr. Smith diagnosed plaintiff as suffering from chronic neck and shoulder pain due to an old cervical strain injury. Dr. Smith concluded that it was possible that the pain and suffering experienced by the plaintiff were a result of the automobile accident on April 15, 1983. On further redirect examination, Dr. Smith reviewed the report of Dr. Hejna and stated that she agreed with his diagnosis that plaintiff suffered from a “flexionacceleration injury of the cervical spine with residual symptomology.” Dr. Smith stated that the opinion of Dr. Hejna, a board-certified orthopedic surgeon, would be something that she would reasonably rely on in forming her diagnosis. Dr. Smith last examined plaintiff in August of 1990 and felt that plaintiff was in slightly better condition than on her first visit.

Plaintiff’s counsel read the table of mortality to the jury. According to the table, the life expectancy of plaintiff, at age 43, is 37.8 years.

At the conclusion of the testimony, the trial judge denied plaintiff’s motion for directed verdict. Following closing argument, the trial judge allowed, over defendants’ objection, plaintiff’s proposed jury instructions numbers 20 and 22 regarding future pain and suffering, and plaintiff’s jury instruction number 23 pertaining to plaintiff’s life expectancy. A jury verdict was entered in favor of the plaintiff awarding her itemized damages in the amount of $40,000, including $13,000 for future pain and suffering. The trial judge entered judgment on the verdict and subsequently denied defendants’ post-trial motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. This timely appeal followed.

Opinion

Defendants initially contend that the jury’s verdict in plaintiff’s favor is against the manifest weight of the evidence. Defendants argue that the plaintiff failed to establish a causal connection between the collision in 1983 and plaintiff’s present medical condition.

It is the jury’s function to determine the preponderance of the evidence, and a reviewing court will reverse only if that determination is against the manifest weight of the evidence. (Pharr v. Chicago Transit Authority (1991), 220 Ill. App. 3d 509, 581 N.E.2d 162.) A jury’s verdict will not be set aside merely because the jury could have drawn different inferences and conclusions from conflicting testimony. Friedland v. Allis Chalmers Co. (1987), 159 Ill. App. 3d 1, 9, 511 N.E.2d 1199, 1205.

Liability in a personal injury action cannot be based on speculation or conjecture, and the burden is on the plaintiff to produce evidence, either direct or circumstantial, to show not only that injuries exist, but also that they were the result of the occurrence at issue. (Mesick v. Johnson (1986), 141 Ill. App. 3d 195, 204, 490 N.E.2d 20, 27.) However, the plaintiff is not required to prove the case beyond a reasonable doubt or negate entirely that defendant’s conduct was not the cause of the injury. (Mesick, 141 Ill. App. 3d at 204.) There is no requirement that a plaintiff produce medical testimony concerning the nature and consequences of injuries she sustained. Rather, the plaintiff’s testimony alone is sufficient to raise a question for the jury on the issue of causation. Mesick, 141 Ill. App. 3d at 205.

Considering plaintiff’s evidence in its entirety, the jury in the present case reasonably could have concluded that plaintiff’s condition was caused by the 1983 collision. Specifically, plaintiff testified that prior to April 15, 1983, she was in “fine physical condition” and had no physical complaints. However, upon impact of the collision on that day, she felt her neck snap. Beginning that night and up through the date of trial, plaintiff experienced severe neck pain. Plaintiff’s testimony was corroborated by the testimony of her son, Michael Geers, who stated that plaintiff did not suffer from any pain prior to the collision, and by Drs. Ajmere and Smith, who treated plaintiff for her severe neck pain.

Defendants presented no competent evidence that plaintiff’s injuries resulted from the collision in 1975. Viewing the evidence in the light most favorable to the plaintiff, plaintiff proved a causal connection between her injuries and the collision, and the jury’s verdict is not against the manifest weight of the evidence.

Next, defendants contend that the trial judge improperly admitted the deposition testimony of Drs. Ajmere and Smith because both testified that it was only “possible” that plaintiff’s medical condition was caused by the 1983 collision.

A physician may testify to what might or could have caused an injury despite any objection that the testimony is inconclusive. (Mesick, 141 Ill. App. 3d at 205.) Such testimony is but the opinion of the witness given on facts assumed to be true. (Mesick, 141 Ill. App. 3d at 206, quoting Beloit Foundry v. Industrial Comm’n (1976), 62 Ill. 2d 535, 539, 343 N.E.2d 504, 506.) It remains for the trier of fact to determine the facts and the inferences to be drawn therefrom. Mesick, 141 Ill. App. 3d at 206.

