author: PRESIDING JUSTICE STOUDER

text:
    GERALD L. KIEST et al., Plaintiffs, v. JUNE ESMOND et al., Defendants and Third-Party Plaintiffs-Appellants (Chicago Title Insurance Company et al., Third-Party Defendants-Appellees; The Village of North Utica et al., Defendants).
    Third District
    No. 3—88—0207
    Opinion filed March 2, 1989.

      Armstrong, Surin & Engels, of Ottawa (Craig M. Armstrong, of counsel), for appellants.
    Diane M. Romaniuk, of Chicago, for appellees.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Appellants, June and Truman Esmond, appeal from the dismissal of count VII of their third-party complaint, which alleged a cause of action for slander of title against third-party defendants Chicago Title Insurance Company and Buchner and O’Toole Title Company. On appeal the Esmonds argue their amended third-party complaint alleges a cause of action sufficient to withstand a motion to dismiss.

The Esmonds were engaged in developing two subdivisions in La Salle County. The Esmonds constructed Oak Bluff Estates Subdivision Unit 2 (Unit 2), in which they intended to offer certain lots for sale.

On May 1, 1979, ordinance No. 79 — 4 was passed by the village board approving the preliminary plat of Oak Bluff Estates. In November 1980, formal action was taken by the village board approving for sale several lots in Unit 2, including lot 38. On February 3, 1981, ordinance No. 81 — 2 was passed by the village board approving the annexation of Unit 2, subject to the performance by Esmonds of the terms of a preannexation agreement.

On April 15, 1981, the Esmonds sold lot 38 to Gerald L. and Anne E. Kiest. The Esmonds purchased a commitment for title insurance from the third-party defendants, Chicago Title and Buchner and O’Toole Title Company, and delivered their executed warranty deed conveying fee simple title of the subject real estate to the Kiests. The commitment did not make reference to the adoption of ordinance No. 81-2.

On April 25, 1981, ordinance No. 81 — 8 was passed by the village board, superseding ordinance No. 81 — 2, waiving the rights of the village under a portion of the preannexation agreement to the extent necessary to carry out ordinance No. 81 — 8, and stating that the Esmonds shall not be barred from selling any improved lot or lots except as noted.

On June 7, 1983, the Kiests were refused a building permit by the village board. The Kiests then filed a claim under their commitment for title insurance. On February 6, 1984, James K. Weston, vice-president and regional counsel for Chicago Title, wrote to the Kiests’ attorney, stating that “Ordinance 81 — 8 is invalid and of no legal effect.” On February 8, 1984, the Kiests filed a claim against the title company based on the fact that the commitment for title insurance was issued without reference to the restrictions placed on the lots by ordinance No. 81 — 2 and the preannexation agreement. The Kiests sought damages, and although Chicago Title denied liability, they paid the Kiests $4,000 on a covenant not to sue. As a result of these events, Truman Esmond contends he heard from a number of persons that title to the lot was no good and that Chicago Title had admitted as much and made a settlement with the Kiests.

On June 22, 1984, the Kiests.filed a complaint against the Esmonds alleging that the failure of the Esmonds to comply with the terms of the preannexation agreement with the village was the cause of the village’s refusal to issue a building permit. The Esmonds then filed a third-party complaint for indemnity against several third-party defendants, including Chicago Title. The Esmonds amended their complaint by adding count VII, which alleged that the Weston letter had slandered the title of the lots still owned by the Esmonds. The underlying action between the Esmonds and the Kiests was dismissed by the trial court on February 19, 1988, by stipulation of the parties, the Esmond indemnity claim being dismissed along with the original action.

On May 28, 1987, the Esmonds further amended their complaint to allege that the Weston letter caused officials of the Village of North Utica to declare and publish erroneous information to potential buyers of the Esmonds’ property. Chicago Title filed a motion to dismiss for failure to allege facts sufficient to support a claim of slander of title. The trial court granted Chicago Title’s motion to dismiss and the Esmonds have appealed.

Before we are able to consider the Esmonds’ argument, it is necessary to address Chicago Title’s contention that the trial court properly dismissed the claim because of improper joinder. In support of this argument, Chicago Title cites section 2—406(b) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—406), which was designed to implement third-party practice in Illinois. Section 2—406(b) provides, in pertinent part, as follows:

“Within the time for filing his or her answer or thereafter by leave of court, a defendant may by third-party complaint bring in as a defendant a person not a party to the action who is or may be liable to him or her for all or part of the plaintiff’s claim against him or her.” Ill. Rev. Stat. 1985, ch. 110, par. 2 — 406.

