author: JUSTICE NICKELS

text:
    AUGUST CAPONI, Indiv., and as Special Adm’r of the Estate of Antoinette Caponi, Deceased, Plaintiffs-Appellees, v. LARRY’S 66 et al., Defendants-Appellants.
    Second District
    No. 2—91—1325
    Opinion filed October 8, 1992.
    Rehearing denied November 19, 1992.

      Suzanne Favia, of Fraterrigo, Best & Beranek, of Wheaton, and Fraterrigo, Best & Beranek, of Chicago (James F. Best, of counsel), for appellants.

      Kenneth J. Cortesi, of Chicago, and H. Evan Williams IV, of McKenna, Storer, Rowe, White & Farrug, Kralovec, Marquard, Doyle & Gibbons, Chartered, and Frank E. Jeffers III, all of Wheaton (Paul J. Bargiel, of counsel), for appellees.
   JUSTICE NICKELS

delivered the opinion of the court:

In this negligence action, the circuit court struck defendants’ expert’s deposition testimony as an impermissible contradiction of Lawrence Wegrzyn’s (Larry’s) judicial admissions during his deposition. The circuit court then granted partial summary judgment on the issue of liability in favor of plaintiff, August Caponi, as administrator of the estate of his wife, Antoinette Caponi (Antoinette’s estate), and against defendant, Bernice Wegrzyn, as the special administrator of the estate of her husband, Larry. At this juncture, we note for clarification that Larry died during the pendency of these proceedings from natural causes unrelated to the accident, and his wife was substituted as a party as his special administrator. However, Larry was extensively deposed, and such testimony is central to our consideration of the issues now before us. Therefore, for ease of reference, we will continue to refer to Larry rather than Bernice Wegrzyn as special administrator for Lawrence Wegrzyn.

On defendants’ motion, the circuit court then excluded all issues of liability from the trial as to all parties and, on the court’s own motion, additionally entered summary judgment for August Caponi, individually (August), against Larry and defendants Larry’s 66 (repair shop) and Wayne Wegrzyn (Wayne), who was Larry’s son and partner in the repair shop. Before trial, defendants filed a motion in limine to prevent plaintiffs from calling witnesses to establish Larry’s agency for Wayne and the repair shop on the issue of their liability to Antoinette’s estate, who was the only plaintiff for whom liability remained an issue. The court ruled that liability had been established but neglected to expressly indicate that such ruling was in favor of Antoinette’s estate. After the trial limited to the issue of damages, the jury returned verdicts in favor of Antoinette’s estate and in favor of August and against all defendants. The circuit court thereafter entered an order nunc pro tunc correcting its pretrial ruling on defendants’ motion in limine to reflect that the entry of summary judgment on the issue of liability had been in favor of Antoinette’s estate.

Defendants appeal, asserting that: (1) the court erred in finding Larry’s deposition testimony that the brakes were “high and hard” was a judicial admission, which precluded contradiction by defendants’ expert and which established Larry’s negligence as a matter of law; (2) that the circuit court abused its discretion in entering its nunc pro tunc order because the record of its pretrial ruling did not support such correction; and (3) that the trial court made erroneous and prejudicial evidentiary rulings during the trial on the remaining issue of damages, which require reversal and remand for a new trial.

Larry was an auto mechanic for 35 years and owned and operated the repair shop in partnership with Wayne. On July 16, 1987, a customer brought in a 1966 Ford Thunderbird for repairs. The owners complained that the Thunderbird shook and shuddered when idling and that, although it did not, the engine felt as if it would die out or stall. Defendants had performed all mechanical repairs on the Thunderbird for approximately 15 years.

Although the engine of the Thunderbird did not stall during a test drive by Wayne, he determined that it needed carburetor repairs and that the cause of the complaints was too much gas entering the carburetor, which caused “loading up and flooding out” of the carburetor. At his deposition, Larry testified that “loading up and flooding out” referred to the float on the carburetor letting in too much gas when a car idles, which chokes out the proper amount of air and can cause the engine to stall. Plaintiffs’ expert also testified that sudden hard acceleration from a stopped, idling position can inject additional gas into the already flooded carburetor, which may also cause the engine to stall. However, Larry testified that a rough idle caused by carburetor problems has no effect once a car reaches a speed of 10 miles per hour.

Wayne advised Larry of his diagnosis of the problem and asked him to also drive the Thunderbird to confirm such diagnosis. After completing some paper work at the repair shop at approximately 1 p.m., Larry test drove the car by using it to run some business-related errands. He, too, experienced a rough idle on several occasions when stopped at traffic lights and also reached the conclusion that the carburetor needed repairs. During Larry’s test drive prior to the collision, however, the engine of the Thunderbird did not stall, and it ran smoothly at times other than when idling. As he continued to complete his errands, Larry was travelling eastbound in the curb lane on Lake Street in Addison, which is a four-lane roadway with two lanes of traffic travelling in each direction. After waiting at the stoplight at the intersection of Lake Street and Addison Road, Larry began to proceed. After about 21k blocks, he noticed traffic slowing in the curb lane due to traffic leaving the roadway. The speed limit was 30 miles per hour, but Larry had only reached a speed of 20 miles per hour when the traffic began to slow further. Larry removed his foot from the accelerator, and, after checking traffic and turning on his left turn signal, Larry began to accelerate into the inside lane to go around the slowing traffic. However, another car in the inside eastbound lane was stopped waiting to make a left turn several car lengths in front of the point where Larry began to enter the inside lane. Therefore, approximately half way through the maneuver into the inside lane, Larry applied his brakes only to find that they were, according to his deposition testimony, solid or “hard” and that he could not depress the pedal, which may be described as “high.” Larry attempted to steer the Thunderbird back into the curb lane, but had no steering as well. Based on the high, hard brake pedal and loss of steering, Larry came to the conclusion after the collision that the engine of the Thunderbird had stalled, which he related to both the police and Wayne.

The Thunderbird continued on its last trajectory towards the inside lane and across it, eventually crossing the double yellow lines separating the east and westbound lanes and entering the westbound lanes to strike the car driven by August and in which Antoinette was a passenger. Antoinette died as a result of the injuries she sustained, and August suffered injuries to his left arm, hip and knee, which required reconstructive surgery and which caused him pain and limited his activities after the collision. August, both individually and as administrator of Antoinette’s estate, filed suit sounding in negligence naming as defendants Larry individually and, based on a theory of agency, Wayne and the repair shop.

Antoinette’s estate moved for summary judgment against Larry on the issue of liability, arguing that because the accident occurred on the side of the double yellow line in which Antoinette was a passenger in a car, Larry was liable unless he could offer a nonnegligent explanation for his crossing such line. (See Osborne v. O’Brien (1986), 114 Ill. 2d 35, 41; see also Sughero v. Jewel Tea Co. (1967), 37 Ill. 2d 240, 242; Calvetti v. Seipp (1967), 37 Ill. 2d 596, 598-99.) In opposition to Antoinette’s estate’s motion, Larry asserted that a sudden emergency occurred when the brakes failed, which was a nonnegligent explanation for his conduct of crossing the double yellow line into oncoming traffic.

Both plaintiffs and defendants offered the deposition testimony of an expert to support their arguments for and against summary judgment respectively. Although they agreed on several key points, including the existence of a leak in one of the brakes lines that predated the collision, and both had discounted Larry’s deposition testimony of a high, hard brake pedal, the two experts reached conflicting conclusions on the cause of the collision.

Defendants’ expert concluded that the preexisting hole in the brake line had caused a sudden, unanticipated catastrophic brake failure. However, both experts agreed that such catastrophic brake failure would be distinguished by the brake pedal going all the way to the floor. Thus, to reach his opinion, defendants’ expert expressly ignored Larry’s deposition testimony that the brake pedal was high and hard.

In contrast, plaintiffs’ expert’s opinion was that the hole in the brake line was only a small leak incapable of causing such catastrophic brake failure. In plaintiffs’ expert’s opinion, Larry had not experienced either a high, hard brake pedal or failure of the power steering because loss of engine power would not result in total loss of brakes and steering, but such power-assisted systems would gradually diminish to the equivalent of a system with manual steering and brakes. Therefore, in his opinion, the carburetor problem had nothing to do with the collision. However, in response to a specific request to accept Larry’s description of the brake pedal, plaintiffs’ expert admitted that a brake malfunction was possible due to contamination or shortage of the brake fluid caused by an improper seal of the cap of the master cylinder. Wayne had wired down the master cylinder cap in lieu of the factory-installed clamps in 1979. Plaintiff’s expert further qualified this testimony with his opinion that the wiring of the master cylinder cap had nothing to do with the cause of the collision. Plaintiffs’ expert concluded that no brake failure had occurred and that Larry had failed to apply the brakes.