Defendants cite Simon v. Lumbermens Mutual Casualty Co. (1977), 53 Ill. App. 3d 380, 368 N.E.2d 344, and Sommers v. American Economy Insurance Co. (1972), 8 Ill. App. 3d 450, 289 N.E.2d 712, for the proposition that a medical expert may not express an opinion that is based upon conjecture or speculation. These cases each involved decedents who were driving automobiles when they were involved in an accident. Each decedent was found after the accident, gasping for air, and apparently died shortly thereafter of a heart attack. In Sommers, the testimony of the decedent’s personal physician was stricken because the physician admitted that his opinion as to the decedent’s cause of death was a guess. The appellate court held that in giving an opinion, an expert witness is not permitted to guess nor to base the opinion on conjecture. (Sommers, 8 Ill. App. 3d at 452.) Similarly, in Simon, the court concluded that the testimony of the physician who had treated the decedent for high blood pressure was mere speculation because the physician was not on the scene, did not view the body, and his testimony, based on a hypothetical, was that the decedent’s heart attack could have been caused by either the trauma of the accident or hypertensive disease. Simon, 53 Ill. App. 3d at 382-83.

These cases are factually distinguishable from the present case. Here, Drs. Ajmere and Smith each testified that from their examinations of plaintiff, and the medical history plaintiff related to each of them, they were of the opinion, based on a reasonable degree of medical certainty, that it was possible that plaintiff’s injuries were related to the April 15, 1983, collision. The testimony of these doctors meets the “might or could” standard set forth in Mesick, and therefore was properly admitted.

Next, defendants contend that the trial judge erred in denying their request at trial to present the testimony of Dr. William Hejna pursuant to Illinois Supreme Court Rule 220 (134 Ill. 2d R. 220) and that Dr. Hejna’s testimony was improperly barred prior to trial. Defendants further argue that they were prejudiced by various references to Dr. Hejna’s exam at trial.

The purpose of Rule 220 is to ensure adequate trial preparation through the timely disclosure of expert witnesses (McDonald’s Corp. v. Butler Co. (1987), 158 Ill. App. 3d 902, 911, 511 N.E.2d 912, 918), and the decision to bar an expert witness is well within the sound discretion of the trial court. (Castro v. South Chicago Community Hospital (1988), 166 Ill. App. 3d 479, 482, 519 N.E.2d 1069.) Once the court has ruled on a discovery matter, that ruling should not be reversed by another member of the court unless there is a change of circumstances or additional facts which warrant such action. Balciunas v. Duff (1983), 94 Ill. 2d 176, 446 N.E.2d 242, 247.

The record in the present case reveals that on September 29, 1986, the parties appeared before Judge Passarella for a pretrial conference and agreed to proceed to trial without presenting any medical experts, other than treating physicians, pursuant to Supreme Court Rules 218 and 220. (134 Ill. 2d Rules 218(a)(4), 220(b).) At the conclusion of the conference, Judge Passarella entered an order barring both parties from presenting any undisclosed expert witnesses at trial.

On August 17, 1987, the parties appeared before Judge Fleischman and entered an agreed order compelling plaintiff to appear for a medical examination. When plaintiff failed to appear for the medical examination, defendants filed a motion for sanctions against plaintiff under Supreme Court Rule 219(c) (134 Ill. 2d R. 219(c)) to bar evidence of plaintiff’s medical damages. At the hearing on defendants’ motion before Judge White, defendants asked to present Dr. Hejna as an expert at trial. At that time, defense counsel admitted that he did not disclose Dr. Hejna as his expert witness under Rule 220. Judge White denied defendants’ request and entered an order barring defendants from presenting any expert testimony at trial based on Judge Passarella’s prior order. Following Judge White’s ruling, defense counsel agreed that he would return to court at a later date if he wanted to disclose Dr. Hejna as an expert witness under Rule 220.

- Defense counsel never appeared before the court to request that Dr. Hejna appear as an expert witness pursuant to Rule 220. Subsequently, at trial, Judge Burke denied defendants’ request to present Dr. Hejna as a witness based on the two prior orders of the court barring entry of expert testimony at trial.

