author: JUSTICE GREEN

text:
      In re MARRIAGE OF DONNA BRANHAM, n/k/a Donna Flath, Petitioner-Appellee, and MICHAEL BRANHAM, Respondent-Appellant.
    Fourth District
    No. 4 — 92—1014
    Argued June 17, 1993.
    Opinion filed August 5, 1993.
    Laura D. Glower (argued) and D. Cameron Dobbins, both of Dobbins, Fraker, Tennant, Joy & Perlstein, of Champaign, for appellant.
    Wayne O. Smith (argued), of Dilks, Rodeen, Gibson & Smith, Ltd., of Paxton, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

Respondent Michael Branham appeals an order entered November 10, 1992, in the circuit court of Ford County, granting the request of petitioner Donna Branham, n/k/a Donna Flath, to modify a judgment of dissolution of marriage and remove the parties’ minor child, Joshua, from Illinois. Respondent maintains on appeal the trial court’s order was against the manifest weight of the evidence. We affirm.

The petition for modification and removal of the child from Illinois, filed March 2, 1992, alleged as follows: (1) the court had previously entered a judgment of dissolution of the parties’ marriage on October 16, 1987; (2) the court entered an order on the stipulation of the parties as to custody and visitation of the minor child on January 28, 1988; (3) pursuant to the stipulation of the parties, they were awarded joint custody of the child, with petitioner to have the primary physical custody, subject to respondent’s visitation rights as defined in the stipulation; (4) since the entry of the stipulation and order, there was a material change in circumstances of the parties, in that petitioner has remarried; (5) her present husband, Michael Flath, was on active duty in the United States Air Force and was stationed at Chanute Air Force Base in Rantoul; (6) due to the closure of Chanute in the fall of 1993, petitioner and Flath will be forced to relocate their residence and duty assignment; (7) it is in the best interest of the parties’ minor child to remain with petitioner subject to respondent’s right of reasonable visitation; and (8) the petitioner and Flath will necessarily be required to relocate from their current residence near Paxton, Illinois, to an area outside of Illinois.

Evidence was presented at the hearing on the petition that, since the filing of the petition, Flath, who was a staff sergeant in the Air Force, had decided to take early retirement and wanted to move 230 miles from Paxton, Illinois, to Waukesha, Wisconsin, to work in his family’s pizza business.

Respondent testified as an adverse witness as follows: (1) the basis for his objecting to the removal of the child was that the move would substantially reduce the time he could spend with his son, and it would take Joshua away from his school, church, and his immediate blood relatives in the Paxton area; (2) he was entitled to visitation with Joshua every other weekend, alternate major holidays and four weeks during the summer; (3) he had been able to exercise most of his visitation rights, except for a period in 1991 when he was behind in child support and thought respondent would not allow him to see Joshua; (4) he has attended functions at Joshua’s church and school, including plays, musicals, and open houses; (5) he has asked the school to provide copies of report cards and homework, but he felt the school had been lax in doing so; and (6) petitioner indicated to him that she would make Joshua available for visitation in the event they are allowed to move to Wisconsin, but it would not be as much time as he currently had available.

Petitioner testified that respondent had not exercised all the visitation with Joshua to which he was entitled. She noted he had never taken Joshua for the four weeks in the summer, and from July 1990 to April 1991, he just quit exercising visitation entirely. She said he did not telephone and did not renew visitation until she filed a petition in court for past-due child support. She noted he then resumed visitation but skipped “a few” times without calling to say he would not be coming, and she called respondent to arrange a rescheduled visit. Petitioner testified that she had never withheld visitation and that it was respondent who told her he was having financial problems and did not want to involve Joshua. She further testified that Joshua had recently started Little League, and he was upset that respondent had not gone to any games.

Petitioner testified that Joshua loves his dad, and she was not seeking to prevent Joshua from continuing to have a relationship with respondent. She said the reason she wanted to move from Illinois was because she and her husband had been offered jobs with his brother’s pizza business, and nothing would be available to him in the area when he retired from the Air Force. She indicated she would be working as a waitress part-time, and she would be making more money, including tips, than she had been at her previous job as a bookkeeper at a nursing home. She said her husband would initially be making approximately $300 less per month than he had been making in the Air Force. Petitioner also indicated that she would be working from 10 a.m. to 3 p.m., and would be able to be with Joshua before and after school.

Petitioner testified that Waukesha, Wisconsin, is 230 miles from Paxton, and she had driven there by car in 3½ to 4 hours. She further testified Joshua has aunts, uncles, cousins, and grandparents in the Paxton area, and the only relative in Wisconsin, other than the Flaths, is a great-aunt who is not close to Joshua. She said if she moves to Wisconsin, she will be returning to the Paxton area to visit the extended family. She said she would allow Joshua to visit with respondent at those times. She also proposed that she would be willing to meet respondent halfway for visitation on some weekends, every other major holiday and in the summer.

Petitioner indicated that they would initially be staying with her husband’s parents in Waukesha, until they could find a place of their own. She said a new school was being built one block from the Flaths’ house. She admitted she had no idea where they might be living when they moved out of his parents’ home, nor did she know if they would be able to find a house near that school.

Petitioner testified she would like to finish her education at a technical college in Waukesha when she moves to Wisconsin, but she admitted there was no reason she could not continue attending Parkland College if she did not move. She also said she had not sought employment as a waitress in Illinois.

Sergeant Flath testified that he is a 12-year veteran of the Air Force with a specialty in computer maintenance. He noted that after •the air base in Rantoul closes in the fall of 1993, the Air Force will be making cutbacks, and it would be more difficult to take early retirement. He said if he stayed in the Air Force, he could request only that he be transferred within a region, for example the Midwest. He could not request a particular base. The only other base in Illinois is near St. Louis. He said he had not done anything with regard to seeking civilian employment in Illinois, because he had looked in the newspaper and had not seen anything for computer maintenance. He indicated his goals were to go to Wisconsin and use the manager-trainee position at the pizza business as a stepping stone toward employment in Wisconsin as a correctional officer or with the post office.

Michael Flath’s brother Richard then testified concerning the nature of the pizza business and Michael’s chances for advancement in that business. He said he owned a 50% interest in the business and his father-in-law owned the other half. He said Michael would earn $300 per week initially, plus full medical and life insurance, and petitioner would be able to “very comfortably” earn $7 per hour as a waitress.

Testifying on his own behalf, respondent gave additional testimony as follows: (1) he always rescheduled any weekend visits that he missed; (2) he was not able to exercise his four-week summer visitation prior to the summer of 1992 because of his employment situation; (3) he currently lives with his fiancee, but she is not home on weekends when Joshua is visiting; (4) on a typical weekend, he picks Joshua up on Friday night, then on Saturday evening they have dinner with respondent’s mother, and afterward they all return to the grandmother’s farm near Paxton to spend Saturday night and Sunday; (5) Joshua has his own bedroom at his paternal grandmother’s house, and he keeps a supply of clothes and toys there; (6) he intends to watch Joshua’s Little League games whenever possible; (7) he had recently started a new job that was more stable than previous ones and would allow more time for visitation; and (8) he intended to exercise his four-week visitation in the summer.

Both parties argued to the court concerning the best interest of the minor. Respondent argued the move would have a drastic effect on his relationship with the child, because it would change his current visitation of approximately 85 days to approximately 33 days due to the loss of alternate weekend visitation. He maintained there was not a rational basis to allow petitioner to move out of the State.

In determining that petitioner should be allowed to remove the minor from Illinois, the court addressed only the question of petitioner and her husband’s employment situation. The court noted that with the closing of the air base, they would not be able to stay in the area if Flath remained in the Air Force, and the nearest Illinois base was as far from Paxton as Waukesha, Wisconsin. The court reasoned that since people trained to do duties in the Air Force are ill prepared to transfer those skills outside the Air Force, the best chance for employment would be in the family business. The court concluded that it would allow the motion and ordered visitation to include four weeks in the summer, half of each Christmas and Easter vacation and one weekend per month during the rest of the year. In addition, respondent would be allowed to visit with Joshua anytime petitioner returned to the area to visit her family. The court made no other findings of fact and did not specifically address the question of whether the move was in Joshua’s best interests.

Section 609 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 609) provides that the court may grant leave, to the party having custody of a minor child, to remove the child from Illinois, whenever such approval is in the best interests of such child. The statute indicates the burden of proving that such removal is in the best interests of the child is on the party seeking the removal.

The Illinois Supreme Court identified five factors for the court to consider in determining whether a proposed removal is in the best interest of the child sought to be removed. The factors to be considered are (1) the likelihood that the move will enhance the general quality of life for both the custodial parent and the child; (2) the motives of the custodial parent in seeking the move to determine whether the removal is merely a ruse intended to defeat or frustrate visitation; (3) the motives of the noncustodial parent in resisting the removal; (4) the visitation rights of the noncustodial parent; and (5) whether a realistic and reasonable visitation schedule can be reached if the move is allowed. (In re Marriage of Eckert (1988), 119 Ill. 2d 316, 326-27, 518 N.E.2d 1041, 1045-46.) Neither the Act nor Eckert requires a recital by the circuit court of findings in regard to the factors discussed in Eckert, but the evidence was sufficient in that regard to support the decree.

The first factor is the likelihood that the proposed move will enhance the general quality of life for the child and the person having physical custody. Although it might initially appear that the move would not enhance the quality of life because the family will be moving from a single-family dwelling to sharing with Flath’s parents and they will be making less money, the record indicates the situation would likely be temporary. Moreover, respondent and her new husband testified he would not be able to find comparable work in the Paxton area, and with the closing of the air base in Rantoul, this could, as the trial court determined, be correct.

The case at bar is unlike In re Marriage of Davis (1992), 229 Ill. App. 3d 653, 594 N.E.2d 734, where this court determined that an order allowing the removal of a child from Illinois was against the manifest weight of the evidence. There, the petitioner wanted to move to Georgia with her fiance. The child would be separated from two siblings who were in the custody of respondent. The court noted that the mere desire to move to another State, without more, was insufficient to show the move to be in the best interest of the child.