Larry’s deposition testimony included the following statements describing the brakes and steering at the time of the accident. “I hit the brakes, and I had a solid pedal. There was nothing. *** To my estimate there was no steering. I couldn’t steer. And I know there was no brakes.” In response to questions attempting to clarify this testimony, the following exchanges took place:

“Q. I believe your testimony was that at that point in time when you first stepped on the brake, you realized you had a hard pedal, correct?
A. That’s right.
MR. CORTESI [Plaintiffs’ attorney]: That’s what I am was trying to get to, Jim.
MR. BEST [Defendants’ attorney]: Fine; and then he said, I hit the brakes and had a solid pedal. There was nothing.
MR. CORTESI: I don’t believe the word solid was ever used, and I think the word was hard.
MR. HANDLEY: The transcript will clear that up.
MR. CORTESI: I want to ask him to amplify on what he means by a hard pedal. I don’t remember solid pedal being—
MR. BEST: Page 185, I hit the brakes; and I had a solid pedal. There was nothing.
MR. CORTESI: Where is that at, Jim?
MR. BEST: Page 185, lines 15 to 16.
BY MR. CORTESI:
Q. Okay. Then, the reference I was making to — and I will find it — it’s a hard pedal, and I will just ask him what he means by-
MR. BEST: And I don’t know if he—
MR. HANDLEY [Attorney for owners of the Thunderbird]: You might want to ask him what he means by both?
MR. BEST: They might mean the same.
MR. CORTESI: Right. I got it here somewhere, but—
MR. BEST: I don’t see that as a big deal.
MR. CORTESI: Okay. Fine.
BY MR. CORTESI:
Q. In your mind, do solid pedal and hard pedal mean the same thing?
BY THE WITNESS:
A. Yes.
Q. Okay. Could you explain in greater detail what you mean or understand solid pedal or hard pedal to mean?
A. Well, I meant that I couldn’t push the brake pedal down at all.
Q. Anything else?
A. No.
Q. When you say you couldn’t push the brake pedal down at all, does that mean because the brake pedal was all the way to the floor; or does that mean the brake pedal was still on high and wouldn’t move?
A. It was all the way to the top and wouldn’t move.
Q. What do you mean by top?
A. It wouldn’t go down.
Q. It wouldn’t go down?
A. It wouldn’t go down.
* * *
Q. Okay. And both of your hands were on the wheel?
A. Yes, sir.
Q. At three and at nine o’clock?
A. Right.
Q. Did the steering wheel move at all?
A. No.
Q. Was it frozen?
A. To the point you couldn’t move it.”

At his deposition, Larry also testified that prior to taking the Thunderbird for a test drive, he was aware that it had a carburetor problem that Wayne had diagnosed as causing it to “load up and flood out” and that Larry himself had seen gas dripping from the carburetor. Larry testified that such problem could cause the Thunderbird to die out, which would result in the car losing its brakes and steering. Although Larry testified that, in his opinion, it was dangerous to drive a car that might die out, the engine of the Thunderbird had not died during any of the times it was driven by its owners, Wayne, or Larry despite its carburetor problems. Both Wayne and plaintiffs’ expert offered an opinion that it is reasonable and proper for a mechanic to test drive a car with a carburetor problem if the engine is not dying out.

In response to Larry’s opposition to his motion for summary judgment, Antoinette’s estate moved to strike defendants’ expert’s testimony as an impermissible contradiction of Larry’s judicial admission that the brake pedal was high and hard immediately before the accident. Therefore, on July 27, 1990, the circuit court granted Antoinette’s estate’s motion to strike defendants’ expert’s testimony finding that Larry’s testimony that the brake pedal was high and hard was a judicial admission that could not be contradicted by expert testimony. The court also granted Antoinette’s estate’s motion for summary judgment finding that, despite Larry’s testimony of brake failure, he was negligent in driving the Thunderbird because he knew its engine might stall and that the brakes and steering would fail as a result. Therefore, the brake failure was not a nonnegligent explanation for the accident.

The motion for summary judgment had been directed only to the liability of one defendant as to one plaintiff. Based on that finding of liability, however, defendants moved to limit the issues at trial to only that of damages as to all plaintiffs and all defendants and, for purposes of the such motion, admitted both agency and lack of any contributory negligence on the part of either August or Antoinette. The court granted defendants’ motion on August 21, 1990, in an order that referred only to “August Caponi, Individually,” but its accompanying letter of opinion explained that order granted the defendants’ motion to limit the issues at trial to the damages claimed by “August Caponi, Individually and the Estate of Antoinette Caponi against Larry’s 66, the Estate of Lawrence Wegrzyn and Wayne Wegrzyn.”

Several months later in November 1990, the circuit court on its own motion entered an order granting summary judgment on the issue of liability in favor of “August Caponi.” The letter of opinion that accompanied that order expressly noted that it was based on defendants’ prior motion to limit the issues at trial to only damages as to all plaintiffs and all defendants.

On May 20, 1991, during a hearing on defendants’ pretrial motion in limine, defendants sought to bar Wayne and Bernice Wegrzyn from testifying as adverse witnesses on the question of agency and expressly relied on the court’s ruling limiting the case to the issue of damages only. Plaintiffs responded by noting that the court had not ruled on the issue of liability as to “Mr. Caponi against Wayne Wegrzyn and Larry’s 66” and the need, therefore, to establish agency as to those two defendants. Defendants responded that agency had been admitted, and the circuit court ruled finding “liability against Larry’s 66 and also against Wayne Wegrzyn.” The circuit court therefore granted that portion of defendants’ motion in limine and barred Wayne and Bernice Wegrzyn from testifying as adverse witnesses at the trial, which proceeded on the sole issue of damages.

The circuit court denied the balance of defendants’ motion in limine seeking to exclude certain evidence and in the course of the trial overruled defendants’ objections to such evidence. The objected-to evidence included the introduction of a wedding picture of August and Antoinette, the testimony of the attending physician at the scene that other emergency personnel told her that Antoinette was conscious immediately following the accident, the testimony of August’s son-in-law that August could no longer perform services for his daughter and son-in-law as August had prior to- the accident, and August’s testimony that an unidentified hospital or emergency personnel said “we got you back” to August when he regained consciousness and August’s response to that statement. In addition, the court sustained defendants’ objection to August’s testimony that if he had the chance, the last thing he would have told his wife was that he loved her. Finally, the court overruled defendants’ objection to plaintiffs’ rebuttal during closing arguments. Defendants had argued during their closing argument that this was a case of mature individuals and, therefore, the duration of damages was shorter. Defendants argued that this was not the type of case in which August, who was retired, had lost his career or ability to support himself, did not face a lot of medical bills in the future due to his mature age, and still had remaining family despite the loss of his wife. Defendants argued that Antoinette, whose children were adults, was not a mother of young children deprived of guidance and upbringing. In rebuttal plaintiffs were permitted to argue over defendants’ objection that it was ridiculous to assert that an older person’s pain and suffering was less than somebody else’s and that life becomes more, rather than less, valuable as one gets older. The jury returned verdicts for Antoinette’s estate in the amount of $581,096.66, which included $75,000 for pain and suffering, and for August, individually, in the amount of $471,501.50, including $190,000 for disability, $195,000 for pain and suffering, and $10,000 for disfigurement.

In a post-trial motion, defendants pointed out a potential ambiguity in the circuit court’s July 27, 1990, order which granted summary judgment on the issue of liability to Antoinette’s estate against Bernice Wegrzyn as special administrator for her husband’s estate, and its May 20, 1991, pretrial ruling, which granted summary judgment on the issue of “liability against Larry’s 66 and also against Wayne Wegrzyn” without identifying Mr. Caponi’s capacity as administrator of Antoinette’s estate. Before responding to such motion, plaintiffs moved to supplement the record to amend those rulings. The court granted plaintiffs’ motion and specifically amended its July 27, 1990, order to reflect that summary judgment had been entered in favor of Antoinette’s estate against Bernice Wegrzyn as special administrator for her husband’s estate and amended its May 20, 1991, ruling to reflect that summary judgment was granted in favor of Antoinette’s estate against Wayne and the repair shop.

Defendants appeal and assert that: (1) the circuit court erred in finding Larry’s deposition testimony that the brake pedal was high and hard was a judicial admission, which precluded contradiction by defendants’ expert, and which further required summary judgment against Larry on the issue of liability because such judicial admission established that there was no nonnegligent explanation for Larry’s crossing the double yellow line as a matter of law; (2) the record of the circuit court’s May 20, 1991, ruling contained no error susceptible to correction nunc pro tunc; and (3) the circuit court abused its discretion making certain evidentiary rulings to defendants’ prejudice, which require reversal and remand for a new trial on the issue of damages.