This language has been interpreted as preventing a third-party plaintiff from joining independent claims against a third-party defendant. (Ketcham v. Consolidated Rail Corp. (1986), 146 Ill. App. 3d 196, 496 N.E.2d 1104.) In Ketcham the court stated that “[o]nly those claims which a third-party defendant is or may be liable to the original defendant for all or part of the plaintiff’s claims against him are proper under third-party proceedings.” (Ketcham v. Consolidated Rail Corp. (1986), 146 Ill. App. 3d 196, 201, 496 N.E.2d 1104, 1107.) Similarly, in Filipponio v. Bailitz (1978), 73 Ill. App. 3d 389, 392 N.E.2d 23, the court found that third-party practice cannot be used to maintain an entirely separate and independent claim against a third party, even if it arises out of the same general set of facts as the main claim.

In the present case Chicago Title’s and Buchner and O’Toole’s liability to the Esmonds for slander of title is not derivative of the outcome of the Esmonds’ liability to the Kiests. As indicated earlier, the underlying action between the Esmonds and the Kiests was dismissed by the trial court on February 19, 1988, by stipulation of the parties. In addition, in count VII of the Esmonds’ amended third-party complaint, the Esmonds are seeking recovery against Chicago Title and Buchner and O’Toole for their own damages.

We agree with the defendants’ argument that the claim for slander of title is a .separate, independent claim for the Esmonds’ own damages. This contention has not been refuted or addressed by the Esmonds. Consequently, because count VII is not a sufficient basis upon which to sustain a third-party action, the trial court properly dismissed the third-party complaint.

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

Affirmed.

WOMBACHER and SCOTT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WOMBACHER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN EMBRY, Defendant-Appellant.
    Third District
    No. 3—88—0127
    Opinion filed February 28, 1989.
    Modified opinion filed April 13, 1989.

      Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Masters, State’s Attorney, of Joliet (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOMBACHER

delivered the opinion of the court:

The defendant, Steven Embry, pled guilty to aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12—14) and was sentenced to 24 years in prison. He appeals, arguing that the cause must be remanded for a new sentencing hearing because the court relied on two erroneous aggravating factors in imposing his sentence. Specifically, he contends that the sentencing judge mistakenly believed that the defendant was eligible for an extended-term sentence and that the judge erroneously relied on unfounded speculation concerning the defendant’s prior conviction for burglary in the State of Washington.

The State argues that the defendant has waived any alleged errors in sentencing, because he failed to object and bring the alleged errors to the sentencing court’s attention. Having reviewed the record, we choose to consider the issues as plain error under Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)).

A trial judge’s decisions with regard to sentencing must be accorded great deference and weight. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Where it can be determined from the record that the weight placed on the improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence, remandment is not required; but where the reviewing court is unable to determine the weight given to the improperly considered factor, the cause must be remanded. People v. Bourke (1983), 96 Ill. 2d 327, 449 N.E.2d 1338.

Aggravated criminal sexual assault is a Class X felony (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(c)) punishable by a term of imprisonment of between 6 and 30 years (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(3)). If the sentencing court finds present any of the aggravating factors set forth in section 5—5—3.2(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2(b)), it may impose an extended-term sentence. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2.) One aggravating factor listed in section 5—5—3.2 is that the victim was 60 years of age or older. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2(b)(4)(ii).) However, an element of the offense charged cannot be considered as an aggravating factor in sentencing the defendant. People v. White (1986), 114 Ill. 2d 61, 499 N.E.2d 467.

In the instant case, the sentencing court stated that the defendant was eligible for an extended-term sentence because the victim was over the age of 60. We note, however, that the defendant was charged with aggravated criminal sexual assault because his victim was over the age of 60. (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(a)(5).) Accordingly, the sentencing court erred in considering in aggravation that the defendant was eligible for an extended-term sentence based on the victim’s age.

The sentencing court also erred in considering unfounded speculation concerning a previous crime committed by the defendant. The presentence investigation report contained a letter from Brian M. Forbes of the Washington State Department of Corrections. This letter accompanied the police reports involving the defendant’s previous burglary of the home of an elderly woman in Longview, Washington. Mr. Forbes believed, because of the similarities between the Longview incident and the present case, that the defendant in the Longview case had intentions which went beyond committing a standard burglary.

In setting forth its reasons for the 24-year sentence, the instant court stated:

“One of the offenses that is most recent in the State of Washington in August of ’86 could have potentially led to the same situation to which he pled guilty. A woman living alone in a residence at the age of 76 years. Fortunately she heard the noise and saw the Defendant and decided to get out of the residence and called the police.
Within a few minutes, the Defendant was apprehended and identified by the potential victim who perhaps, but for the fact she was alerted, she may have been the subject of a criminal sexual assault.”