The Davis court, quoting In re Marriage of Berk (1991), 215 Ill. App. 3d 459, 466, 574 N.E.2d 1364, 1369, noted as follows:

“ ‘It is virtually impossible to envision a situation wherein the custodial parent does not wish to live with a new spouse. If the obvious happiness the spouse would receive from being able to live with a new spouse were sufficient to prove removal in the child’s best interests, court supervision of the proceedings would be unnecessary, and at best, ceremonial. A custodial parent must prove more than his or her own desire to live with a new spouse to prove that a child’s best interests will be served by removal.’ ” Davis, 229 Ill. App. 3d at 661, 594 N.E.2d at 739.

Here, the evidence indicated that petitioner’s husband was retired from the Air Force and, after a superficial check of area newspapers, had not been able to locate employment in his specialty. There was no evidence he attempted to find work in the Paxton area as a manager trainee. The general quality of Joshua’s life may not be directly enhanced by the move to Wisconsin. However, if the removal is denied, and petitioner and her husband are unable to obtain employment, the quality of Joshua’s life will be . considerably lessened. Moreover, the evidence indicated petitioner would be able to work fewer hours as a waitress in Wisconsin and be at home with Joshua before and after school. In addition, although they would initially be sharing a house with Flath’s parents, the housing could be found to likely be comparable to what they had in Paxton. Finally, the Flaths may likely need to relocate, and the distance from Waukesha to Paxton is no greater than it would have been if the Flaths were able to relocate to Scott Air Force Base in Belleville, Illinois. The move would not appear to prevent the minor from having frequent contacts with his father and other close relatives.

As to the second and third factors listed in Eckert, the evidence shows that neither party has improper motives for seeking or resisting the removal. Petitioner had not tried to frustrate respondent’s visitation with Joshua, and the evidence indicates she had actually made efforts to reschedule missed visits to ensure that respondent and Joshua were able to be together. She testified that Joshua loves his dad, and she encouraged them to spend time together. Respondent, although he has missed “a few” visits, has a fairly close relationship with Joshua and naturally wants him to remain in the area. Since the record clearly shows both parties had proper motives regarding their reasons for seeking or resisting the removal, we need not discuss the issue further. In re Marriage of Zamarripa-Gesundheit (1988), 175 Ill. App. 3d 184, 188, 529 N.E.2d 780, 782.

Finally, with regard to the last two factors, we note petitioner is willing to allow liberal visitation, including an' extended visit during summer vacation and whenever she is visiting her own relatives in Illinois. The distance from Paxton to Waukesha is not so significant that a realistic and reasonable visitation schedule cannot be maintained.

The Eckert court noted that a reasonable visitation schedule was one that would “preserve and foster the child’s relationship with the noncustodial parent,” and that the court should be reluctant to interfere with a parent who has been diligent in exercising his visitation rights. (Eckert, 119 Ill. 2d at 327, 518 N.E.2d at 1046.) This was especially true where the removal is for “ ‘frivolous or unpersuasive or inadequate reasons.’ ” (Eckert, 119 Ill. 2d at 327, 518 N.E.2d at 1046, quoting D’Onofrio v. D’Onofrio (1976), 144 N.J. Super. 200, 206, 365 A.2d 27, 30.) The court reasoned, however, that if the best interests of the children would not be affected by a move to another State, the custodial parent should be free to move. The court further noted that if the noncustodial parent objects to the removal but has not exercised his visitation rights, the court should consider this fact in determining whether to grant the petition to move. Eckert, 119 Ill. 2d at 327-28, 518 N.E.2d at 1046.

Here, respondent had not previously exercised his four-week summer visitation. If he and Joshua are able to spend four weeks together in the summer, in addition to half of each Christmas and Easter vacation, plus eight other weekend visits per year and any visits which would occur when petitioner returns to Illinois to visit her family, we conclude that the relationship between Joshua and respondent is likely to be preserved. As the court stated in Zamarripa-Gesundheit, although the relationship will be somewhat different than it has been, the difference would not be significant, and the interests of the custodial parent should not be subordinated to those of the noncustodial parent. Zamarripa-Gesundheit, 175 Ill. App. 3d at 190, 529 N.E.2d at 783.

We conclude that the evidence before the trial court was sufficient to allow the court to conclude the removal was in the best interest of the minor.

Accordingly, for the reasons stated, we affirm the decision of the trial court.

Affirmed.

STEIGMANN, P.J., and McCULLOUGH, J., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
      In re J.C., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Florence Loveless, Respondent-Appellant).
    Fourth District
    No. 4 — 92—0375
    Opinion filed August 12, 1993.

      Kristen H. Fischer, of Kristen H. Fischer Law Offices, of Urbana, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Beth McGann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Diana Lenik, of Urbana, guardian ad litem.

   JUSTICE LUND

delivered the opinion of the court:

Fortunately, this appears to be a case of first impression. The mother and father of J.C. (age 13 at the time of the trial court hearing), even though divorced for years, deserve credit for what the trial judge termed “horrible damage” to this child. The father had custody for most of the 13 years. The mother insists that she be allowed to surrender her parental rights. The circuit court judge refused, but placed the child under custody of the Department of Children and Family Services (DCFS) and ordered certain visitation with the mother. The mother appeals from the refusal to accept the termination and the visitation order. The trial court’s decision adequately portrays the facts with which the court was confronted.

Trial Court Decision

“THE COURT: Well, the neglect found in this case is the result of physical abuse to the Respondent Minor, by the Respondent Father, and neglect of the Respondent Minor by the Respondent Mother. Each of the respondent parents are [sic] unfit and unwilling, for reasons other than financial circumstances alone, to care for, protect[,] train[,] and discipline the Respondent Minor. Reasonable and appropriate services, indeed services beyond what is reasonable, have been attempted and have failed to correct the conditions which led to these findings. It’s in the best interest of the Respondent Minor and of the public, that the following order be entered. The Respondent Minor’s hereby adjudged a neglected minor, and is made a ward of the court. Custody of the Respondent Minor is hereby removed from the respondent parents and not to be returned to either of them, unless expressly ordered by the Court. Gary Morgan, Guardianship Administrator of [DCFS], and any successor in office, is appointed *** guardian of the Respondent Minor, with power to place the Respondent Minor. The respondent parents are to cooperate fully and completely with the guardian, including but not limited to the following. In cooperation with the guardian, they are to establish and maintain a regular course of visitation with the Respondent Minor, so long as such visitation is deemed to be in the best interest of the Respondent Minor by the guardian. The parents have no option. That’s not an invitation and that’s not a request. That’s a Court order. In the event that it’s determined by the guardian and by the therapists and the mental health professionals and caseworkers, and everyone else working with [J.C.], that a course of visitation or a specific visitation is not appropriate at this time, that’s fine. The guardian has the discretion to arrange no visitation or to suspend visitation or to cancel any visitation. However, that is to be the decision of the guardian, and the agencies and people with whom the guardian is working. It’s not an option to the parents. All contact by the Respondent Mother and Father, with the Respondent Minor, be it personal, by telephone or written, is to be directly and immediately supervised by the guardian, or by a responsible party or agency designated by the guardian, to allow for family therapy, should that decision be made, that that’s an appropriate course to follow. The respondent parents and the Respondent Minor[ ] are directed to cooperate fully and completely with the guardian, and are to attend each appointment, meeting, conference^] or staffing scheduled by the guardian, with a social worker, caseworker, family aide specialist, agent, employee[,] or other person designated by the guardian. The respondent parents are to cooperate with any course of counseling or therapy recommended by the guardian. They are to refrain from changing their places of residence without giving at least fourteen days’ prior notice to the guardian. And, they are to execute all authorizations for the release of information requested by the guardian. They are further to allow the guardian access to their homes for inspection of the same, upon request. Independent of the order entered this date and pursuant to the inherent authority of the Court, this case is continued for a review hearing to October the 27th, at 2:30 in this courtroom.
With regard to the request that I consider terminating the parental rights of the Respondent Mother, again, I will repeat the position taken by the Court the last time this was discussed. If the Respondent Mother wishes to knowingly, voluntarily[,] and intelligently execute a surrender of parental rights, she may do so. However, that does not mean that this Court will terminate her parental rights. The Court will not terminate her paréntal rights until the Court is convinced that that action is in the best interest of the Respondent Minor. I’m far from persuaded that that is in the best interest of Respondent Minor at this time. Unfortunately, the incredible course of abuse and neglect that this young lady has suffered throughout her childhood, at the hands of both parents, have left her, has left her[ ] with obvious emotional and mental health problems, with understandably very low self-esteem. And, even though she has been physically removed from the custody of her parents, she continues to be the scapegoat. She continues to be responsible for all of the shortcomings and all of the failures of her parents. And, undoubtedly, if I give them the opportunity, they will continue to blame her for everything that is wrong in their lives and for the horrible mess they have made of her life[ ] and[,] ultimately, I believe history will prove me correct, of the lives of her sisters. To accept the surrender of parental rights at this point, and terminate parental rights, would be to reinforce the blaming that the respondent' parents are doing with [J.C.] and her residential placement at this point, with her having tremendous but understandable behavioral problems. To accept this surrender and terminate parental rights[ ] would be to reinforce in her mind[] the suggestion that she is worthless, that she is bad, that she is beyond redemption and beyond help, and they say I’m a tough Judge, and would be to condemn this child. The Court will not be a party to that. It’s the Court’s responsibility to do everything within its power to correct the horrible damage that’s been done to this child by these two people, not to reinforce it. It’s one of the sad ironies of life, that parents have the power but not the right[ ] to abandon their children. And children, in my judgment, have the right but not the power[ ] to abandon their parents. Your dream may well be fulfilled, ma’am, your parental rights may be terminated, but when it happens, it will happen only because I’m convinced that’s in the best interest of your child, and will probably happen when she says she wants it to happen, not simply because you want it to happen. I reject the lies you have told. I reject the blame you have projected onto this child. And, I’m appalled at the damage you have done. I won’t help you do it anymore.”

As indicated by the trial court’s decision, considerable thought and concern were given before determining the course to be taken. The best interests of this child were paramount, as well they should be. (See In re M.C. (1990), 197 Ill. App. 3d 802, 805, 555 N.E.2d 111, 113.) Evidence was sufficient to find both J.C.’s parents unfit, and an order terminating parental rights would not have been against the manifest weight of the evidence. However, the trial court recognized the unlikelihood of adoption and the necessity for doing everything possible to build the self-esteem of this child. We find his effort to be an example to other judges assigned to neglect cases.

