source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    PETER ECKEL, Plaintiff-Appellee, v. CHARLES V. BYNUM et al., Defendants-Appellants.
    First District (5th Division)
    No. 1 — 91—2006
    Opinion filed December 11, 1992.

      David Delgado, of Burch & Delgado, of Chicago, for appellants.
    Nancy A. Thill, of Joan M. Ferraro & Associates, of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

This action was brought to foreclose a mortgage. The trial court entered a judgment of foreclosure for Gurpreet Padda, the plaintiff in the trial court. Defendants, Charles V. Bynum and Carol E. Bynum, appeal from the trial court’s judgment of foreclosure.

On January 22, 1973, Charles V. Bynum and his wife, Carol E. Bynum, executed a trust deed and installment note to their apartment building located at 5436 West Ferdinand, Chicago, Illinois. The statement “This is a Part Payment Junior Purchase Money Mortgage” appeared on the trust deed. On the note attached to the trust deed is typed, “This Instalment [sic] Note is secured by a Junior Purchase Money Mortgage.” On the trust deed, Charles and Carol Bynum are referred to as “Mortgagors” and the Chicago Title and Trust Company is referred to as “Trustee.” The trust deed refers to Reinhold Casper and his wife, Ruth B. Casper, as the persons that the installment note is paid to the order of. The installment note is made payable to the order of Reinhold Casper and Ruth B. Casper, and signed by Charles V. Bynum and Carol E. Bynum. The Bynums promised to pay to the order of the Caspers the principal sum of $37,000 with an interest rate of 71/2% per annum in installments of $343 or more per month, beginning February 1,1973, until the note is fully paid.

On April 25, 1989, for “Value Received,” Reinhold Lee Casper as personal representative of the estate of Ruth Casper, deceased, conveyed, transferred and assigned Ruth Casper’s interest in the trust deed and installment note to Gurpreet Padda (Padda).

Padda filed a complaint for foreclosure. On September 16, 1989, Carol Bynum (Carol) was personally served by a Cook County sheriff with summons and plaintiff’s complaint for foreclosure. Charles Bynum (Charles) was served with summons and plaintiff’s complaint for foreclosure by a Cook County sheriff, by substitute service on his wife, Carol, on September 16, 1989. On October 10, 1989, Charles filed an appearance which stated that “The undersigned, as attorney, enters the appearance of the defendant [sic], Charles V. Bynum and Carol E. Bynum.” Charles is not an attorney.

On November 29, 1989, plaintiff brought a motion to strike “defendants’ answer” which had previously been filed. Plaintiff’s attorney, Jack Levin, and Charles appeared on the record. The trial court granted defendant 14 days to respond to the motion and set the matter for hearing on December 21, 1989. The defendants’ answer does not appear in the record on appeal.

On December 21, 1989, Jerome Kornfeld, an attorney, appeared as attorney for Charles. An order was entered which stated that “Jerome Kornfeld be given leave to file his appearance on behalf of Charles and Carol Bynum.” The order also allowed plaintiff leave to amend the complaint, gave defendants 14 days to file a response to plaintiff’s motion to strike and dismiss defendants’ answer to the complaint, and gave defendants 14 days to respond to plaintiff’s motion to place mortgagee in possession. Finally, the order set the matters for hearing on January 17, 1990, “without further notice.” The order is signed by the trial judge with a handwritten date of October 21, 1989, over his signature. However, the clerk’s stamp bears the date December 21, 1989. On January 4, 1990, an appearance was filed on behalf of Charles. The appearance was signed by another individual “for Jerome Kornfeld.”

On February 22, 1990, Padda’s attorney filed a notice of motion that had been served upon Kornfeld & Associates moving the court for leave to amend the complaint instanter by amending paragraphs 2© and (k). Plaintiff also sent a notice of motion to Kornfeld & Associates, wherein the plaintiff moved “the Court for a hearing instanter on Plaintiff’s Motion for Mortgagee in Possession Appointment as well as Plaintiff’s Motion to set the matter for a trial on a date certain.” On that date, the trial court entered an order which provided that plaintiff be given leave to amend the complaint instanter and that defendants be given 28 days to file an amended answer or otherwise plead.

On March 1, 1990, plaintiff filed a copy of the notice of motion that had been sent to Kornfeld & Associates which indicated that the plaintiff was going to present an emergency motion for appointment as mortgagee in possession. Said motion was continued to April 2, 1990, for hearing. In addition, defendants were given 10 days to file an answer to plaintiff’s amended complaint.

On April 2, 1990, the trial court entered an order which, among other things, (1) granted plaintiff’s motion to place mortgagee in possession; (2) allowed Charles to remain in occupancy of his unit; (3) allowed Padda to collect all rents from all the tenants; and (4) provided that said rental income is to be used for the maintenance, upkeep and necessary repairs to the building, as well as utility expenses. In addition, Padda was ordered not to make any repairs or incur expenses in excess of $1,000 without prior permission from the court. The order further provided that the plaintiff shall provide the court with an accounting of income received and expenditures incurred every 90 days.

On June 21, 1990, Padda filed a motion seeking an order allowing him to repair the premises and to incur expenses in excess of $1,000. The trial court entered an order that (1) granted plaintiff leave to file an exhibit and/or affidavit in support of his motion; (2) granted defendant leave to file a response to plaintiff’s motion; and (3) set the matter for hearing on June 28, 1990. On June 28, 1990, the matter was continued to July 10,1990.

On July 10, 1990, plaintiff filed a notice of motion which had been sent to Kornfeld & Associates, Charles, and Daryl Barry, attorney at law. The notice of motion indicated that plaintiff was going to move the court for the entry of an order of default against Charles. After hearing, the trial court entered an order which granted Padda leave to make those repairs and expenditures as set forth in its motion. Padda’s affidavit indicates that $3,200 was required for the replacement and installation of hot water tanks and pipes; that the gas service had been cut off, the current gas bill was approximately $4,000 to $5,000 and that in order to reinstate service People’s Gas was requiring the payment of approximately $2,000; there was a charge for $1,400 for waste disposal services. The order further held that “Defendant is in default due to his failure to answer or otherwise plead in response to plaintiff’s amended complaint.” The matter was set for prove up on August 17, 1990, with “notice to be given to defendant.” On August 17, 1990, the matter was continued to August 29,1990, without further notice.

On August 29, 1990, a judgment of foreclosure was entered against the defendants in the amount of $83,198.63. At the hearing on August 29, 1990, plaintiff’s attorney tendered to the court the trust deed, note, assignment, the original complaint, the amendment to the complaint and a judgment of foreclosure. The court instructed plaintiff’s attorney to prepare a face sheet for the amended complaint and granted plaintiff leave to file the amendment to the complaint updating the figures. The judgment of foreclosure indicates that the rights of redemption shall expire on November 27,1990.

On January 23, 1991, Berton M. Ring filed a motion for leave to file an additional appearance for the plaintiff. Said motion was granted on February 8, 1991. On January 23, 1991, Berton Ring filed a motion for possession and other alternative relief. Paragraphs 4 and 5 of this petition stated, “Charles Bynum is residing at 5436 West Ferdinand, Chicago, Illinois unit #1 *** Mr. Bynum’s rent is $430.00 per month and he has not paid any rent since the mortgagee has been placed in possession on April 2, 1990.” Paragraph 6 stated, “Currently, rent is owed for the months of February 1990 through the January 31,1990 [sic] totaling $4,300 in back due rent.”

On February 15, 1991, the trial court granted plaintiff “possession of the units occupied by Charles and Carol Bynum, with the order of possession stayed 5 days until 2/10/91 without further notice, if rent in the amount of $430.00 for February 1991 rent is not received within these five days.” The court also ordered that “[t]he order of April 2, 1990 is modified to reflect this change.” An additional order dated February 15, 1991, ordered that (1) Charles shall pay the sum of $430 for February rent within five days, (2) Jerome Kornfeld was given leave to withdraw as counsel for defendant, and (3) Daryl Berry was given leave to file his appearance as substitute counsel for defendant, instanter. Daryl Barry never filed an appearance in this case.

On February 28, 1991, plaintiff presented a motion to amend judgment of foreclosure, alleging that the plaintiff had expended an additional sum of $37,731.02, since the entry of the foreclosure judgment. The plaintiff prayed that the judgment of foreclosure be amended to reflect the judgment in the amount of $122,108.74. The itemized statement of expenses showed expenditures in excess of $1,000 and contrary to the order of the trial court that the court’s permission was necessary for expenditures in excess of $1,000. For example, expenditures were listed for $1,850, $7,450, $1,100, $1,248.36, $3,000, and $19,128.64. The trial court granted plaintiff leave to amend paragraph 2(a) of the judgment of foreclosure to reflect a judgment of $120,929.65. The trial court denied defendants’ motion to strike or dismiss. The record on appeal does not contain a notice of motion to amend the judgment of foreclosure or a transcript of the proceedings on February 28,1991.