The purpose of a motion for summary judgment is not to try a question of fact, but rather to determine if a question of fact exists. (Addison v. Whittenberg (1988), 124 Ill. 2d 287, 294.) It is proper when, construing the evidence in the record strongly against the movant and liberally in favor of the opponent (In re Estate of Whittington (1985), 107 Ill. 2d 169, 177; Dockery v. Ortiz (1989), 185 Ill. App. 3d 296, 304-05), the pleadings, depositions, and affidavits demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c); Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 421; Hagy v. McHenry County Conservation District (1989), 190 Ill. App. 3d 833, 842). To prevent entry of summary judgment, an opponent must present a bona fide factual issue and not merely general denials and conclusions of law. (Wil-Shore Motor Sales, Inc. v. Continental Illinois Bank & Trust Co. (1984), 130 Ill. App. 3d 167, 172.) An issue is “genuine” only if there is evidence to support the position of the nonmoving party. (N.W. v. Amalgamated Trust & Savings Bank (1990), 196 Ill. App. 3d 1066, 1075.) Thus, although the party opposing summary judgment need not prove his case at this preliminary stage, he must present some factual basis that would arguably entitle him to a judgment under the applicable law. Fuller v. Justice (1983), 117 Ill. App. 3d 933, 939.

If there is no dispute as to any material fact and the undisputed facts permit but one inference, it is only the legal effect of such facts that is at issue, and a court should grant summary judgment. (First State Bank v. Busse (1984), 126 Ill. App. 3d 577, 580; Dockery, 185 Ill. App. 3d at 305; Vincent DeVito, Inc. v. Vollmar Clay Products Co. (1989), 179 Ill. App. 3d 325, 327.) The circuit court may grant summary judgment on such undisputed facts only if all the evidence, viewed in the light most favorable to the nonmovant, permits no inferences from which different conclusions may be drawn and with which no reasonable person could disagree. Dockery, 185 Ill. App. 3d at 305.

The propriety of the court’s grant of summary judgment on the issue of liability in favor of Antoinette’s estate requires an analysis of several steps. First, we must determine if the circuit court properly determined as a matter of law that Larry’s deposition testimony was a judicial admission, which could not be contradicted by defendants’ expert’s testimony and which therefore required striking such testimony. Second, if Larry’s description of the brake pedal and steering immediately prior to the accident was a judicial admission, did the circuit court properly find such undisputed facts permitted but one inference from which reasonable persons could reach but one conclusion (see Dockery, 185 Ill. App. 3d at 305), which was a finding of liability against Larry.

“A judicial admission is a deliberate, clear, unequivocal statement of a party about a concrete fact within that party’s peculiar knowledge.” (Hansen v. Ruby Construction Co. (1987), 155 Ill. App. 3d 475, 480; see also McCormack v. Haan (1960), 20 Ill. 2d 75, 78-79.) It must concern a concrete fact and not be merely a matter of inference, opinion, estimate, or uncertain memory (Hanson v. Darby (1968), 100 Ill. App. 2d 339, 348), and such admission of fact carries with it an admission of other facts necessarily implied from it (Dixon v. City of Chicago (1981), 101 Ill. App. 3d 453, 455). A judicial admission may not be contradicted and is binding upon the party making such admission. (Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 87.) Although statements made during a discovery deposition are normally treated only as evidentiary admissions, which may be contradicted, such statements may be “so deliberate, detailed, and unequivocal, as to matters with the party’s personal knowledge” that the statements will be held to be judicial admissions. (Lindenmier, 156 Ill. App. 3d at 87.) A party may contradict a judicial admission neither with his own contrary testimony nor that of other occurrence witnesses or experts. (Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1979), 71 Ill. App. 3d 562, 568 (party’s own affidavit contradicting deposition testimony); Hansen, 155 Ill. App. 3d at 479 (same); Hansen v. Ruby Construction Co. (1988), 164 Ill. App. 3d 884, 888 (contradictory affidavit of occurrence witness).) The determination of whether a party’s statement is sufficiently unequivocal to be considered a judicial admission is a question of law. Hansen, 155 Ill. App. 3d at 480-81.

In this instance, Larry not only testified that he had a “solid” brake pedal, but when asked to explain what that description meant, repeatedly elucidated that the brake pedal was all the way to the top and would not move down at all and that he had his foot on the brake pedal the entire time trying to depress it. There was no equivocation in Larry’s testimony, and the condition of the brake pedal before the collision was not an opinion, estimate, or inference, but rather was an observed fact solely within Larry’s knowledge. (See Hanson, 100 Ill. App. 2d at 348.) Thus, Larry’s testimony was “a deliberate, clear, unequivocal statement *** about a concrete fact” and was a judicial admission. See Hansen, 155 Ill. App. 3d at 480.

Defendants urge, however, that we adopt the reasoning of the Appellate Court, Fifth District, in Brummet v. Farel (1991), 217 Ill. App. 3d 264, which created a “swiftly moving events” exception to the judicial admission rule. In Brummet, the plaintiff was a passenger in the truck driven by his father, who was a defendant, when it collided head-on with another car driven by a second defendant. The father moved for summary judgment based on the plaintiff’s deposition testimony that the father never crossed the center line. Plaintiff offered in opposition the deposition of the second driver, who testified that it was the father who had crossed the center lipe. The appellate court majority found that the fluid event of a fast-moving car wreck was a situation in which mistake was likely. Therefore, despite the unequivocal testimony of the plaintiff, the likelihood of such mistake rendered the plaintiff’s statements equivocal and an exception to the judicial admission rule. Brummet, 217 Ill. App. 3d at 268-69.

However, we find that Brummet can be distinguished on the basis of its unique facts, which the Appellate Court, Fifth District, discussed in detail, rather than application of a swiftly moving events exception. In Brummet, the two defendants had antagonistic interests, and the contradictory testimony was that of opposing parties, each of whom was an occurrence witness. (Brummet, 217 Ill. App. 3d at 265-66.) In contrast, in this instance, the contradictory testimony is neither that of a party, nor is it even the testimony of an occurrence witness, but rather is that of an expert attempting to determine the cause of the collision after the fact. Similarly, the only support for the majority’s opinion in Brummet also concerned the testimony of a plaintiff passenger seeking damages from both the driver of the car in which she was riding and from the driver of the other car involved in the collision. (McCormack, 20 Ill. 2d at 77.) However, the supreme court in McCormack did not create a swiftly moving events exception, but rather merely recognized that whether a party’s statement may be deemed a judicial admission depends on the totality of the party’s testimony and the contradictory occurrence testimony of other parties. (McCormack, 20 Ill. 2d at 78-79.) In contrast in this instance, defendants’ expert was not a party who was a witness to the events.

We may similarly dispose of the remaining authority cited by defendants to support their argument that Larry’s statements describing the brake pedal were not judicial admissions. In Misch v. Meadows Mennonite Home (1983), 114 Ill. App. 3d 792, the plaintiff was asked the distance travelled between the time she activated her turn signal and the time she began a turning maneuver. (Misch, 114 Ill. App. 3d at 801-02.) Although distance can be a concrete fact if it has been ascertained using a ruler or tape measure, all distances are merely estimates without the use of such instruments, and an estimate may not be a judicial admission. Hanson, 100 Ill. App. 2d at 348.

In Stambaugh v. International Harvester Co. (1982), 106 Ill. App. 3d 1, the plaintiff testified that the securely fastened gas cap on his farm tractor had blown off, which was corroborated by the testimony of other farmers but which all of the experts, including the plaintiff’s own experts, testified was impossible if the cap was in fact securely fastened. (Stambaugh, 106 Ill. App. 3d at 19-20, rev’d on other grounds (1984), 102 Ill. 2d 250.) However, the plaintiff did not offer the testimony of his experts to contradict his alleged judicial admission, but rather the defendant urged the experts’ opinions in contradiction of the plaintiff’s testimony. Thus, the application of the rule barring contradiction by a party of the party’s own judicial admission was not at issue. Moreover, the plaintiff’s expert’s opinion was not a judicial admission and could be controverted by the plaintiff’s own testimony of concrete facts.

In this instance, the circuit court was correct in finding as a matter of law that Larry’s deposition testimony that the brake pedal of the Thunderbird was high and hard was a judicial admission and in striking the opinion of defendants’ expert, who had expressly disregarded and contradicted such judicial admission. However, we must now consider the second step in our analysis and determine the effect of such judicial admission on the circuit court’s grant of summary judgment in favor of Antoinette’s estate and against Larry.