In determining the appropriate sentence to impose, hearsay information relating to prior convictions may be considered. (People v. Dennis (1970), 47 Ill. 2d 120, 265 N.E.2d 385.) The sentencing court is not bound by rigid adherence to the rules of evidence; however, the court’s search for facts which tend to aggravate or mitigate the offense must be within reasonable bounds. People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9.

In the Longview case, when the elderly woman noticed the defendant trying to enter her home, she immediately left the residence and notified the police. The defendant was apprehended shortly thereafter. Nothing in the police reports showed that the defendant contemplated, threatened or attempted to sexually assault the elderly woman. Prior to the present case, the defendant had no history of committing violent crimes. Speculation as to what might have occurred in the Longview incident was clearly outside the reasonable bounds of consideration when it came to sentencing the defendant in the present case.

We cannot determine the weight given to either of these improperly considered factors. The cause must therefore be remanded for resentencing.

The judgment of the circuit court of Will County convicting the defendant of aggravated criminal sexual assault is affirmed. The defendant’s sentence of 24 years in prison is vacated and the cause remanded for a new sentencing hearing.

Affirmed in part; vacated in part and remanded.

STOUDER and BARRY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BOB R. WINEMILLER, Defendant-Appellee.
    Third District
    No. 3—88—0130
    Opinion filed February 28, 1989.

      Edward F. Masters, State’s Attorney, of Joliet (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Thomas A. Lilien, of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE WOMBACHER

delivered the opinion of the court:

The trial court granted defendant Bob R. Winemiller’s motion to suppress the evidence against him. The State appeals.

The record shows that in May of 1986, Will County sheriff’s deputy Thomas Tichy went to the defendant’s premises to buy a transmission. While there, he noticed that one of the cars did not have a vehicle identification number (VIN) plate. He subsequently reported this tó his supervisor. Acting on this information, two peace officers drove by the defendant’s premises and observed several vehicles in various stages of dismantlement. Sergeant Albert Pace of the Secretary of State’s police then ran the defendant’s name through a computer and found that no license had been issued for him to conduct an auto parts recycling business.

On May 21, 1986, seven police officers went to the defendant’s premises. They had no search warrant, instead relying on section 5— 403 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95, par. 5— 403) as authority for their search. Geraldine and John Rutherford greeted the officers, who introduced themselves and stated the nature of their visit. John told the officers that he worked with the defendant in the auto parts business. Geraldine stated that she lived in the house on the premises.

According to Sergeant Pace, both Rutherfords consented to the officers’ searching the premises. Pace further testified that the defendant arrived about 15 minutes later. After learning why the police were there, the defendant supplied some of the titles which the Rutherfords had been unable to locate for the police. The search revealed vehicles missing VIN plates, vehicle titles which had not been properly assigned, and a fabricated VIN plate. In addition to seizing 10 of the incomplete titles, the police photographed the cars and parts missing VIN plates, photographed the entire area, and took one of the defendant’s business cards.

Both of the Rutherfords testified that they had not consented to the search. John denied bringing the police any of the titles. Geraldine admitted bringing them some titles, but stated that she did so because she felt she had no choice. She noted that when she asked an officer whether he had a search warrant, the officer displayed his badge and stated: “This is, you know, this is all I need.”

The defendant testified that when he arrived two officers explained that they had to check everything and asked if they could look around. The defendant responded: “Looks to me like you’re already looking around.” He obtained the titles for the officers because he did not believe anything was wrong and because he believed that they could obtain a search warrant if necessary.

The defendant was subsequently charged with five counts of possessing a vehicle with a removed VIN plate, one count of failure to maintain records, and five counts of unlawful possession of a title without a complete assignment. Following a hearing, the trial court granted the defendant’s motion to suppress the evidence seized in the warrantless search of his premises.

On appeal, the State argues that the trial court erred in granting the defendant’s motion to suppress.

Salvage yards are regulated under chapter 5 of the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1987, ch. 95½, par. 1—100 et seq.). Section 5 — 403 of the Code (Ill. Rev. Stat. 1987, ch. 95½, par. 5—403) permits authorized representatives of the Secretary of State, including police officers, to conduct warrantless inspections of the records salvage yards are required to keep. In People v. Madison (1988), 121 Ill. 2d 195, 520 N.E.2d 374, the Illinois Supreme Court held that section 5—403(6) of the Code (Ill. Rev. Stat. 1987, ch. 95½, par. 5— 403(6)) required the police to obtain a search warrant before seizing any evidence discovered during the course of an inspection. The court noted that any information uncovered that could serve as the basis for criminal prosecution necessitated obtaining a warrant, because gathering evidence for criminal prosecutions is outside the narrow scope of authority given to the State to conduct administrative inspections. Madison, 121 Ill. 2d at 201, 520 N.E.2d at 377.