An amended paragraph 2(a) of the judgment of foreclosure was filed March 5,1991, reflecting a total of $120,929.65.

On March 6, 1991, a sheriff’s sale was held wherein Peter Eckel, Gurpreet Padda’s partner, bid $120,929.65 and the property was deeded to Gurpreet Padda. David Delgado, an attorney, entered an additional appearance on behalf of Charles and Carol.

On March 15, 1991, Padda filed a motion to confirm sale and for an order for possession. According to the sheriffs report of sale and distribution filed March 15, 1991, Padda’s bid left a deficit of $4,522.94.

Defendants filed various motions including a motion to vacate the judgment and/or an order for possession and for other relief and a motion to quash and/or vacate the judicial sale of March 6, 1991. Padda also filed a motion to substitute the name of Peter Eckel for the named plaintiff. That motion was subsequently withdrawn at the hearing on May 14, 1991.

On May 14, 1991, after the parties had briefed their various motions and argument was heard, the court entered an order which: (1) denied defendants’ motion to vacate the judgment/order of possession; (2) allowed the possession order against Bynum to remain standing; (3) denied defendants’ motion to quash and vacate the judicial sale; and (4) granted plaintiff’s motion to confirm the judicial sale. The order entered did not enter a deficiency judgment against either of the defendants. The transcript of the hearing discloses that when the trial court denied the motion to vacate the judgment, the court found that “[tjhere was a default order entered against Mrs. Bynum.”

On May 17, 1991, the trial court denied the defendants’ emergency motion to reconsider the court’s denial of defendants’ motions, ordered that there was no just reason to delay the enforcement of the judgment, and stayed the order of eviction for 30 days.

On July 2, 1992, Padda transferred all his interest in this property by warranty deed to Dr. Peter Eckel, who is the named plaintiff on appeal.

Defendants appeal from the trial court’s orders of May 14, 1991, and May 17, 1991, and present the following issues for review: (1) whether a foreclosure sale predicated upon a partial assignment is valid; (2) whether the entry of a foreclosure against Carol Bynum by default was and is a nullity as a result of plaintiff’s failure to comply with Supreme Court Rule 105 (134 Ill. 2d R. 105); (3) whether Padda still had an interest in the judgment of foreclosure which allowed him to bid the judgment of foreclosure at the foreclosure sale to obtain a title to defendants’ real property; (4) whether the foreclosure sale is void due to plaintiff’s alleged failure to comply with section 15— 1507(c) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 15 — 1507(c)); and (5) whether the plaintiff could charge the defendants with repairs on the premises when the alleged repairs exceeded the amount that the court allowed without further order of court.

For the following reasons, we must affirm in part and remand in part for a factual determination on one of the issues.

I

The defendants argue that the foreclosure judgment is invalid because it is predicated on a partially assigned installment note and trust deed. The original mortgagees of the note and trust deed were Reinhold Casper and Ruth B. Casper. Defendants maintain that the purported assignment only contains an assignment of the interest of Ruth B. Casper and is therefore a partial assignment.

The plaintiff maintains that Reinhold Casper predeceased his wife, Ruth B. Casper, and upon his death his interest transferred to Ruth B. Casper by operation of law since the property was held in joint tenancy. Since there is no joint tenancy mentioned on either the trust deed or the installment note, we find no merit to this contention.

However, the plaintiff also argues that even if the parties did not hold the trust deed and note as joint tenants, Reinhold Casper’s interest in the trust deed and note transferred to Ruth Casper upon his death pursuant to his will. The plaintiff maintains that, accordingly, at the time of Ruth Casper’s death, she owned all of the rights, title and interest in the trust deed and note. On April 25, 1989, Reinhold Lee Casper, as personal representative of the estate of Ruth Casper, deceased, assigned all rights, title and interest under a trust deed dated January 22, 1973, executed by Charles and Carol to Padda. A copy of Reinhold Casper’s will was not attached to any of the pleadings.

Plaintiff argues that the defendants have admitted that plaintiff is the sole mortgagee of the trust deed and note, because they were held in default for failing to answer plaintiff’s complaint. In paragraph 3(n) of the complaint to foreclose mortgage, plaintiff alleged:

“Capacity in which Plaintiff brings this suit: Plaintiff is the holder and assigned of the rights, title and interest under the Trust Deed an installment Note secured by said Trust Deed as assigned by Reinhold Lee Casper, Personal Representative of the Estate of Ruth E. Casper; and the security given therefore, and the indebtedness thereto.”

Plaintiff maintains that the defendants admitted this allegation when they were held in default on July 10,1990.

Well-pleaded allegations of a complaint are considered admitted by a defendant when held in default for failure to plead to the complaint. (See Colonial Penn Insurance Co. v. Tachibana (1977), 53 Ill. App. 3d 981, 369 N.E.2d 177; Walgreen Co. v. American National Bank & Trust Co. (1972), 4 Ill. App. 3d 549, 557, 281 N.E.2d 462.) Accordingly, defendants admitted the well-pleaded allegations of the complaint when they were held in default, including the allegation that Padda held the entire interest in the subject property.

Plaintiff also argues that the defendants have waived their right to argue Padda’s capacity, because they failed to raise this affirmative defense by answer or other pleading. Pursuant to section 2 — 613(d) of the Illinois Code of Civil Procedure, if the defendant seeks to assert an affirmative defense, he must specifically plead it in the answer or reply (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 613(d)) so the plaintiff is not taken by surprise. If defendant fails to timely plead the affirmative defense, he is deemed to have waived the defense and the defense cannot be considered, even if the evidence suggests its existence. First National Bank v. Village of Mundelein (1988), 166 Ill. App. 3d 83, 90, 519 N.E.2d 476, 481.

Defendants first raised this capacity defense on April 5, 1991, nine months after the judgment of foreclosure was entered and 19 months after the complaint was filed. Plaintiff argues that had defendants raised this defense at the pleading stages, plaintiff could have easily produced Reinhold Casper’s will which proves that Reinhold Casper’s entire estate passed to his wife, Ruth B. Casper, upon his death. We find that defendants have waived their right to raise this affirmative defense because they failed to raise it by pleading in a timely fashion.

II

The defendants argue that the entry of the default foreclosure was and is a nullity because the plaintiff amended his foreclosure suit in a substantive manner without complying with Supreme Court Rule 105. Supreme Court Rule 105 provides in pertinent part:

“If new or additional relief, whether by amendment, counterclaim, or otherwise, is sought against a party not entitled to notice under Rule 104, notice shall be given as herein provided. *** It shall state that a pleading seeking new or additional relief against him has been filed and that a judgment by default may be taken against him for the new or additional relief unless he files an answer or otherwise files an appearance ***.” 134 Ill. 2d R. 105(a).

According to the return of summons, Carol was personally served with summons on September 16, 1989. Charles was served with summons by substitute service on his wife on the same date. On October 16, 1989, Charles entered an appearance which stated, “The undersigned, as attorney enters the appearance of the defendant [sic] Charles V. Bynum & Carol E. Bynum.” Charles is not an attorney. Subsequently, Jerome Kornfeld was given leave to file his appearance on behalf of Charles and Carol Bynum. Kornfeld only entered an appearance on behalf of Charles.

Rule 105 applies to parties who are in default — those who have not appeared either personally or by counsel. (Public Taxi Service, Inc. v. Ayrton (1973), 15 Ill. App. 3d 706, 711, 304 N.E.2d 733.) Ordinarily, a party who has not appeared need not be served with notices of motions; however, if relief is sought from the party other than that requested in the complaint, the party must be notified. Public Taxi Service, Inc., 15 Ill. App. 3d at 711-12.

Any action taken by a litigant which recognizes the case as being in court will amount to a general appearance unless such action was for the sole purpose of objecting to the jurisdiction over his or her person. (Lord v. Hubert (1957), 12 Ill. 2d 83, 145 N.E.2d 77; see also Mauro v. Peterson (1984), 122 Ill. App. 3d 466, 461 N.E.2d 564.) Generally, notice to an attorney is notice to the client and knowledge of an attorney is knowledge of, or imputed to, the client, notwithstanding whether the attorney has actually communicated such knowledge to the client. In re Marriage of Mierlak (1981), 100 Ill. App. 3d 228, 426 N.E.2d 1010.

The determinative question which this court is not able to answer on the record before us is whether or not Kornfeld was Carol’s attorney when he appeared in court on December 21, 1989, and various dates thereafter. The question of whether Kornfeld was acting as Carol’s attorney is a factual question, and one which the trial court did not address. Therefore, we remand to the trial court with directions to receive such evidence as it deems necessary and make a factual determination on this issue.

An attorney who has filed an appearance is chargeable with notice of all orders affecting pending causes; notices served on him are notices served upon the client. Public Taxi Service, Inc. v. Ayrton (1973), 15 Ill. App. 3d 706, 304 N.E.2d 733.