Absent some evidence of a nonnegligent explanation for the defendant’s conduct, a collision between a vehicle occupied by the plaintiff passenger with one driven by the defendant that occurs on the plaintiff’s side of the highway establishes the defendant’s liability as a matter of law. (See Osborne v. O’Brien (1981), 114 Ill. 2d 35, 41; see also Sughero, 37 Ill. 2d at 242; Calvetti, 37 Ill. 2d at 598-99.) Thus, the question presented is whether defendants adduced some evidence of a nonnegligent explanation for Larry’s conduct in crossing the double yellow line and entering the lane of oncoming traffic in which August and Antoinette were driving.

In granting Antoinette’s estate’s motion for summary judgment, the circuit court accepted Larry’s deposition testimony the brakes and steering of the Thunderbird failed and that such failure was caused by the stalling of the engine during Larry’s test drive. The circuit court then concluded that Larry’s knowledge that a carburetor problem may cause stalling and further acknowledgement that it is dangerous to drive a car with an engine that will stall made such test drive negligent. However, the uncontradicted evidence is that the first and only time the engine of the Thunderbird stalled was immediately prior to the collision. Wayne testified that the car had not stalled during his test drive and that the owners had not experienced stalling despite the carburetor problems. Wayne’s affidavit recited that it is reasonable and proper to test drive a car with, a carburetor problem if it is not stalling. Even plaintiffs’ own expert agreed that if a mechanic was confident that a car with a carburetor problem would not stall, a test drive was proper.

Construing the inferences from these undisputed facts in favor of the nonmovant, a reasonable jury could have concluded that, despite the Thunderbird’s carburetor problems, Larry had no reason to believe that it would stall and that the resultant brake failure was not due to Larry’s negligence. Thus, the trial court erred as a matter of law in finding that Larry had failed to offer some evidence of a nonnegligent explanation for crossing into the plaintiffs’ lane of traffic and in granting Antoinette’s estate’s motion for summary judgment on the issue of liability.

In light of our resolution of this issue, we need not consider the propriety of the circuit court’s nunc pro tunc order correcting the record of its ruling on defendants’ motion in limine. However, because the evidentiary errors raised on appeal are likely to recur on remand, we address such of defendants’ objections to the admission of evidence as the circuit court overruled. We also note that the admissibility of evidence is committed to the sound discretion of the circuit court (Gilman v. Kessler (1989), 192 Ill. App. 3d 630, 647) and consider such alleged errors within the confines of that standard of review.

Defendants first assert that the circuit court erred in admitting the wedding photograph of August and Antoinette because it was irrelevant and prejudicial. The circuit court allowed the photograph as evidence of the origin of the marriage relationship of August and Antoinette.

The relevance of a photograph is established where it tends to prove a matter in controversy. (Bullard v. Barnes (1984), 102 Ill. 2d 505, 519.) In claims for loss of society, our supreme court has approved the depiction of a decedent’s relationships through the use of photographs or videos. (Drews v. Gobel Freight Lines, Inc. (1991), 144 Ill. 2d 84, 89; see also Barenbrugge v. Rich (1986), 141 Ill. App. 3d 1046, 1056.) If a photograph has sufficient probative value, even if inflammatory or prejudicial, it should be admitted, and the decision whether a photograph’s probative value outweighs its prejudicial effect rests within the sound discretion of the circuit court. (Bullard, 102 Ill. 2d at 519.) If a photograph is relevant and probative, it is not inadmissible merely because it is cumulative. Barenbrugge, 141 Ill. App. 3d at 1056.

In this instance because August sought damages for the loss of Antoinette’s society, the value of their relationship was at issue, and the wedding photograph was relevant to such relationship. Defendants assert that the age of the photo in this instance renders it distinguishable from the videos found admissible in Drews, which had been taken shortly before the plaintiff’s decedent’s death and which depicted his relationship with his wife and small sons. (Drews, 144 Ill. 2d at 89.) However, the value of Antoinette’s society to August included the loss of emotional, intangible aspects including companionship, guidance, and felicity (Elliot v. Willis (1982), 92 Ill. 2d 530, 535; see also Countryman v. County of Winnebago (1985), 135 Ill. App. 3d 384, 388; Brown v. Metzger (1983), 118 Ill. App. 3d 855, aff’d (1984), 104 Ill. 2d 30), and the value of such elements is impacted by the duration of a relationship. We cannot say that the circuit court’s determination that any prejudice from the wedding photograph was outweighed by its probative value in assisting the jury’s determination of the value of August’s relationship with Antoinette in this instance was error. See Bullard, 102 Ill. 2d at 519-20.

Defendants next objected to the admission of certain testimony as hearsay including Antoinette’s statements to paramedics, which were testified to by an emergency-room physician who was called to the scene to treat Antoinette, and August’s testimony of statements by an unidentified hospital employee made upon August’s regaining consciousness at the hospital after the collision. Similarly, defendants assert that Antoinette’s attending physician at the scene of the collision should not have been permitted to give an opinion on Antoinette’s pain because such opinion was based on alleged hearsay evidence.

Hearsay evidence is in-court testimony of a statement made out of court, which is offered as an assertion of the truth of the matters contained in the statement and the value of which rests on the credibility of someone other than the witness. (People v. Carpenter (1963), 28 Ill. 2d 116, 121.) Statements offered not for the truth of the matter asserted, but rather for another purpose, are not hearsay. (Smith v. Solfest (1978), 65 Ill. App. 3d 779, 783.) Thus, out-of-court statements offered as evidence of an individual’s state of mind or as evidence of “such other things as proof of a state of mind tends to establish” are not hearsay and are admissible. City of Streator v. Industrial Comm’n (1982), 92 Ill. 2d 353, 365.

The rule prohibiting admission of hearsay evidence is not absolute, and it is subject to many exceptions. (City of Streator, 92 Ill. 2d at 365.) Hearsay statements made under circumstances of stress are one exception to the bar against hearsay evidence because such statements are inherently reliable. (In re Marriage of L.R. (1990), 202 Ill. App. 3d 69, 80-81; In re Wheeler (1980), 86 Ill. App. 3d 564, 569.) However, such statement must be made while the declarant is under stress or excitement, prompted by an event or condition that caused such stress or excitement statement, and must relate to such event or condition. In re Marriage of L.R., 202 Ill. App. 3d at 80-81.

Similarly, statements made to a physician for the purposes of treatment are an exception to the bar against hearsay evidence because an injured individual is presumed not to “prevaricate at the very instant of his injury or while he is stating his physical condition to a physician from whom he expects and hopes to receive medical aid, nor will he be presumed to feign disease, pain or distress under those conditions in which he is ordinarily observed by strangers.” (Greinke v. Chicago City Ry. Co. (1908), 234 Ill. 564, 572; see also Jensen v. Elgin, Joliet & Eastern Ry. Co. (1962), 24 Ill. 2d 383, 388.) A physician may testify as to information received from the patient or from outside sources for such purposes of diagnosis. In re Wheeler, 86 Ill. App. 3d at 569; see also Moore v. Bellamy (1989), 183 Ill. App. 3d 110, 115 (excited utterance exception applied to statements of bystander).

Finally, an expert may give an opinion that will aid the fact finder in resolving a question of fact. (Ketchum v. Dura-Bond Concrete, Inc. (1989), 179 Ill. App. 3d 820.) To establish that a witness is an expert, it need only be shown that such witness, because of education, training or experience, possesses knowledge of a specialized nature beyond that of an average person. (134 Ill. 2d R. 220(a)(1); Atkins v. Thapedi (1988), 166 Ill. App. 3d 471, 475.) An expert may base his opinion on evidence, which is otherwise inadmissible hearsay, if such evidence is reasonably relied upon by experts in the field, and such evidence may be admitted as nonhearsay for the limited purpose of explaining the basis of an expert’s opinion if the court in its discretion finds it otherwise meets the minimum standards of reliability. (City of Chicago v. Anthony (1990), 136 Ill. 2d 169, 185-86.) It can hardly be doubted that a physician is an expert on matters of trauma and injury and that physicians routinely rely on the information gathered by other medical personnel. Thus, a medical witness may offer an opinion that a condition or injury is capable of causing pain (see Chicago, Burlington & Quincy R.R. Co. v. Martin (1884), 112 Ill. 16), which may be based on reliable statements by the patient describing symptoms to medical personnel other than the physician himself.