As to respondent mother’s claimed right to surrender for adoption, we agree completely with the trial court. A surrender of parental rights may be executed, but only a court order can terminate those rights as related obligations. (See Ill. Rev. Stat. 1991, ch. 40, par. 1500 et seq.; ch. 37, par. 802 — 29.) Evidence indicates the trial court’s refusal to terminate parental rights was not against the manifest weight of the evidence.

The trial court’s order as to visitation presents a more difficult question. Applicable sections of the Juvenile Court Act of 1987 (Juvenile Act) (Ill. Rev. Stat. 1991, ch. 37, par. 801 — 1 et seq.) are intended to protect children from neglect and abuse and to provide, where needed, supervised contact with a parent or parents. (See Ill. Rev. Stat. 1991, ch. 37, par. 801 — 2.) Parents’ rights to their children are given procedural protection, and restrictions are provided before court termination of those parental rights may take place. (See Ill. Rev. Stat. 1991, ch. 37, par. 801 — 5.) A surrender of rights usually results when the courts are petitioned by the State to terminate them. While the Adoption Act (Ill. Rev. Stat. 1991, ch. 40, par. 1500 et seq.) provides for voluntary termination without findings of unfitness, the Juvenile Act principally comes into play where a finding of unfitness is suggested. See Ill. Rev. Stat. 1991, ch. 37, par. 802 — 29.

Here, we have the abuse and neglect but, rather than a parent seeking to retain parental rights, we have a parent wanting to be free of those rights — when adoption, for practical purposes, is not feasible.

Section 2 — 23 of the Juvenile Act (Ill. Rev. Stat. 1991, ch. 37, par. 802 — 23) provides for orders of disposition in relation to wards of the court. Section 2 — 23(2) of the Juvenile Act (Ill. Rev. Stat. 1991, ch. 37, par. 802 — 23(2)) provides for the possible orders of protection under section 2 — 25 of the Juvenile Act (Ill. Rev. Stat. 1991, ch. 37, par. .802 — 25), Section 2 — 25(l)(e) of the Juvenile Act provides that a person may be required:

“To cooperate in good faith with an agency to which custody of a minor is entrusted by the court or with an agency or association to which the minor is referred by the court.” Ill. Rev. Stat. 1991, ch. 37, par. 802 — 25(l)(e).

. We recognize that section 2 — 25(l)(e) and other provisions of section 2 — 25 of the Juvenile Act are worded to provide protection ensuring welfare of the minor, wherever the placement, and to provide protection from offensive action. Here, in contrast, the trial court was ordering action, not prohibiting it. However, section 2 — 25(l)(g) of the Juvenile Act provides that a person may be ordered: “To refrain from acts of commission or omission that tend to make the home not a proper place for the minor.” (Ill. Rev. Stat. 1991, ch. 37, par. 802— 25(l)(g).) At least the word “omission” was considered by the legislature and would seem to suggest that one may be required to take affirmative action where appropriate. In adopting the Neglected Children Offense Act (Offense Act) (Ill. Rev. Stat. 1991, ch. 23, par. 2359.9 et seq.), the legislature definitely established a requirement that parents have a duty to prevent dependency and neglect. Section 2 of the Offense Act provides in part:

“Any parent, legal guardian or person having the custody of a child under the age of 18 years, who knowingly or wilfully causes, aids or encourages such person to be or to become a dependent and neglected child as defined in section 1, who knowingly or wilfully does acts which directly tend to render any such child so dependent and neglected, or who knowingly or wilfully fails to do that which will directly tend to prevent such state of dependency and neglect is guilty of the Class A misdemeanor of contributing to the dependency and neglect of children. Instead of imposing the punishment hereinbefore provided, the court may release the defendant from custody on probation for one year upon his or her entering into recognizance with or without surety in such sum as the court directs. The conditions of the recognizance shall be such that if the defendant appears personally in court whenever ordered to do so within the year and provides and cares for such neglected and dependent child in such manner as to prevent a continuance or repetition of such state of dependency and neglect or as otherwise may be directed by the court ***.” Ill. Rev. Stat. 1991, ch. 23, par. 2361.

The trial judge, in entering the order directing certain visitation, was seeking to aid J.C., who was dependent and neglected. If it becomes apparent that parental visitation is necessary in treatment of this disturbed child — so be it. Visitation would be in cooperation with DCFS, the agency entrusted with J.C.’s custody, and would be for the purpose of assisting in the emotional needs and mental health of J.C.

We conclude that while the statutes do not specifically allow a court to require visitation by a parent with a child, such power is implied and exists. It would be sad if we could order a parent to provide financial support for a child, but could not order that parent to assist with the mental health and emotional needs of that child.

Affirmed.

STEIGMANN, P.J., and GREEN, J., concur.


text:
    VICKI CRAIGMILES, Plaintiff-Appellee, v. GERTRUDE EGAN, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0926
    Argued May 24, 1993.
    Opinion filed August 5, 1993.
    Rehearing denied September 3, 1993.

      Karen L. Kendall and Brad A. Elward (argued), both of Heyl, Royster, Voelker & Allen, of Peoria, and Scott D. Spooner, of Heyl, Royster, Voelker & Allen, of Springfield, for appellant.
    Florence L. Bain (argued), of Kanoski & Associates, of Springfield, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On February 10, 1989, plaintiff Vicki Craigmiles filed a complaint in the circuit court of Sangamon County against defendant Gertrude Egan seeking damages for injuries allegedly resulting from defendant’s negligence which caused a collision between automobiles driven by the two parties on February 25, 1987. At the conclusion of the evidence in a jury trial, the court directed a verdict for plaintiff finding defendant 100% liable for plaintiff’s injuries. On June 26, 1991, judgment was entered on a verdict for plaintiff for $9,150. The trial court then granted plaintiff a new trial on the issue of damages only, with defendant to be 100% responsible for any damages. After that trial was held, the court entered a judgment on a verdict for plaintiff in the sum of $50,158.37.

On appeal, defendant maintains that the court erred (1) in the first trial in directing a verdict, fixing defendant’s negligence as 100% of the cause of plaintiff’s injuries, and in granting plaintiff a new trial under the term decreed; and (2) in denying her post-trial motion after the second trial. Plaintiff responds maintaining defendant cannot now contest the grant of the new trial because defendant did not file a timely petition for leave to appeal that order and, if that petition was timely, our denial of the petition foreclosed further consideration of that issue. Plaintiff further asserts that even if the question of the grant of the new trial is before us, the evidence at the first trial supported the direction of the verdict on the question of liability, the determination of 100% fault on defendant, and the grant of a new trial on damages. Plaintiff further maintains that evidentiary errors justified the grant of the new trial and the evidence supported the judgment entered after the second trial.

We determine that the evidence at the first trial supported a directed verdict for the plaintiff with the fault attributed 100% to defendant. However, we conclude that the issue of the propriety of the grant of a new trial on damages only is properly before us and the circuit court erred in granting a new trial to plaintiff. Accordingly, we reverse and remand to the circuit court with directions to reinstate the judgment for plaintiff entered after the first trial. Because of this ruling, we are not required to rule upon the claims of error which concern the retrial. Nevertheless, so that remand to us need not be made if we are wrong on the question of the grant of the new trial, we state that we find no reversible error arising from the second trial.

The most difficult questions in the case arise from plaintiff’s assertion that any error in the grant of a new trial is not before us. Accordingly, we consider this issue first. In Ford v. Narup (1962), 38 Ill. App. 2d 245, 187 N.E.2d 10, the then Fourth District Appellate Court held that in order to preserve the question of the propriety of the grant of a new trial in a civil case, a party objecting to it must seek leave to appeal the order granting the new trial. Plaintiff maintains defendant did not timely do so here. Plaintiff further points out that even if defendant’s request was timely, we denied the request. (Craigmiles v. Egan (4th Dist. February 5, 1992), No. 4 — 91—0735 (order).) In Robbins v. Professional Construction Co. (1978), 72 Ill. 2d 215, 380 N.E.2d 786, the supreme court held that a party seeking to attack the grant of a new trial after the appellate court had denied leave to appeal from that order and after the new trial had taken place was barred from raising that issue.

At all times pertinent, Supreme Court Rule 306(a)(1) has provided that appeal from an order in a civil case granting a new trial may be taken to the appellate court upon leave granted by that court upon a petition filed in that court “in accordance with the requirements for briefs within 30 days after the entry of the order.” (Emphasis added.) (134 Ill. 2d R. 306(a)(l).) Supreme Court Rule 306(e) then states that time limit “may be extended upon notice and motion, accompanied by an affidavit showing good cause, filed before expiration of the original or extended time.” (134 Ill. 2d R. 306(e).) Plaintiff asserts that the following sequence of events indicates that defendant’s petition for leave to appeal from the grant of the new trial on damages only was untimely: On June 26, 1991, a judgment was entered on the verdict in the first trial; on July 23, 1991, plaintiff’s motion for a new trial as to damages was on file; on July 24, 1991, defendant’s motion for new trial was on file; on August 20, 1991, a docket entry shows plaintiff’s motion was allowed; and on September 10, 1991, a docket entry was made stating as follows:

“Docket entry of August 20, 1991 consolidated with docket entry of this date. Plaintiff’s motion for a new trial is allowed as to damages only and denied in all other respects. Plaintiff’s motion for punitive damages included in motion for new trial denied. Defendant’s claim for setoff allowed as to the amount paid to plaintiff by defendant prior to trial. Defendant’s post-trial motion denied in all respects.”

To continue this sequence of events, on October 10, 1991, the petition was filed in the appellate court seeking an extension of time to file petition for leave to appeal; on October 10, 1991, the appellate court granted defendant an extension of time to file a petition for leave to appeal until January 15, 1992; on January 15, 1992, a petition for leave to appeal was filed in the appellate court; and on February 5, 1992, the appellate court denied defendant leave to appeal. Craigmiles v. Egan (4th Dist. February 5, 1992), No. 4 — 91—0735 (order).