“Whether or not an attorney-client relationship exists involves principles of contract and agency.” (Foley v. Metropolitan Sanitary District (1991), 213 Ill. App. 3d 344, 351, 572 N.E.2d 978.) In Foley the court expressed concern that the plaintiff had completely failed to provide in the record any affidavit or sworn statement stating that he did not believe King was his attorney, and the reasons therefor. In the record before this court, we find no affidavit or sworn statement by Carol that Komfeld was not acting as her attorney when he allegedly appeared on her behalf.

The court in Foley further stated:

“Generally, where an attorney appears of record for a party, the presumption is that the appearance in such capacity was duly authorized by the person for whom the attorney appears. [Citations.] The presumption may be rebutted by evidence to the contrary. [Citation.] Also, an attorney’s authority to appear may be implied or apparent authority and may arise from the circumstances and facts where there is a reasonable appearance, due to the acts of another, that the person is authorized to act as agent for such other person.” Foley, 213 Ill. App. 3d at 353.

It is a question of fact as to whether the trier of fact believes that the attorney’s appearance was unauthorized. (Mierlak, 100 Ill. App. 3d at 231.) In Mierlak, an attorney reported to the court that he had been engaged by respondent’s brother; the respondent failed to offer affidavits or testimony from his brother or the attorney that the appearance was not authorized, and offered only his own denial, which was insufficient to rebut the presumption of authorization.

When Komfeld appeared on December 21, 1989, he was granted leave to file an appearance on behalf of both the Bynums and was granted time to respond to various pending motions on behalf of the defendants. The appearance form filed by Kornfeld on behalf of Charles was not signed personally by Kornfeld, but rather by another individual on his behalf. Charles and Carol are husband and wife and were living together at the time of these proceedings. Carol also appeared in court with Charles at times during the pendency of the case. This issue was not raised until nine months after the judgment was entered. Plaintiff argues that defendants’ argument that Kornfeld only represented Charles is illogical. We find it difficult to believe that a husband and wife, who are not estranged, would not be represented by the same attorney during a foreclosure proceeding; however, this remains a factual question for the trial court. Factually, we find this a difficult case. Since the parties were married, living in the same house and even came to court together, we would assume that Carol had notice of the various proceedings in this case; however, this does not obviate the need to properly serve Carol with notice. Moreover, if it is true that Kornfeld was only representing Charles, it is difficult to believe that he would not have advised either Carol or Charles that it was necessary for Carol to appear or have an attorney appear on her behalf.

Plaintiff argues that assuming Jerome Komfeld did not represent Carol, she was not entitled to any notice of the ongoing proceedings because she was in default. The default order entered states that “defendant” is in default. However, the trial court specifically found at the May 14, 1992, hearing, that “there was a default order entered against Mrs. Bynum.”

In addition, plaintiff argues that Supreme Court Rule 105 is not applicable to the facts in this case. Plaintiff indicates that although the record indicates that plaintiff was given leave to file an amended complaint, the record does not contain an amended complaint. At the hearing on August 29, 1990, the date the judgment of foreclosure was entered, plaintiff’s attorney was given leave to file an amended complaint; however, the only amendment to the complaint was an update of the amount presently due on the note. The amendment did not have a face sheet and apparently was never filed with the court. Plaintiff argues that the amount due under the note was interest bearing and was increasing daily and that an increase in the amount of principal and interest due under the note is not new or additional relief in a mortgage foreclosure action and is certainly not the type of new or additional relief contemplated by Rule 105. Plaintiff also points out that the complaint in the present case sought a deficiency judgment against both defendants and Carol was given notice of that when she was served with the original complaint (a deficiency judgment was not entered against either defendant on May 14, 1991, the day the sheriff’s sale was confirmed).

Supreme Court Rule 105 requires that notice be given to a party in default if new relief, or relief greater than that originally requested, is sought. (Parrish v. Glen Ellyn Savings & Loan Association (1990), 193 Ill. App. 3d 629, 633, 550 N.E.2d 43.) This does not mean that every amendment to a complaint comes within the notice provisions of this rule. (Berkson v. Quality Beauty Supply Co. (1976), 36 Ill. App. 3d 877, 344 N.E.2d 629 (not “additional relief” where amendment sought only to substitute the correct date of alleged occurrence).) A party has the right to assume that relief granted on default will not exceed or substantially differ from that asked for in the complaint, and thus the notice requirements of Rule 105 are designed to prevent litigants from obtaining new or additional relief without first giving a defaulted party a renewed opportunity to appear and defend. (Palatine Savings & Loan Association v. National Bank & Trust Co. (1980), 80 Ill. App. 3d 437, 399 N.E.2d 1015.) We agree with plaintiff in that the note was interest bearing and an increase in the relief sought as a result of the increasing interest in a foreclosure case was not the type of new or additional relief as contemplated by Rule 105. However, the complaint originally sought a judgment of $55,568.87. Ultimately, the plaintiff filed an amended paragraph 2(a) of the judgment of foreclosure seeking $120,929.65, said amount including $37,731.02 in expenditures by the mortgagee in possession. The judgment amount more than doubled, increasing in excess of $60,000. We believe that this is the type of additional relief as contemplated by Rule 105.

For the reasons set forth above, we remand the matter to the trial court for a factual determination as to whether Jerome Kornfeld was acting as Carol’s attorney. If the trial court finds that he was acting as her attorney and thus received appropriate notice, we affirm the decision of the trial court. However, if he was not acting as her attorney, Carol was entitled to notice pursuant to Supreme Court Rule 105 and, accordingly, we must find that the judgment of foreclosure against Carol is void.

Ill

The defendants argue that when Padda divested himself of the trust deed and installment note which the foreclosure suit was premised upon by quitclaiming all of his interest in the foreclosure suit by quitclaim deed to Peter Eckel, a person who was not a party to the foreclosure suit, the foreclosure suit was no longer a valid foreclosure suit.

The defendants argue that the “bid of the plaintiff at the foreclosure sale was made to embarrass and/or obstruct the orderly administration of justice.” In support of this argument the defendants cite People ex rel. Fahey v. Burr (1925), 316 Ill. 166, 147 N.E. 47, and People v. McCaffrey (1924), 232 Ill. App. 462. (Burr is the Illinois Supreme Court case which affirmed McCaffrey.) The attorneys concealed from the trial court the existence of prior valid orders in an adoption proceeding and a habeas corpus proceeding awarding the custody to the adoptive parents, which would have prevented an order in favor of their client. The attorneys had represented the client in the earlier proceedings. This case is clearly distinguishable from the present case. We find no evidence in this record that either Padda or Eckel was attempting to embarrass and/or obstruct the orderly administration of justice.

Apparently, Padda and Eckel became partners and co-mortgagees in this property. On February 20, 1991, Padda quitclaimed his interest in the property to Eckel. The quitclaim deed was not recorded. Plaintiff asserts that it was not the intent of either Padda or his attorney to transfer all of his interest in the property to Eckel. Plaintiff asserts that it was the intention of the parties that the deed was to be delivered, but not recorded, to act as security for the partners in that Padda was moving out of town and Eckel was going to manage the property. Plaintiff further argues that the relationship between Padda and Eckel is irrelevant to the issue of whether the sale was conducted fraudulently.

The trial court found that there was no prejudice to the defendants at the sale in that nothing existed to prevent the defendants from bidding at the foreclosure sale and nothing existed which changed their legal rights at the sale. Proof of actual injury resulting from the allegedly fraudulent misrepresentation is an essential element of actionable fraud. (Shah v. Chicago Title & Trust Co. (1983), 119 Ill. App. 3d 658, 457 N.E.2d 147.) Although Padda, Eckel or any of their various attorneys could have been more open with the Bynums, as well as the fact that Padda and Eckel could have found a more proper way to evidence their partnership, we find nothing in the record indicating an injury to the Bynums as a result of the conduct. This court finds no fraudulent conduct by either Padda or Eckel that could justify the vacation of the trial court’s order of foreclosure, the sale, or confirmation of the sale.

IV

The defendants argue that the judicial sale which took place on March 6, 1991, and any other dates was void due to plaintiff’s failure to comply with section 15 — 1507(c) of Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 15 — 1507.) Defendants argue that after notice is given as required in section 15 — 1507, a copy thereof shall be filed in the office of the clerk of the court entering the judgment, together with a certificate of counsel or other proof that notice has been served in compliance with this section. Defendants maintain that plaintiff’s certificate of mailing of notice stated that plaintiff’s attorney mailed a copy of the publication for service by publication rather than a copy of the publication of the proposed foreclosure sale. Conversely, plaintiff maintains that the requirements of section 15 — 1507(c) were complied with and, therefore, the trial court did not err in refusing to vacate the sale. We note that the defendants were aware of the date of the sale as their attorney was present in court the morning of the sale presenting an emergency motion to have the sale stopped.