Antoinette’s attending physician at the scene testified that, although Antoinette was unconscious at the time of the physician’s arrival, paramedics told the physician that Antoinette was conscious for a period of time after the collision and complained of shortness of breath and abdominal and back pain. The physician also testified that the type of injury that Antoinette sustained, which was a rupture of the aorta, causes a “searing, boring, deep pain from the chest going through to the back.” Such statements were not hearsay as to Antoinette’s condition of consciousness because they were not offered for the truth of the matter asserted, but rather merely to show that Antoinette was conscious and capable of experiencing pain and suffering as claimed. As to the substance of Antoinette’s complaints of pain and shortness of breath, such statements were subject to an exception to the hearsay rule as statements necessary for her medical treatment. Antoinette’s statements to the paramedics, who were themselves medical personnel, describing the location and type of pain she was experiencing immediately after the collision were made with the expectation and hope of receiving medical aid. That those statements were then conveyed to the physician does not change the nature or inherent reliability of Antoinette’s statements, or the purpose for which they were made, which was to receive treatment. Finally, defendants’ assertion that Antoinette’s physician could not offer an opinion that her injuries were capable of causing pain is blatantly without merit. It was not an abuse of discretion to admit the physician’s recitation of the paramedics’ statements describing Antoinette’s condition as nonhearsay, the content of those statements as information necessary to the physician’s diagnosis as an exception to the rule against hearsay, or the physician’s expert opinion that Antoinette’s injuries were capable of causing pain.

Similarly, August’s testimony of statements made to him during his emergency treatment by unidentified medical personnel and his response thereto was not hearsay and was admissible. The court expressly allowed such testimony not for the truth of the matter asserted, but, rather, the statements were admitted for the limited purpose of demonstrating the effect of such statements on August’s state of mind relative to his claim for pain and suffering. In addition, the statements by the unidentified hospital emergency staff member to August in the course of providing emergency treatment after a collision that had already resulted in one fatality were made under circumstances that did not permit reflection or rationalization. Thus, such statements could also have been admitted under the excited utterance exception to the prohibition against hearsay evidence.

Defendants next assert that the circuit court abused its discretion in allowing irrelevant testimony by August’s son-in-law. He described household projects with which August had helped prior to the collision, but which were of a type August could not perform after the collision. The court allowed such testimony as evidence of August’s individual personal injury claim comparing what he could do before the collision with what he could do after. The restriction of August’s abilities as a result of his injuries was relevant evidence of damages on his individual personal injury claim. (Dillon v. U.S. Steel Corp. (1987), 159 Ill. App. 3d 186, 202; Reynolds v. Alton & Southern Ry. Co. (1983), 115 Ill. App. 3d 88, 96.) Thus, there was no abuse of discretion in allowing such evidence.

Finally, defendants assert that the circuit court abused its discretion in overruling defendants’ objection to plaintiffs’ rebuttal argument, which asserted that the value of the pain and suffering of older individuals such as plaintiffs was no less than that of younger individuals. A defendant may not complain of prejudice created by argument in response to his own. (In re Salmonella Litigation (1990), 198 Ill. App. 3d 809, 821; Crutchfield v. Meyer (1953), 414 Ill. 210, 214.) In defendants’ closing argument, they urged the jury to remember that August was not a wage earner in the flush of his career and that Antoinette was no longer the mother of small children needing her care. Defendants reminded the jury to consider the actuary tables estimating the life expectancy of both August and Antoinette as “older” individuals. Thus, defendants invited such rebuttal in emphasizing during their own closing argument the ages of August and Antoinette as a factor to be considered in determining damages.

The order of the trial court granting summary judgment to plaintiffs and against defendants on the issue of liability is reversed, and the cause is remanded.

Reversed and remanded.

BOWMAN and DOYLE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
      In re MARRIAGE OF CONNIE J. ANDERSEN, n/k/a Connie J. Buchs, Petitioner-Appellant, and RICHARD J. ANDERSEN, Respondent-Appellee.
    Second District
    No. 2—92—0010
    Opinion filed October 20, 1992.

      Norman E. Lindstedt and Roberta L. Holzwarth, both of Holmstrom & Kennedy, of Rockford, for appellant.
    James D. Zeglis, of Reno, Zahm, Folgate, Lindberg & Powell, of Rockford, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Petitioner, Connie Andersen, n/k/a Connie Buchs, appeals from the judgment of the circuit court, in a bench trial, which changed the custody of petitioner’s minor child to her former husband, Richard, the respondent. Petitioner’s sole appellate contention is whether the decision to change custody was against the manifest weight of the evidence.

We will summarize briefly the relevant facts. The parties’ marriage was dissolved in May 1985. The court awarded custody of seven-year-old David to petitioner. In 1990, petitioner remarried, and respondent remarried in 1991. Respondent’s second wife had a nine-year-old son from a previous marriage. In August 1991, respondent filed a petition for a change of custody on the basis that David wished to live with respondent.

Respondent’s home was V-k miles from petitioner’s home. Respondent stated that he had worked outside of Illinois for a while, but he returned to be closer to David. In 1988, respondent “moved to Rockford for the expressed purpose of having [David] live with” him. According to respondent, he and petitioner agreed that when David turned 13, he would live with respondent. Respondent further testified that he sought custody of David because that is what respondent always wanted and because respondent believed it would be better for David to live with respondent during David’s teenage years. Respondent admitted that David was doing well in school and was well-adjusted socially. If custody were changed to respondent, David would continue at the same school. Respondent admitted that he had no complaints about the environment petitioner provided for David.

Petitioner could not recall a conversation with respondent about changing custody of David, but she admitted that when David was 10 or 11, he expressed a desire to live with respondent.

David, then 14, stated that he wanted a chance to live with his father because David was “at the age that [he] should share *** moments” with his father, which he missed. David explained that he “sharefd] a lot of stuff” with his stepfather that he would prefer to share with his father. According to David, he and his parents first discussed his living with respondent when David was seven or eight years old. Petitioner told David he could live with respondent when David was 11 or 12. When asked what he would do if the court denied the petition, David responded that he would continue living with his mother until he was 16, at which point, if petitioner would not agree to a change of custody, he would return to court on his own. David stated that he had a good relationship with both stepparents.

The trial court found that custody would be appropriate with either parent. The court placed great weight on David’s preference because the court found him to be very mature and his reasons were well thought out and sound. The court noted that David expected custody to be changed eventually, based on the agreement between the parties and David. The court concluded that it would be in David’s best interests for custody to be changed to respondent. Petitioner timely appealed.

Petitioner contends that the trial court erred in modifying the custody judgment. A custody determination is a matter of the trial court’s discretion. (In re Custody of Sussenbach (1985), 108 Ill. 2d 489, 498.) The controlling statutory section provides in relevant part:

“(b) The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian *** and that the modification is necessary to serve the best interest of the child.” (Ill. Rev. Stat. 1991, ch. 40, par. 610(b).)

The statute raises a presumption in favor of the present custodian. (In re Marriage of Valter (1989), 191 Ill. App. 3d 584, 590.) If the trial court finds that the presumption is overcome, its determination is afforded great deference, since the trial court had the opportunity to observe the witnesses’ demeanor and to assess their credibility. (Sussenbach, 108 Ill. 2d at 499.) Thus, the reviewing court will disturb the trial court’s decision only if it was against the manifest weight of the evidence. 108 Ill. 2d at 499.

Petitioner asserts that the trial court’s judgment was against the manifest weight of the evidence because there was no change of circumstance to support the trial court’s decision. Respondent argues that he satisfied this requirement by showing that he and petitioner had both remarried since the dissolution judgment. While these events do constitute a “change of circumstance” in the generic sense, they are insufficient under these facts to support the modification of custody.

First, the circumstances of the noncustodial parent are irrelevant until the court has determined that the circumstances of the custodial parent or of the child have changed. (See In re Marriage of Gibbons (1987), 158 Ill. App. 3d 998, 1003.) Second, and more importantly, “[cjustody cannot be modified unless there is a material change in the circumstances of the child related to the child’s best interests and unless the evidence establishes either that the parent to whom custody was originally awarded is unfit or that the change in conditions is directly related to the child’s needs.” (In re Marriage of Eldert (1987), 158 Ill. App. 3d 798, 805; see also In re Marriage of Fuesting (1992), 228 Ill. App. 3d 339, 344; Ill. Ann. Stat., ch. 40, par. 610, Historical & Practice Notes, at 93 (Smith-Hurd 1980).) Here, petitioner’s remarriage did not have a negative effect on David’s needs or best interest.

However, the trial court found that the change of circumstances which directly related to David’s needs and best interest were that he had matured and that there was an understanding between the parties, and an expectation by David, that he would live with respondent when David reached adolescence.