Plaintiff correctly points out that under Supreme Court Rule 306, petitions for leave to appeal from an order granting a new trial or requests in the appellate court for extension of the time for filing must be filed within 30 days of the entry of the order granting a new trial. (Odom v. Bowman (1987), 159 Ill. App. 3d 568, 511 N.E.2d 1265; Buckland v. Lazar (1986), 145 Ill. App. 3d 436, 495 N.E.2d 1254.) Plaintiff contends that the purported allowance of plaintiff’s motion for a new trial on August 20, 1991, started the running of the 30-day period of Rule 306(a)(l), and that period had expired long before defendant filed a motion in this court for an extension.

Plaintiff’s theory of the expiration of the 30-day period requires careful consideration. On August 20, 1991, when the docket entry indicating allowance of plaintiff’s motion was entered, defendant’s motion for a new trial was pending. The court made no reference to any ruling on it until the docket entry of September 10, 1991. Had the court allowed defendant’s motion for a new trial, the trial would have included the question of liability. Thus, the court’s ruling upon whether a new trial should be granted and, if so, the issue to be tried was incomplete at the time of the August 20, 1991, docket entry. In recognition of this problem, the circuit court phrased its August 20 order in such a way as to make a complete ruling. We hold that the 30-day period of Rule 306(e) began to run on September 10, 1991, and defendant’s petition for extension of time was filed within that period. Accordingly, a valid petition for leave to appeal was ultimately filed. We need not decide whether Ford is still the law or whether a failure to seek leave to appeal would have waived any error in the grant of the new trial.

We next consider whether our prior refusal to grant defendant leave to appeal from the order granting a new trial on the question of damages only is to be given res judicata effect, thus prohibiting us from considering that question now. In Robbins, a plaintiff in a wrongful death case received a verdict for what was apparently a small amount for damages. The circuit court granted that plaintiff a new trial on the question of damages. The appellate court denied leave to appeal, and a much larger sum was awarded at the second trial. On appeal to the appellate court, in a split decision, that court held that its prior refusal to grant appeal from the order granting the new trial on damages precluded raising that issue on appeal after the second trial. Robbins v. Professional Construction Co. (1977), 45 Ill. App. 3d 524, 529, 359 N.E.2d 1121, 1125.

After granting leave to appeal in Robbins, the supreme court upheld the holding that the denial of leave to appeal the grant of the new trial barred further consideration of that issue. The supreme court pointed out that the defendant, in seeking leave to appeal to the appellate court the order granting a new trial, had failed to follow the requirements of Supreme Court Rule 306 and that the appellate court had “dismissed the appeal.” (Robbins, 72 Ill. 2d at 219, 380 N.E.2d at 787.) The appellate court opinion had indicated that it denied the petition for leave to appeal. (Robbins, 45 Ill. App. 3d at 529, 359 N.E.2d at 1125.) In any event, the supreme court upheld the appellate court’s refusal to consider the propriety of the grant of the new trial. The court reasoned that if further consideration of the grant of a new trial were permitted, Supreme Court Rule 306(a)(2) (58 Ill. 2d R. 306(a)(2)) would bring up all of the rulings of the trial court again, and no reason existed to reconsider the grant of the new trial after the appellate court had refused to grant leave to appeal. The court concluded that due process permitted the perfunctory consideration that would be given to the question of whether to grant leave to appeal by the appellate court. Robbins, 72 Ill. 2d at 223, 380 N.E.2d at 789.

Plaintiff notes that the second district has recently followed the Robbins ruling in In re Marriage of Clark (1992), 232 Ill. App. 3d 342, 597 N.E.2d 240. There, the court stated summarily, “our denial of [petitioner’s] earlier petition for leave to appeal the trial court’s order for a new trial pursuant to the provisions of Supreme Court Rule 306 is not subject to relitigation before this court.” (Clark, 232 Ill. App. 3d at 346, 597 N.E.2d at 243, citing Robbins, 72 Ill. 2d at 222, 380 N.E.2d at 789.) The second district provided no further discussion on this issue.

The fifth district recently discussed Robbins in a case that is factually similar to the instant case. In Koenig v. National Super Markets, Inc. (1992), 231 Ill. App. 3d 665, 596 N.E.2d 1329, appeal denied (1992), 146 Ill. 2d 630, 602 N.E.2d 455, the court dealt with the issue and held the prior denial of defendant’s Rule 306 petition did not foreclose defendant from raising the same issues on appeal following a second trial.

In Koenig, a jury awarded plaintiff $100,000 but found her 85% contributorily negligent and reduced her award to $15,000. The trial court granted plaintiff’s motion for a new trial on the issue of damages only. Defendant had also filed post-trial motions seeking a judgment n.o.v. or, in the alternative, seeking a new trial on the issue of liability and damages. The trial court denied defendant’s motions. Defendant then filed a petition for leave to appeal pursuant to Supreme Court Rule 306, and the fifth district denied defendant’s petition.

A second trial on damages only resulted in a verdict in favor of plaintiff for $90,000 and found plaintiff 33½% negligent. Defendant appealed raising a number of issues, including the propriety of the original grant of a new trial.

On appeal, the Koenig court found that the denial of defendant’s prior Rule 306 petition for leave to appeal did not preclude defendant from raising the issues contained therein on appeal after the second trial. The court cited People v. Vance (1979), 76 Ill. 2d 171, 390 N.E.2d 867, decided subsequent to Robbins, which held:

“Our denials of leave to appeal, of course, carry no connotation of approval or disapproval of the appellate court action, and signify only that four members of this court, for reasons satisfactory to them, have not voted to grant leave.” (Vance, 76 Ill. 2d at 183, 390 N.E.2d at 872.)

Following this logic, the Koenig court determined that its previous order denying defendant’s petition meant “only that at least two members of a three-member panel voted not to grant leave ‘for reasons satisfactory to them.’ The court did not address the merits of the case.” Koenig, 231 Ill. App. 3d at 667, 596 N.E.2d at 1332.

Most persuasive with us is the fairly recent decision in Kemner v. Monsanto Co. (1986), 112 Ill. 2d 223, 492 N.E.2d 1327. That case concerns not the well-known rule set forth in Vance that refusal by the supreme court to grant leave to appeal has neither precedential nor res judicata value, but the res judicata effect of the denial by the appellate court of a petition for leave to appeal pursuant to Supreme Court Rule 306(a)(l)(ii) (94 Ill. 2d R. 306(a)(l)(ii)) permitting petitions for leave to appeal to the appellate court from orders denying motions to dismiss upon forum non conveniens grounds.

In Kemner, a defendant sought an original writ of mandamus from the supreme court to compel the circuit court to grant a motion to dismiss on forum non conveniens grounds after the circuit court had refused to do so. Supreme Court Rule 306(a)(l)(ii) had not yet been enacted. That defendant then filed another motion to dismiss on the same ground, and that was denied. By then, Supreme Court Rule 306(a)(l)(ii) was in force, and the defendant petitioned the appellate court for leave to appeal. That petition was denied, and the supreme court denied appeal from the appellate court order of denial. That defendant then filed a motion in the trial court for reconsideration of the forum non conveniens motion, adding additional information. The circuit court denied the motion, and the appellate court dismissed for want of jurisdiction that defendant’s petition for leave to appeal as untimely. The supreme court granted leave to appeal from that order.

The Kemner court held that the appellate court had erred in dismissing that plaintiff’s motion for reconsideration. The court deemed the motion to reconsider to in fact be a new motion, on which basis it was timely. The court then addressed the question of whether the prior denial of leave to appeal from the circuit court’s earlier denial of a forum non conveniens motion barred reconsideration of that issue, stating:

“The res judicata effect for which the plaintiffs here argue was explicitly rejected in Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, [463 N.E.2d 792,] a case which arose out of the same occurrence as the present case. In Lowe, the defendant railroad filed a petition for mandamus and a petition for leave to appeal to this court concerning the forum non conveniens rulings of the circuit court. Plaintiffs argued that since both petitions were denied by this court, the forum non conveniens issue was foreclosed. The Lowe court disagreed, reasoning that ‘the denial of a petition for an extraordinary writ, or the denial of a petition for interlocutory review, means only that a majority of the upper court could not be mustered in favor of the petition. It is not an exotic form of res judicata.’ (124 Ill. App. 3d 80, 90[, 463 N.E.2d 792].) We agree with the reasoning of the appellate court in Lowe and conclude that Monsanto had a right to file a petition for leave to appeal from the December 13, 1984, order denying its motion to reconsider.” Kemner, 112 Ill. 2d at 240-41, 492 N.E.2d at 1335.

Supreme Court Rule 306 provides for discretionary appeal from not only grants of new trials and denials of forum non conveniens motions, but also for such appeals from a variety of other interlocutory orders. Giving res judicata effect to denials of appeal from certain of those orders and not as to others would not appear to be sensible. We interpret the quoted language from the Kemner opinion to hold that denials of leave to appeal under Supreme Court Rule 306 are no bar to further raising of the issues involved. Accordingly, to the extent that the foregoing is inconsistent with the holding in Robbins, we conclude that the Kemner opinion overruled Robbins sub silentio. The questions concerning the rulings of the circuit court on the motions for a new trial are before us on this appeal.

The circuit court’s grant of a directed verdict to plaintiff on the question of liability at the conclusion of the evidence in the first trial was fully supported by the record. The collision was one where the front end of an automobile driven by defendant crashed into the rear of one driven by plaintiff at an intersection protected by stoplights. The vehicles were travelling in an easterly direction on a Springfield street. Defendant testified (1) she was searching for a certain business; (2) as she approached the intersection she. was driving at a speed of 30 to 35 miles per hour; (3) she saw the light turn green; (4) she first noticed plaintiff’s vehicle was not moving when she was within 30 feet of it; and (5) she then applied her brakes and was moving at a rate of approximately 15 to 20 miles per hour when her vehicle struck plaintiff’s vehicle. No evidence of any other witness was helpful to defendant although one witness indicated that some dust may have been floating in the air at the time of the collision because a street sweeper had been working in the area. However, defendant did not complain of obstructed vision.