Plaintiff argues that the defendants were not entitled to notice pursuant to section 15 — 1507(c)(3), which states:

“The party who gives notice of public sale in accordance with subsection (c) of Section 15 — 1507 shall also give notice to all parties in the action who have appeared and have not theretofore been found by the court to be in default for failure to plead. Such notice shall be given in the manner provided in the applicable rules of court for service of papers other than process and complaint, not more that 45 days nor less that 7 days prior to the day of sale. After notice is given as required in this Section, a copy thereof shall be filed in the office of the clerk of the court entering the judgment, together with a certificate of counsel or other proof that notice has been served in compliance with this Section.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110, par. 15 — 1507(c)(3).)

Plaintiff argues that since a default judgment was entered against the defendants for failure to plead, they were not entitled to notice pursuant to section 15 — 1507(c)(3). We agree.

Plaintiff further argues that even if defendants were entitled to notice pursuant to section 15 — 1507(c)(3), defendants must have complied with the procedures set forth in section 15 — 1508(c) of the Illinois Code of Civil Procedure in order to succeed on their motion to vacate the sale. (Ill. Rev. Stat. 1989, ch. 110, par. 15 — 1508.) Section 15 — 1508(c) provides:

“Failure to Give Notice. If any sale is held without compliance with subsection (c) of Section 15 — 1507 of this Article, any party entitled to notice provided for in paragraph (3) of that subsection (c) who was not so notified may, by motion supported by affidavit made prior to confirmation of such sale, ask the court which entered the judgment to set aside the sale, provided that such party shall guarantee or secure by bond a bid equal to the successful bid at the prior sale.” (Ill. Rev. Stat. 1989, ch. 110, par. 15-1508(c).)

Defendants’ motion to vacate the sale pursuant to section 15 — 1507(c) had an affidavit signed by Charles and Carol; however, there is no evidence in the record that the defendants ever secured a bond. Thus, even if the defendants were entitled to notice pursuant to section 15— 1507(c), they were not entitled to relief since they did not comply with the provisions of section 15 — 1508(c).

V

In their brief defendants also set forth an issue as to whether the plaintiff could charge the defendants with repairs on the premises when the alleged repairs exceeded the amount that the court allowed without further order of the court. However, defendants made no arguments nor presented any authority in support of this issue. Although set forth in a brief, issues upon which no argument was made nor authority presented in support are waived for purposes of review. (People ex rel. Daley v. Warren Motors, Inc. (1985), 136 Ill. App. 3d 505, 516, 483 N.E.2d 427, 434; see also 134 Ill. 2d R. 341(e)(7).) We find that the defendants have waived this argument.

For all the reasons set forth above, we affirm the decision of the trial court that Padda had a proper interest in the trust deed. We find no merit to the defendants’ allegations of fraud and we find that the plaintiff complied with sections 15 — 1507(c) and 15 — 1508 of the Illinois Code of Civil Procedure. However, we remand the matter to the trial court with directions to receive such evidence as is necessary to make a factual determination as to whether Jerome Komfeld was acting as Carol Bynum’s attorney. If Komfeld was acting as Carol’s attorney, we affirm the decision of the trial court. However, if Kornfeld was not acting as her attorney, the judgment of foreclosure against Carol is void.

Affirmed in part and remanded in part with directions.

LORENZ and GORDON, JJ., concur.

       Justice Lorenz concurred in this opinion prior to his retirement.


author: JUSTICE DiVITO

text:
    DAVID KIM, a Minor, by Hye Jung Kim, his Mother and Next Friend, et al., Plaintiffs-Appellants, v. EVANSTON HOSPITAL et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1 — 90—3645
    Opinion filed December 29, 1992.

      Goldberg & Goldberg and David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky and Linda A. Bryceland, of counsel), for appellants.
    David J. Loughnane, of Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Robert J. Franco, of counsel), for appellees.
   JUSTICE DiVITO

delivered the opinion of the court:

In this medical malpractice action, plaintiff David Kim sought damages for injuries sustained when defendants allegedly failed to timely diagnose and treat him for meningitis on December 5, 1981. After a seven-week trial, a jury found in favor of defendants and against plaintiffs. On appeal, plaintiffs contend that reversal is necessary because (1) defense counsel improperly characterized plaintiffs’ treating physicians as retained experts; (2) a hypothetical contained in a question by defense counsel improperly impugned a relative of plaintiffs’ counsel; (3) defense counsel’s closing argument improperly injected racial prejudice into the trial; and (4) the jury’s verdict was against the manifest weight of the evidence.

On December 5, 1981, 16-day-old David Kim awoke at approximately 4 a.m. His mother, Hye Jung Kim, tried to feed him and noticed that he was fussy and slightly warm. By about 8 a.m., David had a fever of 103 degrees and refused to eat. Sometime between 8:10 and 8:20 a.m., Mrs. Kim called the Child and Adolescent Center, an outpatient clinic at Evanston Hospital. Plaintiffs asserted that she spoke to defendant Dr. John Reichert, plaintiffs’ pediatrician, and that he told her that there was nothing to worry about but that she could bring David in during the normal clinic hours. Defendants asserted, however, that she spoke either to Dr. Herbert Philipsborn, the attending physician, or to no one.

Sometime between 9:30 and 10 a.m., David and his mother arrived at the clinic and were first seen by Philipsborn, who suspected “sepsis,” a condition involving bacteria in the bloodstream. Philipsbom advised defendant Dr. Alan Resnick, the resident on the pediatric floor, that the child was fussy and had a fever, and instructed him to perform an evaluation in order to rule out sepsis. Philipsborn stated that he also called Reichert to tell him that his patient had been admitted to the hospital.

Resnick first determined that David required no immediate treatment and then spent 20 to 30 minutes taking a medical history and conducting a physical examination. Because sepsis was suspected, a spinal tap was performed and blood samples were drawn. An intravenous line (IV) was inserted between 11:15 and 11:30 a.m., approximately two hours after David arrived at the hospital. Although the objective was to administer antibiotics by IV as soon as possible, it could not be done, due to the fear of toxic effects, until the lab results were returned. At approximately 11:35 a.m., the IV became “infiltrated,” that is, fluid leaked from the blood vessel and caused swelling around the IV. It was not until 12 p.m. that Resnick was able to successfully replace the IV. He explained that David’s veins were so fragile that infiltration kept reoccurring. The medical record, however, bears no notation concerning any such fragility.

Even though an IV was in place around noon, Resnick was not able to administer the antibiotics for approximately one-half hour. Ruth Kinney, the manager of the biochemistry department at Evanston Hospital, testified that the tests took approximately one hour to complete once the spinal fluid and blood samples were received. Moreover, no standardized solutions of antibiotics suitable for infants were kept on hand by the hospital pharmacy. Instead, the physician had to call the pharmacy to have the appropriate solution prepared. By 12:30 p.m., however, ampicillin was being administered to David.

Approximately 15 minutes after beginning the drug administration, the IV again became infiltrated. Resnick worked for approximately 15 minutes to reinsert the IV, and at 1 p.m., he requested Dr. Christie Martin’s assistance. At approximately 1:15 p.m., Resnick was able to establish a good line. Although the medical record does not specify exactly what time the drug administration began, it does indicate that it began no later than 1:30 p.m.

By 2 p.m., the patient was stable and the “gram stain” test result, critical in the diagnosis of meningitis, came back from the laboratory. The test result indicated a “gram positive organism,” or “group B strep,” in the spinal fluid which can cause meningitis. Because of the test result, David’s medication was changed to penicillin G.

At approximately 4 p.m., David suddenly began having seizure activity, with a jerking of the eyes and shakiness. Resnick gave him valium and phenobarbital to control the seizures, and then called Reichert, who said that he was coming to the hospital. About 20 minutes later, Resnick called the intensive care unit (ICU) to advise that he wanted the child admitted to the infant special care unit, and to request the assistance of Dr. Martin. After Reichert arrived at the hospital between 4:30 and 4:45 p.m., he and Resnick called the ICU to have David admitted there, but were told that no bed space was available in either the adult or infant units. They then decided to transfer the infant to the ICU at Children’s Memorial Hospital. Except for his signature at the end of the “work up” done by Resnick, Reichert made no markings in the medical record.

During this time, David’s breathing patterns became erratic. Res-nick administered oxygen with a face mask and called an anesthesiologist to “intubate” him. An anesthesiology resident came and placed an endotracheal tube in David’s windpipe. The anesthesiologist made no entries in the medical record.

Children’s Memorial Hospital was called at 5 p.m. A transfer team arrived at Evanston Hospital approximately one hour later, and began preparing the paperwork. At 6:55 p.m., David was transferred to Children’s Memorial Hospital.

In their lawsuit, plaintiffs asserted that defendants deviated from the standard of care when they failed to administer the antibiotics in a timely manner, when they failed to place David in a pediatric unit as soon as possible, and when Reichert failed to instruct plaintiffs to go to the emergency room when he spoke to Mrs. Kim on the morning of December 5, 1981.