Defendants claim that Dr. Hejna should have been allowed to testify as an expert because there was a “change of circumstances.” In support, defendants rely on Cometo v. Foster McGaw Hospital (1988), 167 Ill. App. 3d 1023, 522 N.E.2d 117. There, plaintiff’s disclosed medical expert refused to testify as an expert witness because he was reluctant to testify against another member of his profession. Plaintiff was unable to locate a replacement expert witness by the date of the final pretrial conference, and the motion judge barred plaintiff from using any undisclosed and unidentified experts at trial. Subsequently, defendants filed motions for summary judgment, and plaintiff filed a response which included the counteraffidavit of the previously disclosed expert witness, who by. that time had agreed to testify. At the hearing, the trial judge sent the parties back to the motion judge for clarification of his order barring plaintiff from using any experts at trial. The motion judge issued a clarifying order barring the counter-affidavit of plaintiff’s expert based on his prior order. Cometo, 167 Ill. App. 3d at 1025-27.

On appeal, this court found that the cooperation of plaintiff’s expert and the five-month extension for commencement of trial constituted sufficient change in circumstances from those that existed when the Rule 220 sanctions barring plaintiff’s expert witnesses were imposed. This court further excused the late disclosure of plaintiff’s expert witness, noting that the reluctance of members of the medical profession to testify against each other is a well-recognized obstacle for plaintiffs in a medical malpractice action. Cometo, 167 Ill. App. 3d at 1029.

The present case is distinguishable from Cometo. Defendants failed to show the court a change of circumstances which necessitated vacating the prior orders barring both parties from submitting expert witnesses. Defendants never disclosed Dr. Hejna as an expert witness pursuant to Rule 220 and never sought any modification of Judge Passarella’s or Judge White’s pretrial orders. Thus, the trial court did not err in denying defendants’ request to use Dr. Hejna as an expert witness at trial.

In addition, defendants cite no authority in support of their contention that they were prejudiced by the various references at trial to Dr. Hejna’s report. Defendants have not shown how they were prejudiced by the plaintiff’s testimony that she was examined by a doctor whose name she could not remember, or by plaintiff’s counsel’s reference in opening and closing arguments to the fact that plaintiff had an examination. Further, Dr. Smith’s testimony was not improper because a treating physician may give opinion testimony on the basis of reliable facts not in evidence without disclosing those facts, which may include reports and opinions from other medical providers, so long as they are of a type reasonably relied on by experts in the field. Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322.

Next, defendants argue that an in limine order was violated by the following exchange between the plaintiff and plaintiff’s counsel on direct examination:

“Counsel: Now, when the police came, did the defendant say anything to the policeman in your presence?
Plaintiff: The policeman asked for our license and then he was complaining about being in court that morning — .”

Defense counsel objected and stated:

“This is something that we talked about yesterday and right before coming out here. What is the sense of a motion in limine when the conditions don’t comply?”

In response to this, the judge reserved his ruling.

Plaintiff indicates that the defendants failed to set forth any in limine order, and the record bears this out. Defendants fail to point to any page in the record wherein such motion was proposed, let alone granted. In light of the record, defendants have waived this for review on appeal. See Baird v. Adeli (1991), 214 Ill. App. 3d 47, 65-66, 573 N.E.2d 279 (plaintiff’s contention that order in limine was violated waived on review because there was no order in limine).

Finally, defendants contend that plaintiff’s proposed jury instructions numbers 20, 22 and 23 regarding damages for future pain and suffering were erroneously allowed over defendants’ objections. Defendants argue that the instructions were improper because plaintiff failed to introduce any competent evidence concerning future pain and suffering at trial.

The trial court has the discretion to determine which instructions will be given and, absent a clear abuse of discretion, its decision will not be disturbed on review. (Villa v. Crown Cork & Seal Co. (1990), 202 Ill. App. 3d 1082, 1087, 560 N.E.2d 969, 972.) In the present case, the record shows that sufficient evidence was presented to indicate that the plaintiff would continue to suffer from pain in the future. Dr. Ajmere testified that he did not know how long plaintiff’s pain would last, but that it may last for the rest of her life. Based on the evidence presented at trial, the trial court properly instructed the jury on the issue of future damages.

For all of the above reasons, the judgment of the trial court is affirmed.

Affirmed.

MANNING, P.J., and BUCKLEY, J., concur.