The mere existence of a rear-end collision is insufficient to make a determination, as a matter of law, that the driver of the rear car was negligent, or that the driver of the front car was in the exercise of due care. (Burgdorff v. International Business Machines Corp. (1979), 74 Ill. App. 3d 158, 163, 392 N.E.2d 183, 186.) However, here no evidence indicated that plaintiff made a sudden stop or a veer from the line of traffic which she was in. Plaintiff testified she had removed her foot from her brake at the time of the collision. Defendant argues that this misled her in some way because, upon plaintiff’s release of her foot brake, the rear brake lights went off. Defendant may have assumed plaintiff would accelerate upon removal of her foot from the brake but any such assumption was not reasonable. Plaintiff had no duty to accelerate rapidly when the light changed, and defendant, who had full view of plaintiff’s vehicle, must be considered negligent in not controlling her speed sufficiently so as to avoid hitting plaintiff’s car. (See Ziekert v. Cox (1989), 182 Ill. App. 3d 926, 933, 538 N.E.2d 751, 756.) The evidence here so favored the plaintiff that no verdict finding defendant free from fault and plaintiff negligent could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.

The question of whether the court should have granted a new trial on the question of damages after the verdict on the first trial was received is more complicated. The evidence was undisputed that plaintiff had a preexisting back injury. She maintains it was substantially aggravated. The jury verdict for $9,150 was itemized to grant $5,000 for aggravation of a preexisting injury, $3,750 for medical expenses, $400 for lost earnings, and nothing for pain and suffering or disability and disfigurement. The court deemed these damages inadequate.

A jury has substantial discretion in determining the amount of damages, but a new trial may be awarded if the damages are manifestly inadequate, if clear proof of the damages has been ignored, or if the award bears no reasonable relation to the loss suffered. (Hollis v. R. Latoria Construction, Inc. (1985), 108 Ill. 2d 401, 407, 485 N.E.2d 4, 6.) Plaintiff maintains the circuit court did not abuse its discretion in granting a new trial on damages, particularly in view of the fact that the jury found some aggravation of substance but found absolutely no additional pain and suffering occurred. We disagree, concluding that the amount and itemization of the verdict was supported by the evidence, and the trial court abused its discretion in granting a new trial on that basis.

Comprehensive recitation of the evidence is necessary to determine whether the evidence justified the low amount of the verdict and its failure to award anything for pain and suffering. We first consider plaintiff’s testimony relating to her damages, which is as follows: (1) she was 43 years old at the time of trial and had been employed as a “care giver” at a nursing home for approximately six months; (2) she had previously been employed as a housekeeper and care giver at other such facilities and was doing that kind of work at the time of the accident; (3) prior to the accident, in 1984 or 1985, she was working as a cook at Menard Convalescent Center (Menard) and hurt her lower back while lifting some trays; (4) she later sought treatment from Dr. Paul Walton, a chiropractor; and (5) her complaints when she first saw Walton in September 1986 included “slight pains going through my shoulders and down my arms and some numbness and tingling, more pain on my lower back.”

Plaintiff then testified that (1) after Walton treated her with ultrasound, heat, and manipulation, her neck and shoulders “got somewhat better,” and her lower back “got better, but it took longer”; (2) while Walton was treating her for her Menard injury, he sent her to get an “MRI” (magnetic resonance imaging) of her cervical spine in October 1986; (3) she told Walton in October 1986 that, in addition to her low-back pain, her neck “hurt some, that [she] had some pain but not much”; (4) she said the pain with regard to her neck and shoulders was “going down here through my neck and on to my shoulders and down into the lower part of my arms”; and (5) prior to February 1987, she had “small, dull aching pains” in her neck and shoulders, in addition to the sharper, more severe pains in her lower back.

Plaintiff said that immediately after the impact: (1) her glasses flew off of her face, hit the windshield, and bounced back to the backseat; (2) she hit her arm on the gearshift; (3) she felt “shaky”; (4) she told a woman who came up to her car after the collision that “I think I’m all right, I’m not for sure”; and (5) following the accident, plaintiff talked to defendant, the reporting police officer, and Donna Millmore, an occurrence witness, and on each occasion, she stated she thought she was fine except that she bumped her wrist. She refused to be taken to the hospital.

Plaintiff further testified that after leaving the scene of the accident, she went to work and then to an appointment she had previously scheduled at her chiropractor’s office. She said she had pain in her neck and shoulders, and Walton took an X ray and gave her a cervical collar. Plaintiff testified that after the accident she felt “a lot of pain through my neck and shoulders and down my arms, more severe than they were before the accident.” She said, starting the day after the accident, she had numbness and tingling in both arms, headaches, and her lower-back pain became worse.

Plaintiff testified that she continued treatment with Walton, her chiropractor, and he subsequently referred her to Dr. Trudeau and Dr. Robert Hayner, a neurosurgeon. On June 28, 1987, Hayner performed surgery on her upper back. She said she was discharged from the hospital on July 3, 1987, and was off work for three weeks. She said the pain was “a little better, but not much” after the surgery, and she continued to be treated by Walton for “a few months.” She said her neck gradually got better, but she was not 100% better. She claimed to be weaker and unable to lift anything heavy. She said she still had some pain and stiffness. She indicated she could not dance the way she had before the accident, and it hurt her shoulders to throw a frisbee.

Plaintiff testified she had medical bills from the “MR Center” for $1,141, $2,250 to Hayner, $2,437.37 to Memorial Medical Center, $692 to Trudeau, and $4,519 to Walton’s clinic, all resulting from the accident. She said her total lost wages following the surgery were $420.

On cross-examination, plaintiff admitted she had been treated by Walton since September 1986, and in her “Application for Treatment” with him, which she completed on September 28, 1986, she indicated she was experiencing “a dull pain in the lower back and shoulders and neck.” She also stated on that form “when lifting heavy objects, it pulls on my back.” She circled the neck area and lower-back area on a diagram of a human and indicated there was “tightening” in the neck area. Finally, also on the form, she wrote in that she “could not move heavy objects” at home or at work, “could not do sports,” and had to “sleep sitting up.” She testified that she had been involved in a prior motor vehicle accident as a child.

Walton then testified as follows: (1) he first saw plaintiff in September 1986, when she came to his office complaining of low-back pain, pain in her shoulders and neck, and pain in her left leg; (2) she also complained at that time of experiencing a “tightening” across her neck and shoulders and that she had been in a prior car accident as a child; (3) he initially treated her with ultrasound and diathermy as well as manipulation; (4) in October 1986, he referred her to Dr. Joseph Norfray for an MRI of her cervical spine; and (5) the MRI scan revealed (a) grade 1 interior slippage of C6 on C5, (b) compression of the thecal sac by the posterior inferior aspect of C5, (c) degenerating disc at C5-C6, which tracks posteriorly and does not extend past the vertebral body of C5, and (d) moderate spinal stenosis at the level of C5-C6 related to both spondylolisthesis and prominence of the ligamentum flavin posteriorly.

Walton also stated (1) a CT scan was also performed on plaintiff’s lumbar area which revealed “normal” disc space levels, and was reported to be clinically insignificant; and (2) based on Norfray’s findings, Walton continued his treatment of ultrasound, diathermy, and manipulations. On direct examination Walton testified that, during the months of November 1986 through January 1987, plaintiff’s symptoms were beginning to resolve and her condition was improving. He admitted on cross-examination, however, that his medical records did not reveal he was going to release her or that her condition was improving. He agreed there were no references in his records to lumbar spine X rays, and the record showed three references to cervical spine X rays during that period.

Walton testified that on February 25, 1987, the day of the accident, she kept a previously scheduled appointment to see him. He said she came in that day complaining of pain resulting from the accident she had that day. He said he took X rays of her back and neck and placed her in a cervical collar. He said she reported that she had “on and off” sharp pain and a lot of stinging in her cervical spine.

A report of a second MRI performed by Dr. Sung-Ho-Song on March 4, 1987, was admitted into evidence. It indicated that this scan demonstrated a “slight” increase in the stenosis at C5-C6 when compared with the previous MRI on October 9, 1986. Sung-Ho-Song also noted subluxation at C5 and C6, with posterior subluxation of C5 on C6. The report stated that with increasing subluxation, there is an increase in the degree of impingement upon the thecal sac anteriorly and posteriorly at the same level. Finally, the report indicated there was degenerative disc disease at C5-C6. The report did not indicate whether the degenerative disc disease had changed since the October MRI.

Walton testified that based upon the report from Sung-Ho-Song, he diagnosed plaintiff’s condition as severe cervical sprain with increased subluxation and stenosis. At that time he did not refer her to a neurosurgeon but did refer her to Dr. Trudeau, who performed an electrodiagnostic examination (EMG) with reported C5-C6 radiculopathy, which means she had nerve impingement at that level. Walton stated that Trudeau indicated in his report that he could not, however, provide a percentage differentiation between the level of plaintiff’s problems in her cervical spine before and after the motor vehicle accident.

On June 1, 1987, a third MRI of plaintiff’s cervical spine was performed which reported essentially identical findings to the MRI taken in March 1987. Walton said he then referred plaintiff to Dr. Hayner, a neurosurgeon, who subsequently performed a C5-C6 diskectomy in June 1987.

Walton testified that following the surgery, he continued treating plaintiff for a cervical sprain. He stated the purpose of his chiropractic treatment was to treat the muscle injury rather than the condition which necessitated surgery. He said in October 1987, plaintiff achieved maximum medical improvement and was “as good as [she was] probably ever going to get.” Plaintiff’s last visit with Walton was in October 1987.

Walton testified that in his chiropractic opinion the automobile accident in February 1987 aggravated plaintiff’s preexisting cervical stenosis and the subluxation of the cervical spine. He was also of the opinion that the accident caused plaintiff pain and caused muscle and ligament damages. He considered plaintiff’s condition to be permanent and indicated she was now more susceptible to chronic neck pain and degeneration.

On cross-examination, Walton acknowledged that when plaintiff came to his chiropractic clinic in September 1986, she was seeking lasting correction of her neck, back, and shoulder problem. He said her major complaints at that time were pain in the neck, shoulders, low back, and left leg. He said she did not differentiate her level of pain between her low back and cervical area on her application for treatment. He testified the only area of pain and discomfort indicated on the human diagram on an application for treatment which she had filled out was the cervical area. He noted the application listed that plaintiff had pain upon lifting or walking for long periods of time and that this was affecting her housecleaning duties both at home and at work. He also noted the application indicated plaintiff could not engage in sports activities and had to sleep sitting up.

Walton testified that the notation of “hand PNN” on the application for treatment could have been his indication for tingling or paresthesia in the hand. He acknowledged that plaintiff’s condition at that time was one of chronic pain and that it was possible the pain was congenital.