During the seven-week trial, much evidence was presented by the parties. On behalf of plaintiffs, Dr. Frank Baker testified that Reichert deviated from the standard of care when he failed to instruct Mrs. Kim to take her child to the emergency room when she called him that morning and told him that the infant had a fever. Baker explained that whenever a baby less than 28 days old has a fever, there is a presumptive diagnosis of sepsis. He stated that antibiotics should have been administered within a half-hour of the spinal tap, but that nearly two hours had elapsed in this case. He also stated that effective treatment of meningitis requires that the antibiotics be administered in a timely manner and that the medical records should have indicated any difficulty in maintaining the IV.

Dr. James Todd also testified for plaintiffs. He agreed that Reichert violated the standard of care by telling Mrs. Kim to wait until the clinic’s regular hours. He also stated that drug therapy should begin as soon as possible, within 10 to 15 minutes of the spinal tap. He stated, however, that David already had meningitis when he arrived at the hospital.

Dr. Robert Filers, a specialist in rehabilitative medicine, was called to testify as a treating physician by plaintiffs. He stated that he conducted the type of examination of David Kim that he does on all of his other patients, and he expects David to have a normal life expectancy. Although he stated that he had been involved with approximately five cases where plaintiffs’ counsel also was involved, Mrs. Kim testified that she learned of Filers through a parents group, and took her son to him to learn what type of therapy would be helpful.

Dr. Lawrence Tomasi also testified as a treating physician for plaintiffs. He stated that he supervised the doctors at Children’s Memorial Hospital who treated David. He believed David’s nervous system would never recover. Under cross-examination, he stated that he had consulted or testified for plaintiffs’ counsel approximately 12 to 14 times prior to the instant case.

Dr. Jerome Klein testified for defendants and explained that David suffered from fulminant meningitis rather than insidious meningitis. Fulminant meningitis has no symptoms and comes on quickly, in an “explosive fashion.” In his opinion, an earlier administration of antibiotics would not have changed the outcome, because the only means of preventing the disease is to treat it 4 to 12 hours before its onset. The onset of the disease in this case most likely occurred before David went to bed that night, and, therefore, the progression of the disease was “unstoppable.”

During his testimony, Dale Sowders, the legal affairs coordinator for Evanston Hospital, explained the hospital’s procedures for updating files and who had access to the medical records.

As previously indicated, the jury found for defendants and against plaintiffs. Plaintiffs filed a post-trial motion, which the circuit court denied. This appeal followed.

Initially, we address defendants’ contention that because plaintiffs have failed to file a record which conforms with Illinois Supreme Court Rule 321 (134 Ill. 2d R. 321), this court should summarily affirm the circuit court. Defendants point out that plaintiffs filed only the common law record and failed to file a report of proceedings as part of the record on appeal. Under Rule 323(a), the report of proceedings included in the record on appeal “shall include all the evidence pertinent to the issues on appeal.” (134 Ill. 2d R. 323(a).) Because a report of proceedings has not been filed and because such a report is essential to determine the validity of the issues raised by plaintiffs on appeal, defendants argue, summary affirmance should occur.

In their initial brief, plaintiffs state in a footnote that the report of proceedings was “inadvertently omitted from the Record on Appeal and will be filed in a Supplemental Record.” In their reply brief, plaintiffs state that they encountered difficulties obtaining a complete set of transcripts because one of the court reporters moved out of State and was unable to finish the transcription in a timely manner. Plaintiffs included an affidavit from the president of the reporting service explaining efforts to obtain the transcripts.

The notice of appeal in this case was filed in December 1990. The record was filed in July 1991, and plaintiffs’ initial brief was filed the following December. Oral arguments were scheduled and held in this case in October 1992. Even though plaintiffs indicated an intent to file the report of proceedings as a supplemental record in their opening brief, no attempt was made until after the clerk of this court contacted plaintiffs’ counsel in order to verify that no supplemental record was ever filed. Three days later, and only five days before oral arguments, plaintiffs filed a motion in this court to supplement the record with the transcript. Because of the timing of the motion and because the submitted report of proceedings was neither certified nor bound (see Rules 323(b) and 324 (134 Ill. 2d Rules 323(b), 324)), we denied the motion.

At oral arguments, plaintiffs’ counsel explained that he was not able to supplement the record any earlier because defense counsel refused to stipulate to his doing so, and the clerk of the circuit court refused to bind the transcript without such a stipulation. We consider this argument to be a complete misapprehension of the relevant rules relating to the filing of the record for appellate review. Rule 323 provides the requirements for the filing of the report of proceedings and authorizes this court, or any judge thereof, to extend the time for its filing upon the showing of necessity. (134 Ill. 2d R. 323(e).) Moreover, Rule 329 authorizes this court, or a judge thereof, to order that a supplemental record be filed to correct any material omission or inaccuracy in the record on appeal. (134 Ill. 2d R. 329.) Thus, rather than being precluded from acting by these rules, plaintiffs simply failed to abide by them in the ample time they had to do so.

It is the duty of the appellants to present a complete record to the reviewing court, so that the court may be fully informed about the issues that it must resolve. (Robles v. Chicago Transit Authority (1988), 173 Ill. App. 3d 46, 54-55, 527 N.E.2d 361, 367, appeal denied (1988), 123 Ill. 2d 566, 535 N.E.2d 410.) In the absence of such a record, it is presumed that the circuit court conformed to the law, and that the evidence supported its rulings. Wyman-Gordon Co. v. Bernardi (1983), 135 Ill. App. 3d 685, 689, 481 N.E.2d 1285, 1288.

In the instant case, since all of plaintiffs’ alleged errors require an examination of the record of the proceedings below, we could hold that the failure to file the report of proceedings constituted a waiver of those errors. We decline to do so here, however, because of the special considerations that must be given when a minor is involved in a lawsuit. (See Severs v. Country Mutual Insurance Co. (1982), 89 Ill. 2d 515, 520-21, 434 N.E.2d 290, 292 (holding that the limitation provision of the uninsured motorist section of the Insurance Code is against public policy when applied to a minor); Muscarello v. Peterson (1960), 20 Ill. 2d 548, 555-56, 170 N.E.2d 564, 569 (holding that when a minor is involved, a reviewing court may consider matters not properly preserved for appeal).) “Minor litigants are *** entitled to special protection by the courts, particularly to see that their rights are protected even from the neglect of their representative in order to do substantial justice.” (Brandon v. DeBusk (1980), 85 Ill. App. 3d 645, 648, 407 N.E.2d 193, 195 (because a minor was involved, the circuit court’s dismissal of the case as a discovery sanction was reversed).) We believe that “substantial justice” requires us to examine the submitted transcripts and to reach the merits of this case; accordingly, we vacate our prior order and allow the filing of the submitted report of proceedings. Our ruling, however, should not be construed as precedent for the proposition that the merits of an appeal will be considered despite the incompleteness of the record. We stress that, but for the special considerations involved here, which might carry no weight in a future case, this case would be summarily affirmed.

Plaintiffs’ first contention on appeal is that they were denied a fair trial when defendants were allowed to cross-examine the treating physicians as expert witnesses and to characterize them during closing argument as retained experts, thereby requesting the jury to ignore an earlier ruling by the circuit court that they were treating physicians. Specifically, plaintiffs assert as error defendants’ inquiries regarding the number of times Drs. Eilers and Tomasi each had testified in cases involving plaintiffs’ counsel, and defendants’ argument that the jurors carefully consider the testimony of those doctors because they had little personal knowledge of David’s situation and had repeatedly testified in cases for plaintiffs’ counsel. Plaintiffs argue that the circuit court had previously ruled as a matter of law that Eilers and Tomasi were treating physicians rather than expert witnesses, when, in a pretrial order, it included them in a list of those treating physicians whom plaintiffs could call at trial. Defendants respond that the doctors were actually retained as expert witnesses rather than treating physicians, and they were therefore justified in treating them as such. In support of their contention, defendants rely on another section of the same pretrial order, where the circuit court also ruled that both Eilers and Tomasi were experts when it included them in a list of expert witnesses that plaintiffs could call at trial. Defendants also point out that both doctors were disclosed by plaintiffs as experts who might be called at trial and that plaintiffs responded to Rule 220 interrogatories regarding Eilers’ testimony.

Finally, defendants argue that any characterization of Tomasi and Eilers as treating physicians is disingenuous. They argue that Eilers was merely a retained expert because he met with David only once, more than six years after the events in question occurred. Defendants also assert that Tomasi merely supervised the doctors at Children’s Memorial and therefore had little involvement, if any, with plaintiffs. Defendants note that Tomasi stated in his discovery deposition that he had no recollection of the patient and that his handwriting is not on the medical chart.