Petitioner cites Garner v. Garner (1977), 46 Ill. App. 3d 56, and Stickler v. Stickler (1965), 57 Ill. App. 2d 286, for the proposition that the child’s desire for a change of custody is insufficient to establish a change of circumstance. Those cases do not support that proposition. In Garner, the appellate court found that because the interview of the child was conducted by the trial judge, in camera, without notice to the parties and the substance of the interview was not a part of the record, there was no evidence to support the trial court’s findings. (Garner, 46 Ill. App. 3d at 60.) In Stickler, as part of the settlement agreement, the children were allowed to choose with whom they would live. The children chose to live with their father, but one of the children subsequently changed her mind, and the mother sought custody. In reversing the trial court’s modification of custody, the appellate court stated:

“We have only the court’s finding that [the child] has changed her preference as to custodian. No testimony was taken, and there was no finding that the change was necessary for the child’s welfare. On the other hand, the court did find that [the child] has great love and affection for both her parents and would comply with whatever order the court enters. *** [T]he court also found that both parents were fit and proper persons to have custody of their child.
Under all these circumstances it is our conclusion that the mere change in a child’s preference as to the parent with whom she would like to live is not a sufficient change in circumstances to warrant transfer of the child’s custody.” (Stickler, 57 Ill. App. 2d at 291.)

Neither case held that the preference of the child can never be sufficient to constitute a change of circumstances. Moreover, the facts of both Garner and Stickler make them distinguishable from the present situation. Here, by contrast, the trial court heard testimony from the parties and David, the interview was on the record and the parties’ attorneys were present, and the court found that a change of custody was in David’s best interest.

The trial court should give considerable weight to a mature child’s custodial preference when it is based on sound reasoning. (Valter, 191 Ill. App. 3d at 590.) The trial court’s finding that a change of custody is in the child’s best interest may be based on the child’s preference where the child’s reasons are related to his best interest. (See In re Marriage of Edsey (1990), 199 Ill. App. 3d 39, 55.) The trial court found that David had sound reasons for his preference and his decision was mature. David stated that he wanted to live with his father so he could bond with him before growing up, and David indicated that he would feel more comfortable discussing adolescent problems with his father than with his stepfather. In addition, David was 14 years old at the time of the hearing, and he stated that if the petition were denied, he would return to court when he was 16 years old to file a petition on his own behalf. See Ill. Rev. Stat. 1991, ch. 40, pars. 2202, 2203 — 1.

However, even if we agreed with petitioner, the trial court based its finding of changed circumstances on different grounds, that David had matured, which was the triggering event for the change of custody to which the parties agreed. We disagree with petitioner’s argument that the agreement between the parties is insignificant. Despite petitioner’s testimony that she failed to recall an agreement, the trial court found that the parties “contemplated” that custody would be changed when David reached adolescence. Although the “promise” was not binding on the court, it was a relevant factor in the trial court’s determination.

Petitioner asserts that the maturation of the child can never be sufficient to constitute a change in circumstances, although she fails to cite any authority for this proposition. However, a custodial arrangement that may be in the best interest of a seven-year-old child may not be in the best interest of a 14-year-old boy. We decline to create a new rule which would ignore that reality and which would be contrary to the spirit of the statute. Thus, there was sufficient evidence to support the trial court’s finding of a change of circumstances related to David’s needs and best interest.

In the final analysis, the child custody provisions are designed to serve one end: the best interest of the child. (In re Estate of Whittington (1985), 107 Ill. 2d 169, 177; In re Marriage of Staszak (1991), 223 Ill. App. 3d 335, 341.) Section 602 of the Illinois Marriage and Dissolution of Marriage Act (Act) sets forth seven factors the court should consider to make that determination. Ill. Rev. Stat. 1991, ch. 40, par. 602(a).

On the first factor, the wishes of the parents, the evidence was evenly divided. We have already discussed the evidence relating to the second factor, the child’s wishes. For the third factor, the evidence showed that David had a good relationship with all the people involved. The fourth factor, the child’s adjustment to his home, school and community, is of little weight as there will be no significant change. The fifth factor also is of no weight here, as everyone involved is mentally and physically healthy. The sixth factor, the threat of violence, does not apply here. Regarding the last factor, the willingness of each parent to encourage a close relationship between the child and the other parent, the evidence does not show that respondent would interfere with David’s relationship with petitioner.

Since all the evidence for each factor is divided equally, the only remaining factor for the court to consider was David’s wish to live with respondent. As we discussed above, the trial court found that David’s reasons were sound and related to his needs and welfare. Evidently, the trial court believed that it would best serve David through the difficult journey from boyhood to manhood for him to have the guidance of, and day-to-day contact with, his father. We conclude that the evidence supports the trial court’s determination that David’s best interest will be served by changing his custody to respondent.

Furthermore, we note that the purpose of section 610(b) of the Act, to promote stability in the child’s environment and relationships, will not be impaired by the trial court’s decision. (Valter, 191 Ill. App. 3d at 590.) David will attend the same school and have the same friends, and he will be residing only V-h miles from his former abode.

We conclude that the trial court’s finding that a change of circumstances occurred was not against the manifest weight of the evidence, and the court’s determination that it would be in David’s best interest to live with respondent was not an abuse of discretion. (See In re Custody of Sussenbach (1985), 108 Ill. 2d 489, 499.) Therefore, we affirm the judgment of the circuit court of Winnebago County.

Affirmed.

WOODWARD and McLAREN, JJ., concur.


text:
    GENUINE PARTS COMPANY, Plaintiff-Appellant, v. DU PAGE COUNTY et al., Defendants-Appellees.
    Second District
    No. 2—91—1446
    Opinion filed October 20, 1992.

      Robert Handley, of Moroni & Handley, of Carol Stream, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner and Anna B. Harkins, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Genuine Parts Company, appeals the order of the circuit court granting summary judgment in favor of defendants, Du Page County and Karl D. Fry. Plaintiff contends that the court erred in concluding (1) that section 5 — 918(b) of the Road Improvement Impact Fee Law (Act) (Ill. Rev. Stat. 1991, ch. 121, par. 5 — 918(b)) does not exempt plaintiff from the payment of transportation impact fees in connection with the development of its warehouse and (2) that the county ordinance authorizing the imposition of impact fees for plaintiff’s development had not been repealed by enactment of a subsequent inconsistent ordinance.

Plaintiff is a Georgia corporation doing business as NAPA Auto Parts. In 1989, plaintiff purchased a parcel of property in Naperville in order to erect a new building to house its midwest distribution center. Before beginning construction, plaintiff obtained all necessary permits and paid a City of Naperville road impact fee. Naperville issued a building permit and, after construction was completed, issued a certificate of occupancy.

Approximately three months later, plaintiff received a “Transportation Road Impact Fee Assessment Notification” dated August 16, 1990, from Du Page County. This document demanded that plaintiff pay a county transportation impact fee of $13,933.36. Plaintiff refused to pay and subsequently filed a three-count complaint in the circuit court of Du Page County. Count I sought an injunction to prohibit the collection of the fee. Count II sought a declaration that section 5— 918(b) of the Road Improvement Impact Fee Law (Ill. Rev. Stat. 1991, ch. 121, par. 5 — 918(b)) exempted plaintiff from payment of the fee. Count III sought a declaration that the county’s impact fee ordinance had been repealed by the enactment of a later, inconsistent ordinance.

Both parties filed motions for summary judgment. On December 4, 1991, the court denied plaintiff’s motion and granted defendants’ motion regarding counts II and III of the complaint. Plaintiff voluntarily dismissed count I and then filed a timely notice of appeal.

Plaintiff’s first contention on appeal is that the court erred in denying his motion for summary judgment on the ground that section 5 — 918(b) did not exempt it from the payment of the county transportation impact fee. Section 5 — 918 is part of the Road Improvement Impact Fee Law, an enabling act to permit units of local government to enact ordinances providing for the payment of transportation impact fees as a prerequisite to obtaining approval of a proposed development. Section 5 — 918 provides in relevant part as follows:

“(b) Exemption of Developments Receiving Site Specific Development Approval. No development which has received site specific development approval from a unit of local government within 18 months before the first date of publication by the unit of local government of a notice of public hearing to consider land use assumptions relating to the development of a comprehensive road improvement plan and imposition of impact fees and which has filed for building permits or certificates of occupancy within 18 months of the date of approval of the site specific development plan shall be required to pay impact fees for permits or certificates of occupancy issued within that 18 month period.
* * *
(c) Exception to the Exemption of Developments Receiving Site Specific Development Approval. Nothing in this Section shall require the refund of impact fees previously collected by units of local government in accordance "with their ordinances or resolutions, if such ordinances or resolutions were adopted prior to the effective date of this Act and provided that such impact fees are encumbered as provided by Section 5 — 916.” Ill. Rev. Stat. 1991, ch. 121, pars. 5 — 918(b), (c).

In a stipulation of facts filed in the trial court, the parties agreed that the timing provisions of section 5 — 918(b) are applicable. Plaintiff thus argues that the plain language of that section exempts its development from the payment of impact fees. The county, however, contends that the exception to the exemption contained in section 5— 918(c) is applicable.