Walton testified that with respect to the Norfray report, the spinal stenosis condition was compressing the spinal cord. He conceded the overall findings of the Norfray report revealed an abnormal condition of the cervical spine which could cause symptoms of muscle ache and tingling and numbness as well as reversal of the normal cervical lordosis. He further admitted that the degenerative disc disease found at C5-C6 would be consistent with the problems plaintiff had been experiencing over the last two years.

Walton testified on cross-examination that since September 1986, he had seen plaintiff on 32 occasions, and on 29 of these occasions he performed cervical traction. He also acknowledged that he performed three cervical X rays between September 1986 and the time of the plaintiff’s February 1987 accident yet performed no lumbar X rays. He nevertheless maintained that despite this treatment to the cervical area he was primarily treating plaintiff for a low-back condition.

Plaintiff presented the evidence deposition of Dr. Sung-Ho-Song, the radiologist who interpreted the March and June 1987 MRI reports. Sung-Ho-Song testified that he compared the March 1987 MRI and the report from the October 1986 MRI and found the same impingement condition existed in both. He further stated that the 1987 MRI revealed the same compression of the thecal sac, the same degenerative disc disease, and the same reversal of the normal cervical lordosis as was demonstrated in the October 1986 MRI. Although Sung-Ho-Song was not able to offer an explanation as to what caused the stenosis or the subluxation, he was of the opinion that the stenosis could be the product of a long-term degenerative disc disease.

On cross-examination, Sung-Ho-Song admitted the increase in subluxation demonstrated in the March 1987 MRI was only “slight.” He also testified on direct examination that the level of stenosis and nerve root impingement had increased since the October 1986 MRI scan, but that this was only an assumption made during his deposition and was not found in his report. He said such a determination would have been made from X rays rather than MRI reports.

Dr. Robert Hayner, the neurosurgeon who performed the plaintiffs neck surgery, testified he first saw plaintiff on June 15, 1987, on referral from Dr. Walton. He stated that on that visit, plaintiff complained of pain in her upper left extremity and pain in her neck following an automobile accident four months earlier. His physical examination of plaintiff was normal except for subjective sensory loss along the C6 dermatome on the left and weakness of the left bicep. His examination revealed no positive findings with the right extremities.

Hayner diagnosed plaintiff’s condition as a herniated disc at C5 through C6 on the left. On June 26, 1987, he performed an anterior diskectomy at C5-C6. He released plaintiff from the hospital on July 2, 1987, with no restrictions. Hayner testified that plaintiff was to return for an evaluation on a monthly postoperative basis, but she never did return for evaluation following her discharge.

On cross-examination, Hayner reported that plaintiff did not inform him of any problems with her neck prior to the February 25, 1987, accident. He said he was also unaware that plaintiff had been diagnosed before the accident as having degenerative disc disease, spondylolisthesis, a reversal of lordotic curve, and stenosis. In addition, Hayner said he was unaware that plaintiff had undergone an electromyogram by Trudeau and had been diagnosed as having mild C5-C6 radiculopathy on the right. He concluded his testimony by stating that his only basis for concluding the herniated disc was caused by the February 1987 accident was what plaintiff told him.

Plaintiff’s husband, Norman Craigmiles, then testified that before her 1987 accident, plaintiff had been active in sporting activities and had only lower-back pain. He testified that plaintiff could get around fine, but after the accident she had pain in her shoulders and numbness in the arms and could not do a lot of household things. He said he noticed a large knot on the back of her neck after the accident. He also stated that since the accident, they had been unable to go camping, because she could not get around and unpack supplies or pick up anything heavy. He also stated that she had to quit participating in the Special Olympics because of the accident. Prior to the accident she helped in the Special Olympics in games, but afterward, could only keep score.

Mary Nelson, a former co-worker and friend of plaintiff, testified that she had known plaintiff for 20 years and that plaintiff had complained about arm and neck pain only since the February 1987 accident. She stated that prior to the accident plaintiff was only somewhat limited in her activities due to her low back. She testified that since the .accident she had heard plaintiff say she could not participate in sports.

Defendant presented Dr. William Schroeder, an orthopedic surgeon who specializes in spine surgery and who examined plaintiff in November 1990. He also conducted a review of plaintiff’s medical records. Schroeder testified that during his examination of plaintiff, she complained of trouble sleeping, neck pain, pain in her shoulders and right arm, and numbness in the middle fingers of her right hand. He said his physical examination revealed no difference in strength from left to right extremities and found reflexes to be symmetrical. Schroeder testified that he found “symptom magnification” during examination of plaintiff. He stated she had more motion when he distracted her than she did when she was not distracted. Schroeder stated that, although plaintiff did suffer some pain, he was of the opinion that she was not disabled. He also testified she was suffering from degenerative disc disease which was aggravated by the February 25 accident. He testified the changes in the degree of plaintiff’s C5-C6 subluxation, from October 1986 to March 1987, were minimal and they were consistent with a normal progression of degenerative disc disease.

The last person to testify was plaintiff’s job supervisor, Linda Moss. She testified that she had repeatedly asked plaintiff for a written statement from her doctor confirming that plaintiff had lifting restrictions. She said she asked plaintiff to provide this information on four separate occasions, including during her initial job interview. She said that plaintiff never provided the statement. On cross-examination, Moss admitted that plaintiff had indicated on her application that she would not be able to do any heavy lifting.

Citing Klatt v. Commonwealth Edison Co. (1965), 33 Ill. 2d 481, 211 N.E.2d 720, Lombard Park District v. Chicago Title & Trust Co. (1968), 103 Ill. App. 2d 1, 242 N.E.2d 440, and Greco v. Coleman (1985), 138 Ill. App. 3d 317, 485 N.E.2d 1118, plaintiff points out the well-accepted rule that a trial court has substantial discretion in determining whether to grant a new trial. Klatt and Lombard Park District both concern whether rulings on evidence permit a trial court to grant a new trial. In Greco, as here, the issue was whether the trial court properly granted a new trial on damages because of inadequacy or inconsistency of the award of damages.

The Greco court stated:

“It is well established that whether a motion for a new trial is to be granted is within the sound discretion of the trial court and should not be disturbed unless a clear abuse of discretion appears in the record. (Crump v. Universal Safety Equipment Co. (1979), 79 Ill. App. 3d 202, 214, 398 N.E.2d 188, 197; Brown v. Johnson (1978), 60 Ill. App. 3d 76, 78, 378 N.E.2d 757, 758-59.) Since, as a general rule, a new trial will not be granted on the ground that damages in personal injury actions are considered to be inadequate, appellate review of the granting of a new trial limited solely to the issue of damages is essentially a review of the trial court’s discretion. An abuse of discretion will be found where there is no recognizable basis in the record to support the granting of a motion for a new trial. (Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 647-48, 432 N.E.2d 1267, 1272.) After carefully reviewing the record on appeal, we cannot say that the trial court abused its discretion.” (Greco, 138 Ill. App. 3d at 322, 485 N.E.2d at 1121.)

Even by the foregoing standard, the circuit court abused its discretion here in granting a new trial as to damages because the jury could have concluded that plaintiff suffered no substantial pain and suffering after the collision which, because of her preexisting condition, she would not have suffered anyway and damages awarded otherwise covered the aggravation of her injury. Thus, the court had no basis recognized in the law upon which to grant a new trial on damages.

Here, the jury could have found the most persuasive medical testimony to be that of Dr. Schroeder, when he testified that in his opinion, although the 1987 collision did aggravate plaintiff’s preexisting subluxation from October 1986 (before the collision) to March 1987, the changes in the degree of subluxation after the collision were minimal and were consistent with the normal progression of degenerative disc disease. Dr. Sung-Ho-Song, the radiologist who interpreted the MRI scan, admitted that the post-accident film showed the same conditions as the films taken in October 1986 and that plaintiff’s stenosis could be the product of long-term degenerative disc disease.

The jury could also have given substantial significance to Dr. Schroeder’s statement that plaintiff magnified her limitations of movement when being questioned about a specific movement. Considering that testimony, and the amount that plaintiff had to gain by maximizing her injuries, the jury could have given little weight to her statement about how her pain was greater after the collision.

Even the testimony of Dr. Walton was somewhat impeached. Bias was shown by evidence that, as often is the case, he had not been paid in full and had a lien upon any recovery plaintiff would make. He testified that his primary treatment of plaintiff before the collision was to her lower back. He said, however, he had taken three X rays of the upper-back (cervical) area during that time and 29 of the 32 treatments he had given her during that time involved manual cervical traction while no X rays of plaintiff’s lower spine were taken then and the CT scan of that area was deemed insignificant.

While the jury was in no way required to diminish the credence it gave to the testimony of plaintiff and Dr. Walton, it was entitled to do so. The fact that the jury found aggravation of the prior injury did not require it to find the existence of new pain and suffering beyond that which plaintiff would have from her existing condition. In Perry v. Storzbach (1990), 206 Ill. App. 3d 1065, 565 N.E.2d 211, a plaintiff was awarded $35,000 for disability and nothing for pain and suffering for aggravation for a preexisting injury. A treating physician testified that in his opinion the injuries plaintiff complained of resulted from the automobile collision giving rise to the litigation. However, when informed of the previous condition, he stated he would conclude that the injuries had multiple causes. The circuit court’s denial of a new trial was upheld on appeal.

Similar decisions upholding denials of new trials where damages have been awarded for injuries which ordinarily would cause pain when preexisting injuries producing the same type of pain existed have been upheld in Elliott v. Koch (1990), 200 Ill. App. 3d 1, 558 N.E.2d 493, Paulan v. Jett (1989), 190 Ill. App. 3d 497, 545 N.E.2d 1377, and Griffin v. Rogers (1988), 177 Ill. App. 3d 690, 532 N.E.2d 591. See also Chrysler v. Darnall (1992), 238 Ill. App. 3d 673, 606 N.E.2d 553.

Cases cited by plaintiff in support of her contention that the damages were inadequate as a matter of law are materially different. Many, such as Hollis, concern a tremendous disparity between the severity of the injury unquestionably resulting from the occurrence involved and the amount of the award. Others do concern the situation here where some award was made for medical expenses without any award for pain and suffering. They differ from the situation here principally because there, the jury could not have found that all pain and suffering of substance was the result of a former injury. Kumorek v. Moyers (1990), 203 Ill. App. 3d 908, 561 N.E.2d 212.