Plaintiffs’ contention that defendants improperly questioned and characterized the doctors as expert witnesses lacks merit. It is well settled that unlike retained experts, the disclosure requirements of Rule 220 (134 Ill. 2d R. 220) do not apply to treating physicians. (See Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525.) This distinction is based on the belief that an opposing party will not be surprised when a treating physician testifies, because the witness was initially associated with the issues in litigation for reasons other than the sole purpose of rendering an opinion at trial. (Tzystuck, 124 Ill. 2d at 234-35, 529 N.E.2d at 528-29 (likening treating physicians to occurrence witnesses).) Because unfair surprise can be avoided by adequate preparation, Rule 220 disclosure is deemed unnecessary for treating physicians. Wilson v. Chicago Transit Authority (1988), 126 Ill. 2d 171, 176, 533 N.E.2d 894, 897; Cochran v. The Great Atlantic & Pacific Tea Co. (1990), 203 Ill. App. 3d 935, 941-42, 561 N.E.2d 229, 233.

This distinction, however, applies only to the method of disclosure, rather than the substance of the testimony. (Fawcett v. Reinertsen (1989), 131 Ill. 2d 380, 384-85, 546 N.E.2d 558, 560 (holding that a defendant-physician is analogous to a treating physician and that the relevant distinction between an expert witness and a defendant-physician is the manner of discovery rather than the scope of testimony).) The mere fact that a witness is a treating physician rather than a retained expert will not prevent the witness from expressing a medical opinion. (Nastasi v. United Mine Workers of America Union Hospital (1991), 209 Ill. App. 3d 830, 843, 567 N.E.2d 1358, 1367, appeal denied (1991), 141 Ill. 2d 544, 580 N.E.2d 118.) Treating physicians may render their professional opinions, including opinions regarding the applicable standard of care, even though they have not been disclosed as experts. (Fawcett, 131 Ill. 2d at 384-85, 546 N.E.2d at 560.) Therefore, it logically follows that an opposing party should have the same ability to cross-examine a treating physician that he would have in cross-examining a retained expert. A party may properly cross-examine a medical expert regarding fee arrangements, prior testimony for the same party, and financial interest in the outcome of the case. (Sears v. Rutishauser (1984), 102 Ill. 2d 402, 408, 466 N.E.2d 210, 213.) Since counsel must be given the widest latitude to demonstrate any interest or bias of an expert through cross-examination (Sanchez v. The Black Brothers Co. (1981), 98 Ill. App. 3d 264, 423 N.E.2d 1309), we conclude that no error occurred here when defendants asked the witnesses whether they had ever before testified in a case for plaintiffs’ counsel.

Similarly, we find no error in defendants’ closing argument. During closing arguments, counsel may argue anything that is properly in evidence and draw reasonable inferences therefrom. (Brown v. Moawad (1991), 211 Ill. App. 3d 516, 528, 570 N.E.2d 490, 498, appeal denied (1991), 139 Ill. 2d 594, 575 N.E.2d 912.) In this case, the evidence demonstrated that both Eilers and Tomasi had limited involvement with plaintiffs and that they had a preexisting relationship with plaintiffs’ counsel. Therefore, it was a permissible inference that the witnesses were more like retained experts than treating physicians. Because such an argument goes to the weight that the jury may afford the testimony (Elliott v. Koch (1990), 200 Ill. App. 3d 1, 20-21, 558 N.E.2d 493, 507, appeal denied (1990), 135 Ill. 2d 555, 564 N.E.2d 836), defendants’ closing argument was proper.

Plaintiffs next allege that they were prejudiced when defendants improperly utilized a hypothetical involving a member of plaintiffs’ counsel’s family. They assert that prejudice occurred from the following exchange during the cross-examination of the hospital administrator:

“Q. And in terms of staff, would that also include any staff— if [plaintiffs’ counsel’s] father-in-law was a staff member at that time, would he also [have access to the hospital records?]
[PLAINTIFFS’ COUNSEL]: Objection. There’s no such testimony. I have no father-in-law that was there at the time. I would like to be heard.”

The circuit court directed the jury to disregard the statement.

On appeal, plaintiffs claim that they were prejudiced by the hypothetical, because it was intended “to infer that plaintiffs] had a mole on the hospital staff who stole the missing records.” Defendants respond that plaintiffs invited the hypothetical by suggesting earlier that Reichert and Resnick had the motive and the opportunity to remove and destroy the medical records.

A circuit court’s instruction to disregard certain evidence can cure prejudice resulting from the jury’s exposure to that evidence. (Downing v. United Auto Racing Association (1991), 211 Ill. App. 3d 877, 893, 570 N.E.2d 828, 839, appeal denied (1991), 141 Ill. 2d 538, 580 N.E.2d Ill.) Moreover, an error is not reversible unless it was substantially prejudicial, thereby affecting the outcome of the trial. (Skelton v. Chicago Transit Authority (1991), 214 Ill. App. 3d 554, 579, 573 N.E.2d 1315, 1332, appeal denied (1991), 141 Ill. 2d 561, 580 N.E.2d 135.) In the instant case, the court’s instruction to disregard the statement cured any prejudice that may have resulted from it. Although we do not endorse the specific hypothetical used by defense counsel, we consider any error to be merely harmless as this one statement did not affect the outcome of the trial.

Plaintiffs also contend that defendants improperly asserted during opening statements that the fact that records were missing did not suggest that defendants had been negligent. Plaintiffs assert that the fact the records were missing led to the inference that defendants breached the standard of care. (See Harrington v. Rush-Presbyterian-St. Luke’s Hospital (1990), 210 Ill. App. 3d 183, 187, 569 N.E.2d 15, 18 (holding that where the evidence was undisputed, a jury could properly infer negligent conduct from the fact that medical records were missing), appeal denied (1991), 141 Ill. 2d 540, 580 N.E.2d 114.) Defendants respond that even if the missing records raise such an inference, they would nevertheless be allowed to present evidence to the contrary. We agree. Illinois law allows a party to prove the substance of missing documents through secondary evidence (Burns v. Schmidt (1961), 22 Ill. 2d 47, 52, 174 N.E.2d 188, 191), and an attorney may discuss in his opening statement the evidence that he, in good faith, intends to introduce during the trial. (Yedor v. Centre Properties, Inc. (1988), 173 Ill. App. 3d 132, 143-44, 527 N.E.2d 414, 421.) Thus, because defendants could properly rebut the inference of negligence and endeavored to do so during trial, they committed no improprieties during their opening statement.

Plaintiffs next contend that defendants improperly injected racial prejudice into the trial by raising the inference during closing argument that if the jury found for plaintiffs, they would take the money and return to Korea. Plaintiffs claim that there was no evidence that the family intended to return to Korea and that Mr. Kim specifically denied any such intention. Defendants respond that the statement was made in response to a “grossly inflated lost earning projection” and that much evidence existed regarding the family’s close ties with Korea. They point out that the family speaks Korean and that Mr. Kim teaches at a university in Korea, but returns to the United States as often as possible. Defendants also note that no objection was made at trial; the first time plaintiffs alleged any error was in their post-trial motion.

In order to properly preserve an issue for appeal, a party must both make a contemporaneous objection and raise the issue in a post-trial motion. (Fakhoury v. Vapor Corp. (1991), 218 Ill. App. 3d 20, 25, 578 N.E.2d 121, 125, appeal denied (1991), 142 Ill. 2d 653, 584 N.E.2d 128.) Since plaintiffs failed to object at trial, this issue was not properly preserved for appeal. Furthermore, even if the issue were properly preserved, any error was merely harmless because it did not change the result of the trial. There was much evidence that the Kim family maintained close ties with Korea, and it is a reasonable inference that David might someday return to Korea to live. We conclude that no prejudicial error occurred because of these remarks.

Plaintiffs’ last contention is that the jury’s verdict was against the manifest weight of the evidence. A reviewing court will not set aside a jury verdict unless the verdict was contrary to the manifest weight of the evidence. (Pharr v. Chicago Transit Authority (1991), 220 Ill. App. 3d 509, 521, 581 N.E.2d 162, 169.) The question is not whether the evidence could have supported a verdict for the movant, but rather whether a contrary verdict is clearly evident. (Tedrowe v. Burlington Northern, Inc. (1987), 158 El. App. 3d 438, 444, 511 N.E.2d 798, 801, appeal denied (1987), 117 Ill. 2d 554, 517 N.E.2d 1096.) In this case, the jury heard all the evidence and found for defendants. Because we do not believe that a contrary verdict is clearly evident, we find that the jury’s verdict was not against the manifest weight of the evidence.

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

Affirmed.

SCARIANO and McCORMICK, JJ., concur.


author: JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS CARRIZALES et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 1 — 91—1759, 1 — 91—1772 cons.
    Opinion filed November 25, 1992.
    Modified opinion filed February 3, 1993.
    Rehearing denied February 5, 1993.

      Rita A. Fry, Public Defender, of Chicago (Kyle Wesendorf, Assistant Public Defender, of counsel), for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Susan Schierl, and Matthew L. Moodhe, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

After a joint jury trial, defendant Thomas Carrizales was convicted of first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1) and defendant Hector Carrizales was convicted of first degree murder under the accountability theory (Ill. Rev. Stat. 1989, ch. 38, pars. 9— 1, 5 — 2(c)). Thomas was sentenced to 34 years’ imprisonment, and Hector was sentenced to 28 years’ imprisonment. On appeal, Hector asserts that he should not be held accountable for the shooting committed by Thomas. We agree. Thus, we reverse Hector’s conviction.