The county’s argument goes as follows. The Road Improvement Impact Fee Law became effective July 26, 1989. (Pub. Act 86 — 97, eff. July 26, 1989.) Plaintiff received its building permit prior to that date. Plaintiff became liable for the fee at or prior to the time it obtained its building permit. Thus, the fee should be considered to have been collected as of that time, and, pursuant to section 5 — 918(c), the county is not required to “refund” the fee which was “previously collected.”

The county maintains that the statutory section is ambiguous and that resort to extrinsic evidence reveals that the purpose of the Act was to ensure that existing county ordinances remained in force during the transition period to the new enabling act. Alternatively, the county contends that even if the language of the Act is unambiguous, ascribing to the words of the Act their plain and ordinary meanings would produce an absurd result. The county points out that, had plaintiff paid the fee at the time it received the building permit, the county would not have been required to refund the money. The county posits that plaintiff should not receive a benefit because it failed to pay the fee when it allegedly was due.

The fundamental principle of statutory construction is to ascertain and give effect to the intention of the legislature. (Hernon v. E.W. Corrigan Construction Co. (1992), 149 Ill. 2d 190, 194; Thomas v. Greer (1991), 143 Ill. 2d 271, 278.) This intent is determined initially by considering the language of the statute itself. (DeClerck v. Simpson (1991), 143 Ill. 2d 489, 492; Thomas, 143 Ill. 2d at 278.) In construing a statute, the words are to be given their plain and ordinary meanings. Opyt’s Amoco, Inc. v. Village of South Holland (1992), 149 Ill. 2d 265, 277; DeClerck, 143 Ill. 2d at 492.

In the present case, the parties agree that the exemption created by section 5 — 918(b) is potentially applicable. The county, however, argues that the exception to the exemption established in section 5— 918(c) is also applicable. That paragraph states that nothing in the Act shall require “the refund of impact fees previously collected by units of local government.” (III. Rev. Stat. 1989, ch. 121, par. 5— 918(c).) We agree with plaintiff that these words must, be given their plain and ordinary meanings.

“Refund” is defined as “[t]o repay or restore; to return money in restitution or repayment.” (Black’s Law Dictionary 1281 (6th ed. 1990).) Similarly, “collect” is defined as “to claim and receive in payment or fair recompense” and “to present as due and receive payment for.” (Webster’s Third New International Dictionary 444 (1986).) The conclusion is inescapable that the legislature intended the exception to apply only to the actual refunding of fees which had been previously collected. Nothing in the statute permits the local government to continue to collect fees which had not previously been paid.

Since the language of the statute is clear and unambiguous, we have no need to consider the legislative debates and other extrinsic sources to which the parties refer. Moreover, we reject the county’s assertion that the literal reading of the statute leads to an absurd result by permitting one who has willfully withheld payment of the fee to avoid payment altogether while not requiring a refund to one who has paid in a timely manner. Initially, the record does not support the county’s conclusion that plaintiff willfully refused to pay. Indeed, the parties stipulated that plaintiff was unaware of the county impact fee ordinance prior to receiving the notice of assessment from the county. In addition, we do not believe the distinction between fees previously collected and those which are “due” but unpaid is arbitrary. The legislature obviously intended to exempt all developments which met the criteria of section 5 — 918(b). It could have concluded that a narrow exception was necessary to prevent the disruption of municipal treasuries which would be caused by having to refund fees which had already been collected and encumbered as required by the enabling Act. See Ill. Rev. Stat. 1991, ch. 121, pars. 5 — 916, 5 — 918(c).

We also reject the county’s contention that plaintiff became liable for payment of the fee the moment it received its building permit despite its lack of knowledge of the ordinance and the absence of any attempt to collect the fee prior to the issuance of the permit. In this regard, the ordinance provides that “fair share transportation impact fees for non-residential development imposed pursuant to this Ordinance shall be assessed and collected in full prior to the issuance of a building permit.” (Du Page County, Ill., Ordinance ODT — 021—89, §6(2) (June 29, 1989).) As noted previously, “collect” refers to the actions of the party expecting a payment to obtain it. Nothing in the ordinance provides that a developer has an independent obligation to determine the amount of the fee due and remit that amount in the absence of a request by the county or municipality.

Based on the plain meaning of the statute, plaintiff was exempt from the payment of the impact fee. Thus, the circuit court’s order granting summary judgment for the county must be reversed. Because of our disposition of this issue, we need not reach plaintiff’s alternative argument.

For the foregoing reasons, the judgment of the circuit court of Du Page County is reversed, and the cause is remanded with directions to enter judgment for plaintiff.

Reversed and remanded with directions.

WOODWARD and McLAREN, JJ., concur.


author: JUSTICE BOWMAN

text:
    THE FIRST NATIONAL BANK OF MARENGO, Plaintiff-Appellee, v. LARRY K. LOFFELMACHER et al., Defendants-Appellants.
    Second District
    No. 2—91—0959
    Opinion filed October 23, 1992.

      Larry K. Loffelmacher and Mary Jo Loffelmacher, both of Rockford, appellants pro se.

    Jay K. Filler, Jr., of Franks & Filler, of Marengo, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Pro se defendants, Larry K. Loffelmacher and Mary Jo Loffelmacher, appeal from an order of the circuit court of McHenry County granting summary judgment in favor of plaintiff, First National Bank of Marengo, in a revival of judgment action initiated by plaintiff. We affirm.

Before discussing the merits of this appeal, we find it necessary to comment on several matters of appellate procedure. Supreme Court Rule 341(e)(1) (134 Ill. 2d R. 341(e)(1)) states that the “Points and Authorities” of an appellant’s brief “shall consist of the headings of the points and subpoints as in the Argument, with the citation under each heading of the authorities relied upon or distinguished, and a reference to the page of the brief on which each heading and each authority appear.” Defendants’ points and authorities section contains no headings or page references, improper and insufficient citation of authority, and improper argument. Defendants’ statement of the issues (134 Ill. 2d R. 341(e)(3)) simply refers to their points and authorities section. Defendants’ statement of jurisdiction (134 Ill. 2d R. 341(e)(4)) contains improper argument.

Rule 341(e)(6) requires an appellant’s statement of facts to “contain the facts necessary to an understanding of the case, stated accurately and fairly, without argument or comment, and with appropriate reference to the pages of the record on appeal.” (134 Ill. 2d R. 341(e)(6).) Here again, defendants’ statement of facts fails to provide adequate citation to the record and contains improper argument and comment. According to Rule 341(e)(7), the argument section of the brief “shall contain contentions of the appellant and the reasons therefor, with the citation of the authorities and the pages of the record relied on.” (134 Ill. 2d R. 341(e)(7).) Defendants’ brief also fails in this regard, as they have failed to provide either reasoned argument or adequate citation to relevant authority.

Defendants have clearly failed to comply with the above-stated civil appeals rules. These rules are not merely suggestions (see People v. Wilk (1988), 124 Ill. 2d 93, 103; see also Roberson v. Liu (1990), 198 Ill. App. 3d 332, 335-36), and we would be within our discretion under Rule 375(a) (134 Ill. 2d R. 375(a)) to strike defendants’ brief and dismiss the appeal. However, because the record in this case is not long and the issues are relatively simple, we decline to penalize defendants so severely for these lapses. (See Falk v. Martel (1991), 210 Ill. App. 3d 557, 559.) Rather, we will proceed to consider the merits of this case.

On April 2, 1981, plaintiff filed the original complaint in this action to obtain the balance due on a loan and security agreement pursuant to which plaintiff loaned defendants $65,025.08. The complaint also prayed for the payment of reasonable attorney fees and costs. The agreement provided that, upon default of the note, defendants agreed to pay all costs and expenses of collection including reasonable attorney fees and court costs.

Following a bench trial conducted November 3, 1982, the circuit court entered judgment in favor of plaintiff in the amount of $59,089.39 plus $975 in attorney fees. On January 13, 1983, the court awarded plaintiff a lien upon certain of defendants’ assets to satisfy the judgment. These assets were sold at a sheriff’s sale in McHenry County on April 16, 1985. By order dated May 21, 1985, the circuit court confirmed the sale, finding that it was fairly made, that it resulted in a deficiency amounting to $69,223.59 with interest from the date of sale, and that plaintiff was entitled to execution thereon.

On May 24, 1990, plaintiff filed a complaint to revive the judgment of November 3, 1982, alleging that it received no payments from defendants on the debt after October 23, 1986. In count I of the complaint, plaintiff prayed for revival of the judgment in the amount of $37,435.97 plus interest at the rate of $6.79 per day after December 31, 1989. In count II, plaintiff sought attorney fees in the amount of $1,219 plus costs as provided for in the loan agreement.