In Healy v. Bearco Management, Inc. (1991), 216 Ill. App. 3d 945, 576 N.E.2d 1195, and Hinnen v. Burnett (1986), 144 Ill. App. 3d 1038, 495 N.E.2d 141, in addition to the lack of a former injury which could have caused pain, the jury clearly awarded damages for pain-relieving medicine but gave nothing for pain. In Rice v. Merchants National Bank (1991), 213 Ill. App. 3d 790, 572 N.E.2d 439, in a situation where the plaintiff had no prior injury likely to have caused pain, the jury awarded $48,000 for medical expenses but nothing for pain and suffering. In Schranz v. Halley (1984), 128 Ill. App. 3d 125, 469 N.E.2d 1389, the minor on whose behalf suit was brought had received a basal skull fracture, a concussion, and cerebral contusions in a fall from a second story. The effect of the verdict was to award her nothing for pain and suffering.

We do not agree with plaintiff that other grounds support her being granted a new trial. She complains of the admission at trial of testimony by her job supervisor when that person testified she had requested that plaintiff furnish documentation for her request for a weight-lifting limitation in regard to her job and plaintiff had not furnished it. The evidence had some slight relevance to the extent of plaintiff’s injuries and was not substantially prejudicial. Defendant also introduced evidence that, in a deposition, plaintiff had testified that at the time of the collision, after the light had turned green she noted that the westbound traffic had already proceeded forward. At trial plaintiff testified she could not remember whether this was so. The matter involved was of little significance but no substantial prejudice resulted. Those evidentiary rulings did not support the granting of a new trial.

The other claimed ground for a new trial was defense counsel’s statement in closing argument that “Dr. Walton got up on the stand and he raised his right hand and swore to tell the truth and stuck [out] his left hand and said but I want my money.” Reference to the pecuniary interest which a witness has in a case is a proper subject of comment. We find no substantial prejudice to plaintiff resulted from the manner in which defense counsel argued as to that issue. The circuit court did not abuse its discretion in permitting this argument.

We next discuss defendant’s contentions that she was entitled to a judgment or new trial after the second trial only to avoid the necessity of remandment to us to decide the issue if we are determined to have erred in reinstating the judgment after the first trial. The evidence at the second trial was sufficiently similar to that at the first trial to make further recitation of the evidence unnecessary. We deem a sufficient response to defendant’s contentions to be that while a jury could have reasonably made the award re made at the first trial, a jury could also have concluded that the aggravation of plaintiff’s injuries was severe, creating substantial pain and suffering and supporting the verdict. If the grant of the new trial was proper, we would affirm the judgment on the verdict of the second trial.

However, on the basis of our decision in regard to the judgment on the original verdict, we reverse the judgment appealed which was entered on the second verdict and remand to the circuit court of Sangamon County with directions to reinstate the judgment in favor of plaintiff in the sum of $9,150 plus costs entered on June 26, 1991.

Reversed and remanded with directions.

STEIGMANN, P.J., and COOK, J., concur.


author: JUSTICE SCARIANO

text:
    JOSEPH P. DeSANTIS, Indiv. and on Behalf of All Other Persons Similarly Situated, Plaintiff-Appellant, v. BRAUVIN REALTY PARTNERS, INC., et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1 — 91—3818
    Opinion filed June 8, 1993.

      Beigel & Sandler, Ltd., of Chicago (Herbert Beigel and Stephen D. Sharp, of counsel), for appellant.
    Shefsky & Froelich, Ltd., of Chicago (Barry B. Gross, Clifford E. Yuknis, Tami J. Diamond, and Cary E. Donham, of counsel), for appellees.
   JUSTICE SCARIANO

delivered the opinion of the court:

In early 1983, defendants Brauvin Realty Partners, Inc., Sheldon Lavin, Jerome Brault and Cezar Froelich formed Brauvin Real Estate Fund Limited Partnership 3 as an investment entity which would focus on commercial real estate. They served as its general partners and, at all times relevant to the issues in this case, controlled its promotion and subsequent operation. In an advertising brochure, the partnership was marketed as a conservative investment vehicle, which was likely to be profitable and would provide ancillary tax benefits through the distribution of the partnership’s passive investment loss tax deductions. The brochure also stated that the partnership’s principle objective was capital preservation, which it would achieve by purchasing fully occupied commercial buildings.

Before subscribing to the partnership, plaintiff Joseph DeSantis acknowledged that he received the partnership’s 112-page prospectus dated April 28, 1983. The cover of the prospectus contained the following prominent warning, written in upper-case letters and in larger than normal type: “THIS OFFERING INVOLVES RISK FACTORS CERTAIN OF WHICH ARE SUMMARIZED ON THE FOLLOWING PAGES, AND SUBSTANTIAL COMPENSATION TO THE GENERAL PARTNERS AND THEIR AFFILIATES.” It then directed the reader to turn to the sections entitled “Risk and Other Important Factors” and “Compensation Table” for a more thorough explanation of the warning. On its fifth page, the prospectus summarized the goals of the partnership and explained its investment strategy. While stating that two of the objectives of the partnership were the preservation and protection of capital, it immediately thereafter admonished that there were no assurances that these objectives would be fulfilled.

The prospectus went on to detail extensively the multiple risks involved in real estate investments in general, and warned that included in those risks was the potential that a limited partner could lose his or her entire investment. One of the risks it advised of was that the success of the venture depended on the occupancy rates of the buildings it purchased, and that the rates could be adversely affected by economic factors. It included a specific admonishment that although the partnership would attempt to assume existing mortgages in order to purchase properties, it reserved the right to employ a type of financing which greatly increased the risk of foreclosure of the properties it purchased. Under a subheading entitled “CONFLICTS OF INTEREST,” the prospectus also advised potential investors that the general partners would be compensated out of partnership assets, and it further provided an extensive schedule illustrating when and how much compensation the partners would be entitled to draw from its assets.

In November 1983, plaintiff subscribed for five units of the partnership, investing $5,000, and defendants, after selling nearly $8 million worth of interests in the partnership, closed the offering on December 31, 1983, and commenced operations. In 1984, the partnership purchased interests in three properties, one in Tulsa, Oklahoma, another in Palm Bay, Florida, and a third in Albuquerque, New Mexico. Although originally purchased with conventional financing, the Tulsa property’s loan was refinanced in 1988 when the partnership gave its lender a mortgage securing a negative amortization note. According to plaintiff’s explanation, this type of financing required the borrower to pay only interest “and bore an interest rate above the amount payable on that mortgage — accrued but unpaid interest being added to the principal.”

Beginning in 1984, the partnership began to pay quarterly distributions which were affixed to a report updating investors on its financial status. Each report provided a balance sheet, an indication of changes in its financial status and a short summary of the activity taken in the previous period. Each annual report, which included the statement of the partnership’s outside auditor, gave a more complete summary of its operations and its financial condition. The reports included references to the use of negative amortization financing in both the Tulsa and the Albuquerque properties, the current occupancy rates of the buildings to which the partnership had acquired title, and the extent of compensation and bonuses and other benefits paid to the general partners. Beginning with the first report sent to investors, they were continually apprised of the occupancy rate of the properties. For example, the report for the third quarter of 1984 stated that there was a sizable increase in the vacancy rate of one of the properties, and that defendants were aggressively attempting to lease the space. The subsequent reports presented similar disclosures concerning the occupancy rates of the properties for the years 1985 through 1989. Moreover, the partnership made similar disclosures in filings tendered, as required, to the Securities and Exchange Commission and the Internal Revenue Service (IRS) which were available to the public and to investors alike.

In 1989, for a reason not apparent from the record, the partnership defaulted on its indebtedness arising from the Tulsa property, and in satisfaction of the debt, surrendered its interest in the building to the mortgagee. On February 15, 1991, plaintiff filed the instant action, asserting, in a complaint framed as a class action, that defendants’ fraudulent misrepresentations caused him and others like-situated to purchase what later proved to be a virtually worthless security. He also alleged that defendants breached their fiduciary duties to their limited partners and were liable for negligently misinforming plaintiff of the risks inherent in the real estate investments they were to make.

In response, defendants filed a section 2 — 619 motion (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619) asserting that because plaintiff’s causes of action for fraud, fraudulent inducement, breach of fiduciary duty and negligence accrued in 1983, they were time-barred by the five-year limitations period of section 13 — 205 of the Code of Civil Procedure. (Ill. Rev. Stat. 1991, ch. 110, par. 13 — 205.) Defendants also claimed, via a section 2 — 615 motion (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615), that the complaint was insufficient as a matter of law. The trial court granted defendants’ motions holding, inter alia, that the action was time-barred and that defendants had no fiduciary duty to plaintiff. On appeal, plaintiff asserts that the trial court erred: (1) in its determination that his claims were stale, being beyond the limitations period; (2) in its holding that the plaintiff’s reliance on defendants’ purported fraudulent misrepresentations was unreasonable as a matter of law; and (3) in holding that he had not alleged facts sufficient to plead a cause of action for breach of fiduciary duty. However, because we affirm the circuit court’s decision as to the first of plaintiff’s assertions of error and hold that issue to be fully dispositive of the entire appeal, we find no need to address the latter two issues.

Plaintiff argues that the trial court erred when it found that all of his purported causes of action arising from defendants’ allegedly fraudulent solicitation of an interest in the limited partnership fell outside the applicable limitations period and thus were time-barred. The parties agree that all of his alleged claims were governed by the catch-all provision of section 13 — 205 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 13 — 205), which provides:

“[A]ll civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.”

(See also Munsterman v. Illinois Agricultural Auditing Association (1982), 106 Ill. App. 3d 237, 435 N.E.2d 923 (recognizing that an action for fraudulent misrepresentation is governed by the five-year limitations provision).) We are consequently called upon to decide when the five-year limitations period of section 13 — 205 began to run with regard to plaintiff’s various causes of action arising from defendants’ conduct.