Thomas asserts on appeal that he was denied a fair trial because (1) the prosecutor repeatedly insinuated that he had committed another crime for which no evidence was presented; and (2) the trial court gave the jury the prior inconsistent statement instruction even though the differences between his trial testimony and his custodial statement were insignificant. We affirm Thomas’ conviction.

Between 4 and 4:30 a.m. on April 16, 1989, Gilbert Trinidad was shot and killed in the crowded pool room of Roma’s Bar at 9247 South Commercial Avenue in Chicago.

Frederick Medrano, who was playing pool when defendant Thomas walked into the pool room, testified that Thomas went up to Gilbert and asked him for a cigarette. When Gilbert refused, Thomas shot him at close range. Medrano stated that Gilbert did not hold his pool cue in a threatening manner or use it to defend himself. Thomas’ back was to Medrano when the shots were fired less than a minute after Thomas arrived. Medrano further testified that he did not see Hector in Roma’s that night.

Chicago police officer Ronald Guerrero was in Roma’s at the time of the shooting. He was off duty and in plainclothes. Guerrero testified that he heard shots fired in the adjacent pool room. Thomas walked into the bar from the pool room waving his gun and then walked toward the back door. When Medrano told Guerrero that Thomas had just shot someone, Guerrero announced that he was a police officer and ordered Thomas to stop. Thomas continued walking toward the back door and pointed his gun at Guerrero. At that point, Guerrero went to the side of the juke box and fired three rounds at Thomas before Thomas went out the back door.

The autopsy indicated that Gilbert was shot at close range. Five bullets and other bullet fragments were recovered from the body. The bullets that entered Gilbert’s right center back, right back shoulder, right armpit, left abdomen, and left hand were all surrounded by stippling, indicating that he had been shot at close range. In addition, there were other graze wounds and a bullet lodged in his right thigh.

Gennaro Castillo, a close friend of Gilbert’s, testified that, on the evening of April 15, 1989, he and Gilbert went to Just Jim’s Bar, which is located at 108th Street and Ewing Avenue in Chicago. There, Castillo saw Thomas, Hector, and Philip Carrizales, although he did not talk to them. Two hours later, Castillo and Gilbert left Just Jim’s and went to Roma’s, where they ordered drinks and played pool. About lVz hours later, Castillo saw Thomas, Hector, and Philip arrive. Hector approached Castillo and asked him for a sip of his drink. Castillo gave both Hector and Thomas a drink.

After a few minutes, Hector asked Castillo to come to his car where he had something to drink. Leaving the bar, Castillo told Gilbert to “watch his back.” Thomas stayed in the bar and was about 10 feet from Gilbert when Castillo and Hector left. Castillo and Hector walked to Hector’s car, which was parked near Roma’s back door. On the way to the car, Hector told Castillo that he knew that Castillo and Gilbert were friends, that Gilbert’s cousin had “fucked up,” and that something might happen or was going to happen to Gilbert. Hector did not want it to come between their friendship.

Hector got into the driver’s seat of the car and reached over to open the passenger door for Castillo. As Castillo was getting into the car, he heard gunshots coming from inside Roma’s. Hector started the car, and Castillo saw Thomas running from Roma’s back door toward the car. Castillo ran toward the front of Roma’s. As he ran, he looked back and saw the car drive away. According to Castillo, there were two people in the car as it drove through the alley.

Cynthia Wills, who was Gilbert’s girlfriend, testified that she was across the street from Roma’s when she saw Hector and Castillo leave the bar and walk to the vacant rear lot. A few minutes later, she saw people running out of Roma’s. Then, she saw Hector drive by the bar twice. He was alone in the car.

Moments later, Chicago police officer John Kubiak responded to a police radio message that Officer Sanchez was in pursuit of one of the suspects. The chase was going westbound on 92nd Street so Kubiak drove eastbound on 92nd Street. Hector was intercepted on 92nd Street east of Commercial Avenue, which was one block north of Roma’s. There was no one else in the car.

Ruben Rizo, a friend of Gilbert’s, testified that a couple of weeks before the shooting, he, Gilbert, and Benigno Sentano were in Denny’s Bar, which is across the street from Roma’s. Hector approached Gilbert and a heated argument ensued. Hector said something about Gilbert’s cousin and then threatened to kill Gilbert. The trial court admonished the jury that Rizo’s testimony regarding the argument between Gilbert and Hector was not admissible against Thomas. Benigno Sentano, also a friend of Gilbert’s, testified to the same incident in substantially the same way.

In his own behalf, Thomas testified that he had been drinking since 7 p.m. on Friday, April 15, 1989. He and his brothers, Hector and Philip, had been to their uncle’s house and to several bars, including Just Jim’s Bar, before they went to Roma’s Bar after 4 a.m.

Thomas was carrying a loaded gun that he began carrying six years earlier when he and his brother, Peter, were shot by Gilbert’s cousin as they walked down the street. Thomas was shot in the face, and Peter was killed. At the time of Gilbert’s shooting, Thomas claimed that he did not know that it was Gilbert’s relative who had previously shot him and killed his brother. He testified that he did not even know Gilbert. In addition, Thomas stated that Hector did not know that he was carrying a gun on the night of Gilbert’s shooting.

When the three brothers arrived at Roma’s, they parked in the back because there were no spaces on the street. Hector kept the car keys. After going in through the front door, Thomas saw Gilbert playing pool with his friends. An angry Gilbert and his five friends stepped toward Thomas with their pool cues in their fists. When Gilbert reached for something in his pocket, Thomas thought he was going to shoot him, so he pulled his .357 revolver from his waistband and shot Gilbert twice from a distance of 10 to 12 feet.

After Thomas fired the shots, he heard screaming and someone began shooting at him. The bar was smoky and crowded, and he did not know who was shooting at him. He did not hear Officer Guerrero announce that he was a police officer. Thomas ran to the washroom and then crawled down the back hallway toward the back door. After some difficulty, he went out the back door.

Thomas testified that Hector did not drive him away. He did not even see Hector or Castillo after he left the bar. Since the car was locked, he ran to a nearby prairie where he wrapped the gun in red plastic and put it into the ground. He then went near his old grammar school and fell asleep in a gangway. When Thomas awoke in the morning, he called his wife, who told him that the police were looking for him. Thomas went to a relative’s home to clean up and eat something, then surrendered himself to the police.

At the police station, Thomas was hung over. He directed the police to the gun and gave a signed confession, which substantially corroborated his trial testimony.

Over defense counsel’s objection, the prosecutor was allowed to cross-examine Thomas about the details of the previous incident during which he and his brother, Peter, were shot. Thomas denied that he and his brother were trying to force their way into the 56-year-old man’s home at the time. The defense counsel’s objection was overruled. When the prosecutor asked Thomas if he or his brother provoked the shooting in any way, the defense counsel’s objection was sustained.

On redirect examination, the defense counsel elicited that Thomas was not charged with a crime, but the man who did the shooting was charged -with shooting his brother. On re-cross-examination, the prosecutor asked whether the man was charged only with involuntary manslaughter because of what Thomas and his brother were doing at the time. The trial court sustained defense counsel’s objection and instructed the jury to disregard it.

During the jury instruction conference, Thomas’ defense counsel objected to Illinois Pattern Jury Instructions, Criminal, No. 3.11 (2d ed. Supp. 1989) (hereinafter IPI Criminal 2d No. 3.11 (Supp. 1989)) on prior inconsistent statements. The trial court allowed the instruction.

Following closing arguments, the jury convicted Thomas of first degree murder and Hector of first degree murder under the accountability theory. The trial court then sentenced Thomas to 34 years’ imprisonment and Hector to 28 years’ imprisonment.

On appeal, Hector asserts that he is not accountable for first degree murder because of Thomas’ actions before, during, and after the shooting of Gilbert Trinidad. Hector contends that his conviction was based on speculation and suspicion, not facts. Although the State proved that Hector and Gilbert had argued a couple of weeks before the shooting, defendant contends that there was no evidence presented that the argument was part of any plan between Hector and Thomas to harm Gilbert.

In addition, Hector declares that there was no evidence presented that Hector knew that Thomas had a gun when they entered Roma’s Bar; that Hector’s leaving the bar with Castillo aided or facilitated the shooting; that Hector’s comments to Castillo referred to anything more than a verbal altercation or fist fight; or that Hector aided Thomas after the shooting.

Defendant’s reliance on People v. Evans (1981), 87 Ill. 2d 77, 85, is inapplicable because Evans was decided under the former rule that the State must exclude every reasonable hypothesis of innocence when a conviction is based on circumstantial evidence. The supreme court stated that “[t]he evidence presented leads to the conclusion that the State failed to meet its burden of excluding every reasonable hypothesis of innocence. Consequently, [defendant’s] convictions *** were correctly reversed by the appellate court.” Evans, 87 Ill. 2d at 85.