Defendants filed an “Answer and Petition to Dismiss,” asserting that the judgment could not be enforced more than seven years after the date of its entry according to their understanding of section 12— 108 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 12 — 108). Plaintiff responded with a reference to section 13 — 218 of the Code which provides that a judgment may be revived within 20 years of the date of the judgment. Ill. Rev. Stat. 1989, ch. 110, par. 13 — 218.

Plaintiff filed its motion for summary judgment on August 6, 1990, based on section 13 — 218' of the Code. The motion was supported by the affidavit of the president of the bank regarding the amounts due, including attorney fees of $1,219. On August 16, 1990, defendants responded and again questioned the timeliness of plaintiff’s petition to revive the judgment. Defendants also requested a continuance to prepare a counterclaim based on the allegation that a fraud had been perpetrated against them. On that same date, however, plaintiff’s motion for summary judgment was granted, and the judgment was revived with a balance due of $40,203.09. The court reserved its ruling on the issue of attorney fees.

Defendants then appealed from the entry of summary judgment on the same grounds as those presented in the trial court. Since the trial court’s order granting summary judgment did not resolve the issue of attorney fees, however, this court on May 3, 1991, dismissed the appeal for lack of jurisdiction. (First National Bank v. Loffelmacher (2d Dist. 1991), No. 2 — 90—1001 (unpublished order under Supreme Court Rule 23).) The trial court thereafter resolved the issue of attorney fees in plaintiff’s favor on July 25, 1991, and defendants filed their notice of appeal on August 23, 1991.

We also wish to point out that this court, on January 14, 1992, granted plaintiff’s motion to strike certain portions of defendants’ brief which were neither made part of the record on appeal nor supported by affidavit. We subsequently ordered plaintiff’s motion to strike portions of defendants’ reply brief and defendants’ objections thereto taken with the case. Since the subject portions of defendants’ reply brief are also not part of the record on appeal and are not supported by affidavit, they too are hereby ordered stricken.

As stated, it is defendants’ contention that the trial court erred in granting plaintiff’s motion for summary judgment in the revival action. Specifically, defendants argue that summary judgment was improperly granted because plaintiff failed to revive the 1982 judgment within seven years from the time it was rendered, and because of the existence of allegedly fraudulent circumstances surrounding the 1985 sheriff’s sale. We find defendants’ arguments to be without merit.

Several statutory provisions are relevant to this dispute. Section 2 — 1601 of the Code of Civil Procedure (Code) provides:

“Scire facias abolished. Any relief which heretofore might have been obtained by scire facias may be had by employing a petition filed in the case in which the original judgment was entered, and notice shall be given in accordance with rules.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1601.)

Section 12 — 108 of the Code, relied upon by defendants, states, in pertinent part:

“Limitation on enforcement, (a) Except as herein provided, no judgment shall be enforced after the expiration of 7 years from the time the same is rendered, except upon the revival of the same by a proceeding provided by Section 2 — 1601 of this Act ***.” (Ill. Rev. Stat. 1989, ch. 110, par. 12-108.)

Finally, section 13 — 218 of the Code, relied upon by plaintiff, provides, in part:

“Revival of judgment. Judgments in a circuit court may be revived as provided by Section 2 — 1601 of this Act, within 20 years next after the date of such judgment and not after ***.” Ill. Rev. Stat. 1989, ch. 110, par. 13 — 218.

Defendants have not addressed the applicability of section 13 — 218 of the Code, maintaining instead simply that section 12 — 108 requires revival actions to be brought within seven years from the time the original judgment is rendered. In support of their position, defendants cite Farmers State Bank v. Hansen (1990), 196 Ill. App. 3d 295, and People v. Estate of Savich (1988), 165 Ill. App. 3d 575. In Hansen, however, the revival action was clearly initiated within seven years of the original judgment. (Hansen, 196 Ill. App. 3d at 296-97.) In Estate of Savich, the court held that there was no “judgment” as such to be revived, although the trial court had stated that judgment had not been collected on or revived within the seven-year limitation period for the enforcement of judgments. (Estate of Savich, 165 Ill. App. 3d at 576-77.) Moreover, neither of plaintiff’s cited cases addressed the applicability of section 13 — 218 of the Code. As such, neither case is dispositive of the issue before us.

In Smith v. Carlson (1955), 6 Ill. App. 2d 271, the court stated the following with regard to statutes limiting actions on judgments:

“A judgment when rendered becomes a lien on real estate. If execution is not issued within one year, the judgment is said to ‘lose its vigor’ and ceases to be a lien. However, execution may be had at any time within seven years and then the judgment again becomes a lien from the time execution is delivered to the sheriff. (Ill. Rev. Stat. 1953, ch. 77, sec. 1, par. 1 [repealed; see now Ill. Rev. Stat. 1989, ch. 110, pars. 12 — 101, 12 — 108].) After seven years the judgment becomes ‘dormant’ and no execution may issue until and unless the judgment is revived by scire facias. (Ill. Rev. Stat. 1953, ch. 77, sec. 6, par. 6 [repealed; see now Ill. Rev. Stat. 1989, ch. 110, pars. 12 — 101, 12 — 108].) A judgment may be revived by scire facias or a civil action may be brought thereon within twenty years after the date of judgment. (Ill. Rev. Stat. 1953, ch. 83, sec. 24b [repealed; see now Ill. Rev. Stat. 1989, ch. 110, par. 13 — 218].)” (Smith v. Carlson (1955) , 6 Ill. App. 2d 271, 272-73, rev’d on other grounds (1956) , 8 Ill. 2d 74.)

The court went on, then, to observe that “there are three types of limitations on judgments — first, a limitation on their vigor as a lien; second, a limitation on the period in which execution may issue; and, third, a twenty-year limitation which definitely terminates the life of a judgment.” Smith, 6 Ill. App. 2d at 273.

Based on the above, and based further on our own reading of the relevant statutory provisions involved, we believe that defendants’ interpretation of section 12 — 108, that revival must occur within seven years of the original judgment, would render both the stated exception to section 12 — 108 and all of section 13 — 218 meaningless. Section 12 — 108 addresses limitations on enforcement of judgments and states that “no judgment shall be enforced after the expiration of 7 years from the time the same is rendered, except upon the revival of the same.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110, par. 12 — 108.) Section 13 — 218, on the other hand, specifically addresses the revival of such judgments and provides for a 20-year limitation period. Since under section 12 — 108 it is clearly permissible to execute or enforce a judgment within seven years from the time it was originally rendered, it would make no sense to say, in the same breath, that the exception, i.e., revival, must also take place within the same seven-year period. If actual enforcement may occur up until the expiration of the seven-year period, there is no concomitant need for revival during that period.

With these considerations in mind, we conclude that a party may not enforce a judgment after the expiration of seven years from the time that judgment was rendered unless the judgment is subsequently revived. (Ill. Rev. Stat. 1989, ch. 110, par. 12 — 108.) Thereafter, the judgment may be revived so long as the revival action is initiated within 20 years from the date judgment was originally rendered. (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 218.) The original judgment in this case was rendered on November 3, 1982. Plaintiff filed its complaint to revive the judgment on May 24, 1990, and the trial court entered its order reviving the judgment on August 16, 1990. Thus, pursuant to section 13 — 218 of the Code, the judgment was revived within 20 years and was valid.

As for defendants’ vague and unsubstantiated argument that the circumstances surrounding the 1985 sheriff’s sale suggest that a fraud was committed against them, plaintiff correctly notes that defendants first raised this issue some five years after the entry of the order confirming the sale, obviously well past the 30-day time period for filing a notice of appeal set forth in Supreme Court Rule 303(a)(1) (134 Ill. 2d R. 303(a)(1)). Moreover, it has often been stated that the only defenses in a revival of judgment action are that the original judgment did not exist or that there has been a subsequent satisfaction or discharge thereof. Bank of Edwardsville v. Raffaelle (1942), 381 Ill. 486, 489; A.A. Store Fixture Co. v. Kouzoukas (1980), 87 Ill. App. 3d 631, 636; Coby v. Turner (1964), 48 Ill. App. 2d 37, 41.

Here, plaintiff correctly points out that defendants have admitted the existence of the original judgment. Furthermore, defendants have failed to affirmatively plead, and the record does not support, the alternative defense of satisfaction or discharge. In fact, the only basis for reversal posited by defendants, as stated in their request for a continuance to prepare a counterclaim based on alleged fraud, addresses and seeks to attack not the original judgment but the circumstances of the sheriff’s sale. There being no issue of fact on the face of the record, we therefore conclude that the trial court ruled correctly when it granted plaintiff’s motion for summary judgment and revived the judgment previously rendered.

For the reasons indicated above, the judgment of the circuit court of McHenry County is affirmed.

Affirmed.

DUNN and GEIGER, JJ., concur.