“Generally, the statute of limitations begins to run from, and not until, the time that the cause of action or right accrues, i.e., when facts exist which authorize the bringing of an action.” (Schreiber v. Hackett (1988), 173 Ill. App. 3d 129, 131, 527 N.E.2d 412, 413; accord Berg & Associates, Inc. v. Nelsen Steel & Wire Co. (1991), 221 Ill. App. 3d 526, 532, 580 N.E.2d 1198, 1201 (“The statute of limitations begins to run when a party to be barred has the right to invoke the aid of the court and to enforce his remedy”), appeal denied (1992), 143 Ill. 2d 635, 587 N.E.2d 1011; Kozasa v. Guardian Electric Manufacturing Co. (1981), 99 Ill. App. 3d 669, 673, 425 N.E.2d 1137, 1141 (“The statute of limitations begins to run when facts exist which authorize the bringing of an action”).) In the case at bar, plaintiff’s complaint, filed in February 1991, alleged that defendants’ deceptive marketing brochure induced him to purchase a limited partnership interest in 1983, and after a downturn in the real estate market in the late 1980s, he lost money on his investment.

Applying the general rule, the trial court found plaintiff’s actions barred because he could have sought judicial redress for defendants’ alleged misrepresentations beginning, at the latest date, in 1985. It opined that the disclosures and warnings of potential risk contained in the prospectus, which plaintiff acknowledged in writing that he had received, as well as the multiple public filings made with the Securities and Exchange Commission and the IRS, truthfully provided all the information which plaintiff asserted was misstated in the sales brochure and was material to his decision to buy the partnership stake and which defendants, in their effort to induce him to purchase the interest, fraudulently withheld from him. Most important, the court emphasized the fact that plaintiff received quarterly and annual reports on the status of the partnership, all of which informed the limited partners of the occupancy status of the partnership’s three properties, the fact that the partnership financed the properties using negative amortization wrap-around balloon mortgages, and that defendants compensated their efforts on behalf of the partnership out of partnership assets. The trial court recognized that since plaintiff’s complaint centered on the fact that the sales brochure did not apprise potential investors of these three discrete pieces of information, his cause of action resulting from the alleged nondisclosure accrued as soon as he learned or reasonably could have learned that the sales brochure concealed these three allegedly material facts. The court fixed that date at sometime in 1984 or 1985 and found, accordingly, that the statute of limitations barred plaintiff’s claim arising from those alleged misrepresentations no later than 1990.

Plaintiff does not disagree on appeal that by the year 1984 or 1985, the reasonably diligent investor would have discovered that, in reliance on defendants’ false representations, he had been deceptively induced to purchase an interest in the limited partnership. Instead, he attempts to avoid the effect of the general rule, which would hold that his cause of action accrued no later than 1985, by contending that because damages are an element of the tort, even though he may have known that he was defrauded in 1984 or 1985, he could not bring an action for the fraudulent misrepresentation until such time that he suffered a monetary loss, which in this case did not occur until 1989.

Plaintiff’s argument exhibits a confusion over the difference between a cause of action and a remedy for the wrong it asserts. Although our supreme court has held that the elements of fraudulent misrepresentation include “ ‘damage to the [plaintiff] resulting from such [justifiable] reliance [on the truth of the intentionally false statement]’ ” (Gerill Corp. v. Jack L. Hargrove Builders, Inc. (1989), 128 Ill. 2d 179, 193, 538 N.E.2d 530, 536, quoting Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286, 402 N.E.2d 599), we do not read that to mean that a plaintiff who discovers that he has been defrauded by another is legally impotent until such time that he actually suffers a monetary loss. Rather, the courts will allow the as yet non-monetarily injured plaintiff to seek rescission of the contract that was procured by fraudulent means. “One induced to contract through the fraud of another may elect to rescind the contract and recover the consideration paid, or affirm the contract and recover the difference between the property received and what he or she would have received but for the fraud.” (Beaton & Associates Ltd. v. Joslyn Manufacturing & Supply Co. (1987), 159 Ill. App. 3d 834, 844, 512 N.E.2d 1286, 1292; see also Pinelli v. Alpine Development Corp. (1979), 70 Ill. App. 3d 980, 1000, 388 N.E.2d 943, 957; In re Estate of Neprozatis (1978), 62 Ill. App. 3d 563, 570, 378 N.E.2d 1345, 1351.) We may safely assume that plaintiff appreciated that rescission was available as a remedy for defendants’ purported fraud in light of the fact that the prayer for relief in his complaint included that specific remedy as one of the many to which he claimed himself entitled due to defendants’ conduct. Consequently, we hold that plaintiff had a cause of action no later than 1985 wherein he could assert that defendants defrauded him and seek, as a remedy therefor, rescission of the contract under which he purchased his partnership interest. Since in 1985 he had a right to rectify the torts defendants allegedly committed upon him, under the general rule of Shreiber, Kozasa and Berg & Associates, the five-year period of limitations in section 13 — 205 barred the action he brought in 1991.

The lone case plaintiff relies upon in order to support the proposition that his cause of action did not accrue until he suffered an actual injury, Bartholomew v. Crockett (1985), 131 Ill. App. 3d 456, 475 N.E.2d 1035, does not compel us to reach an opposite conclusion. In Bartholomew, the plaintiff appealed from the trial court’s grant of summary judgment and this court held that because whether she had suffered any actual injury could not be determined, “[her] cause of action for legal malpractice ha[d] not yet accrued and [was] therefore nonexistent.” (Bartholomew, 131 Ill. App. 3d at 465-66, 475 N.E.2d at 1042.) In that case, since her action was based on the negligence of another, the plaintiff had no cause of action until she suffered an actual loss due to that negligence. (See Jeffrey v. Chicago Transit Authority (1962), 37 Ill. App. 2d 327, 185 N.E.2d 384 (first Illinois case which rejected the applicability of the presumed or nominal damages doctrine in the context of a negligence action and held that actual damages are a necessary element of negligence).) In the absence of a cause of action, the plaintiff was not “authorize[,] [to] *** bring[] *** an action [in the circuit court].” (Schreiber, 173 Ill. App. 3d at 131, 527 N.E.2d at 413.) In contrast, as discussed above, plaintiff here could have sought the assistance of the court as early as 1983 in an effort to redress the wrong allegedly perpetrated by defendants.

In addition, our supreme court has held:

“A person who has been misled by fraud or misrepresentation is required, as soon as he learns the truth, to disaffirm or abandon the transaction with all reasonable diligence, so as to afford both parties an opportunity to be restored to their original position. If, after discovering the untruth of the representations, he conducts himself with reference to the transaction as though it were still subsisting and binding, he thereby waives all benefit of relief from the misrepresentations.” (Eisenberg v. Goldstein (1963), 29 Ill. 2d 617, 622, 195 N.E.2d 184, 186-87.)

Applying the Eisenberg doctrine of “waiver by conduct,” plaintiff, who harbored the knowledge that he had been defrauded for at least six years before indicating a desire to abandon the transaction, will be deemed to have waived his claim that defendants fraudulently induced him to buy the partnership interest. See Madison Associates v. Bass (1987), 158 Ill. App. 3d 526, 511 N.E.2d 690 (applying “waiver by conduct” doctrine to find waiver of counterclaim where the defendant knew of the fraud approximately four weeks before trial, but acted as though no fraud was perpetrated until filing fraud-based counterclaim at trial); Bulley & Andrews, Inc. v. Symons Corp. (1975), 25 Ill. App. 696, 323 N.E.2d 806 (holding that the plaintiff waived a claim based on fraud in the formation of the contract when it remained silent for nine months after it could have reasonably discovered the fraud).

In Kaiser v. Olson (1981), 105 Ill. App. 3d 1008, 1014, 435 N.E.2d 113, 118, the court cogently explained the purpose of the waiver rule:

“One is not permitted to lie back and speculate as to whether avoidance or affirmance of a contract will ultimately prove more profitable.”

Yet, this is precisely what plaintiff proposes we allow him to do. He intimates that he was entitled to retain possession of his interest in the real estate partnership while it returned some benefit to him (a periodic distribution and an investment loss deduction which lowered his Federal income tax burden), but that, because he was defrauded, this court should authorize a return of his investment in the partnership once it caused him to lose money. Plaintiff proposes that we turn the Illinois tort system into a commodity futures market, thereby allowing investors to hedge their investments, when possible, with a cause of action for fraud until such time that the investment sours, at which point they would be able to cash in on their preserved cause of action for fraud. Clearly, under the case law touching upon the accrual of an action for fraud or the doctrine of waiver, this is not permitted in Illinois. Accordingly, the trial court’s judgment dismissing plaintiff’s causes of action is affirmed.

Affirmed.

McCORMICK, P.J., and DiVITO, J., concur.

       In the trial court, plaintiff included paragraphs in his complaint alleging that defendants actively concealed the information relevant to his discovery of their fraud, and therefore, the applicable limitations period would be that contained in section 13 — 215 (Ill. Rev. Stat. 1991, ch. 110, par. 13 — 215) or, alternatively, that the circuit court should toll the running of the limitations period until February 14, 1990, when defendants informed the investors that the mortgagee had taken title to the property in Tulsa, Oklahoma, in satisfaction of the partnership’s obligation. However, in his appeal, plaintiff does not urge this court to apply section 13 — 215’s limitations period nor does he assert that the trial court erred in not invoking the doctrine of equitable tolling in order to deny defendant’s section 2 — 619 motion. Accordingly, we deem those issues to be waived. 134 Ill. 2d R. 341(e)(7); see also Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75, 256 N.E.2d 758.

       We further note that there is modern supreme court precedent (Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 185-86, 441 N.E.2d 324, 330-31) as well as a line of appellate court cases which omit reference to damages when detailing the elements of a prima facia case of fraud. E.g., Seefeldt v. Millikin National Bank (1987), 154 Ill. App. 3d 715, 506 N.E.2d 1052; Hamming v. Murphy (1980), 83 Ill. App. 3d 1130, 404 N.E.2d 1026; Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 390 N.E.2d 393; cf. Polelle & Ottley, Illinois Tort Law 294 & n.138 (1985) (“In Illinois nominal damages will be awarded for deceit even where no actual or compensatory damages have resulted from fraud”), citing Chalmers Motor Co. v. Maibaum (1914), 186 Ill. App. 147; Van Velsor v. Seeberger (1890), 35 Ill. App. 598, 601. But see Kelman v. University of Chicago (1988), 166 Ill. App. 3d 137, 142, 519 N.E.2d 708, 711 (“[D]amages or injury are a necessary element of the tort [of fraud]”), appeal denied (1988), 122 Ill. 2d 576, 530 N.E.2d 246.