When a conviction is based solely on circumstantial evidence, it will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) No longer is the State required to exclude every reasonable hypothesis of innocence. (People v. Pintos (1989), 133 Ill. 2d 286, 291.) The correct standard is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Collins, 106 Ill. 2d at 261.

Defendant contrasts this case to People v. Calvillo (1988), 170 Ill. App. 3d 1070, 1077, where the defendant was found accountable for murder after driving the shooter to the scene knowing that he was planning to kill someone, identifying the victim for the shooter, and waiting for the shooter until after the shooting. The court concluded that the defendant facilitated the offense and thereby increased the strong probability of the victim’s death or great bodily harm. Calvillo, 170 Ill. App. 3d at 1077.

Hector concludes that the evidence against him only raises a suspicion that he may have been involved in the shooting. He maintains that the inferences necessary to find him accountable cannot be made from the evidence presented because there are too many missing links.

The State responds that the evidence, viewed in the light most favorable to the prosecution, proves Hector guilty beyond a reasonable doubt of first degree murder under the accountability theory. The State argues that the surrounding circumstances that imply Hector’s intent to promote or facilitate Gilbert’s murder include (1) the testimony of Rizo and Sentano about Hector’s threat to kill Gilbert during an argument a couple of weeks before the shooting; (2) Castillo’s testimony that Hector took him outside and told him that something was going to happen to Gilbert; and (3) Castillo’s testimony that he saw Thomas run out of Roma’s back door toward Hector’s car and that he saw two people in the car when it drove away.

We are disturbed by the State’s gross mischaracterization of the record in its brief. According to the State, “Mr. Castillo heard gunfire ring out in Roma’s Bar and he observed Thomas run out the rear door of the bar and get in Hector’s car. Mr. Castillo observed both Hector and Thomas drive away from the scene of the crime.” If that had been the testimony, this appeal would be very different. That, however, was not the testimony. The record reveals that Castillo testified that he saw Thomas run out the back door of Roma’s toward the car and that he saw two people in the car as it drove away. He never testified that he saw Thomas get into the car or that he saw Thomas in the car as Hector drove away.

In addition, the State incorrectly maintains that Wills’ testimony corroborates Castillo’s testimony and contradicts Thomas’ testimony. While Castillo testified that he saw two people in the car when it drove away, Wills testified that she saw Hector twice drive by alone immediately after the shooting. Regarding Thomas’ testimony that Hector was not in the bar at the time of the shooting, Wills’ testimony corroborates that fact because she saw Hector leave the bar before the shooting began. In addition, Wills’ testimony corroborates Thomas’ testimony that Hector did not drive him away from the scene because Wills testified that immediately after the shooting, Hector drove by twice. She saw only one person in the car.

The State hypothesizes that Thomas may have ducked down in the car when Hector drove by twice. Even if that hypothesis was accurate, it does not explain how Wills’ testimony corroborates Castillo’s testimony and contradicts Thomas’ testimony.

The State contends that Castillo’s testimony, by itself, was sufficient to support Hector’s conviction for first degree murder under the theory of accountability. To support that argument, the State cites People v. Nightengale (1988), 168 Ill. App. 3d 968, 973, where the court held that the testimony of one eyewitness is sufficient to support a conviction. Nightengale is inapplicable, however, because Castillo was not an eyewitness to the shooting.

In addition, the State answers defendant’s argument that Hector did not know that Thomas was carrying a gun by remarking that it was common knowledge that Thomas had been carrying a gun since he was shot six years earlier. However, there was no evidence presented at trial regarding any common knowledge that Thomas always carried a gun.

The State concludes that a juror could reasonably infer from Hector’s actions (1) that he knew his brother was about to murder Gilbert; (2) that he lured Castillo away from the scene so that he would not interfere with the plan to kill Gilbert, who was a friend of Castillo’s; and (3) that he got into his car and started the engine to prepare for a getaway. We disagree.

When a conviction is based on circumstantial evidence, the jury can make inferences from the actual evidence only if they are reasonable. (Tot v. United States (1943), 319 U.S. 463, 467, 87 L. Ed. 1519, 1524, 63 S. Ct. 1241, 1244.) For a conviction on the accountability theory, the State must establish beyond a reasonable doubt that (1) the defendant solicited, ordered, abetted, agreed, or attempted to aid another in the planning or commission of the crime; (2) the defendant’s participation took place before or during the commission of the crime; and (3) the defendant had the concurrent intent to promote or facilitate the commission of the crime. People v. MacFarland (1992), 228 Ill. App. 3d 107, 122; Ill. Rev. Stat. 1987, ch. 38, par. 5 — 2.

There must be proof of the intent to aid, abet, or attempt to aid another in the perpetration of the crime. (Evans, 87 Ill. 2d at 83.) To prove that the defendant had the specific intent to promote or facilitate the crime, the State must establish beyond a reasonable doubt that the defendant shared the criminal intent of the principal or was engaged in a common design. (People v. Stanciel (1992), 153 Ill. 2d 218, 234-35.) That proof can be inferred from the surrounding circumstances. People v. Chavez (1992), 228 Ill. App. 3d 54, 72.

Although the person does not have to actively participate in the overt act, mere presence at the scene, even with knowledge that the crime is being committed, is not sufficient to establish accountability for the actions of another. (Evans, 87 Ill. 2d at 83; MacFarland, 228 Ill. App. 3d at 122.) In addition, mere presence at the scene of a crime coupled with flight from the scene of a crime is insufficient to establish accountability. (People v. Lopez (1979), 72 Ill. App. 3d 713, 716.) Nevertheless, circumstances showing there was a common design to commit a crime (People v. Tate (1976), 63 Ill. 2d 105, 109; MacFarland, 228 Ill. App. 3d at 122), or presence at the scene of the crime in addition to acts after its commission may be enough to establish accountability. MacFarland, 228 Ill. App. 3d at 122.

Viewing the evidence in the light most favorable to the prosecution, the State did not prove beyond a reasonable doubt that Hector was guilty of first degree murder under the accountability theory. The evidence showed that Hector had an argument with Gilbert a couple of weeks before the shooting. During that argument, Hector threatened to kill Gilbert. Thomas was not present at the time nor was there any indication that he was aware of the argument.

In addition, the evidence most favorable to the prosecution showed that Hector and Thomas visited a number of bars on the night of the shooting. Around 4 a.m., they arrived at Roma’s Bar. Soon afterwards, Hector and Castillo left the bar. On his way out, Castillo told Gilbert to “watch his back.” Then, Thomas approached Gilbert and asked him for a cigarette. When Gilbert refused, Thomas shot him five times. Thomas ran out the back door of Roma’s toward Hector’s car. Castillo then saw two people in Hector’s car as it sped away.

Immediately afterwards, Gilbert’s girlfriend, Cynthia Wills, saw Hector drive by twice by himself. Within minutes, Hector’s car was stopped by police at 92nd Street and Commercial Avenue. Only Hector was in the car. The next day, the police found the murder weapon buried in a prairie about four blocks from Roma’s Bar.

The most important evidence in the State’s favor was Hector’s statement to Castillo shortly after they left the bar. Hector told Castillo that he knew that he was friends with Gilbert, that Gilbert’s cousin had “fucked up,” that something might or was going to happen to Gilbert, and that Hector did not want it to come between their friendship. That statement, however, did not show that Hector knew that Thomas was going to kill Gilbert that night or that Hector aided him in any way.

All that evidence is not sufficient to prove beyond a reasonable doubt that Hector abetted, agreed, or attempted to aid Thomas in the planning or commission of the shooting either before or during the shooting or that Hector had the concurrent, specific intent to promote or facilitate the commission of the shooting. Thus, Hector’s conviction for first degree murder under the accountability theory is reversed due to insufficient evidence.

Defendant Thomas asserts on appeal that he was denied a fair trial when (1) the State repeatedly insinuated on cross-examination that he had committed another crime six years earlier without presenting any proof; and (2) the trial court erred by giving the prior inconsistent statements instruction (IPI Criminal 2d No. 3.11 (Supp. 1989)) even though the differences between his trial testimony and his custodial statement were insignificant.

Thomas waived both issues on appeal because he failed to raise them in his motion for a new trial. Failure to object at trial and raise an issue in the written motion for a new trial constitutes a waiver of that issue (People v. Enoch (1988), 122 Ill. 2d 176, 188) and it cannot be urged as grounds for reversal on review. (People v. Caballero (1984), 102 Ill. 2d 23.) Furthermore, the plain error rule (134 Ill. 2d R. 615(a)) is not applicable because the record does not plainly show either that the alleged errors affected Thomas’ substantial rights or that the evidence was closely balanced. People v. Pickett (1973), 54 Ill. 2d 280, 283.

Based on the foregoing, Hector’s conviction for first degree murder under the accountability theory is reversed and Thomas’ conviction for first degree murder is affirmed.

Reversed in part; affirmed in part.

RIZZI and TULLY, JJ., concur.