In the instant case, the State’s actions were more egregious than those in Madison. Here, the searching officers knew from information supplied by Deputy Tichy that the defendant was committing a crime by possessing a vehicle with a missing VIN plate. As the trial court noted, the subsequent administrative inspection was merely a police subterfuge for entering the defendant’s premises with the expectation that they would find evidence of illegal activities. It was not simply to inspect the defendant’s business records. One of the fundamental principles of administrative searches is that the government may not use an administrative inspection scheme as a pretext to search for evidence of criminal violations. (Madison, 121 Ill. 2d at 209, 520 N.E.2d at 381.) If the primary objective of a search is to gather evidence of criminal activity, a search warrant based on probable cause must be obtained. (Michigan v. Clifford (1984), 464 U.S. 287, 78 L. Ed. 2d 477, 104 S. Ct. 641.) Accordingly, the trial court properly granted the defendant’s motion to suppress the evidence.

The State argues that the defendant had no expectation of privacy in the missing VIN plates, so the police officers’ observations and photos of them were not protected by the fourth amendment. While the missing VIN plates may have been in public view, the police were not present as members of the general public. They were there in furtherance of an illegal search and seizure. (See People v. Madison (1988), 121 111. 2d 195, 520 N.E.2d 374.) The trial court therefore correctly included their observations and photos in its suppression order.

The State also argues that the officers’ good-faith reliance on our decision in People v. Potter (1986), 140 Ill. App. 3d 693, 489 N.E.2d 334, precludes application of the exclusionary rule to the instant search and seizure. We disagree. The good-faith exception has not been applied to a police officer’s interpretation of a court decision and we find no basis for now doing so. Further, we note that the State’s interpretation of Potter is suspect given the supreme court’s holding in Madison that Potter did not stand for the proposition that through the first 24 hours of an inspection the State has carte blanche to search and seize as it wishes. Madison, 121 Ill. 2d at 205, 520 N.E.2d at 379.

Lastly, the State argues that this cause should be remanded so the trial court can decide whether the police obtained valid consent for the search and whether the defendant was in custody so as to require Miranda warnings. The State notes that both issues were fully litigated but were not ruled upon by the trial court.

In granting the defendant’s motion to suppress, the trial court impliedly found that the police had not obtained proper consent to conduct the search. (See People v. Haskell (1968), 41 Ill. 2d 25, 241 N.E.2d 430, overruled on other grounds by People v. Nunn (1973), 55 Ill. 2d 344, 304 N.E.2d 81.) Further, the Miranda issue is moot, given the trial court’s suppression of the defendant’s statements as the fruit of the unlawful search and seizure. See People v. Bowen (1987), 164 Ill. App. 3d 164, 517 N.E.2d 608.

The judgment of the circuit court of Will County is affirmed.

Affirmed.

SCOTT and BARRY, JJ., concur.


text:
      In re APPLICATION OF THE COUNTY COLLECTOR FOR JUDGMENT AND ORDER OF SALE AGAINST LAND AND LOTS RETURNED DELINQUENT FOR NONPAYMENT OF GENERAL TAXES FOR THE YEAR 1984 AND PETITION FOR TAX DEED OF BEST INVESTMENTS (Chrysler First Financial Services Corporation, Petitioner-Appellee, v. Best Investments, Respondent-Appellant).
    Third District
    No. 3—88—0143
    Opinion filed December 22, 1988.
    Modified on denial of rehearing March 23, 1989.

      Daniel L. Koehl, of Joliet, for appellant.
    Grochocinski & Grochocinski, Ltd., of Palos Hills (Mark Grochocinski, of counsel), for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Best Investments appeals from the order of the circuit court of Will County granting Chrysler First Financial Services Corporation’s (Chrysler’s) section 2 — 1401 (Ill. Rev. Stat. 1985, ch. 110, par. 2— 1401) petition.

On appeal, Best Investments contends that the trial court erred in ordering its tax deed set aside without finding that it engaged in any fraudulent or deceptive acts in giving notice of the petition for tax deed to the parties entitled to notice. In addition, Best Investments contends the original owners’ filing of a bankruptcy petition did not extend the tax sale redemption period. Because of the view we take with regard to the first issue, it is unnecessary to discuss Best’s bankruptcy petition argument.

The record reveals the following. Robert and Beverly Garrington, the owners of two parcels of real estate located in Joliet, Illinois, granted Finance America Corporation, now known as Chrysler First Financial Services Corporation, a mortgage upon both parcels in November 1984. The mortgage was recorded in January 1985.

One of the Garrington parcels was sold to Best Investments for delinquent taxes by Will County on November 30, 1984. The Garringtons had until July 3, 1987, to redeem the taxes acquired by Best. The other parcel was forfeited to the State. This second Garrington parcel was redeemed by Chrysler after Chrysler had received notice of the tax delinquency.

Before the mortgagee changed from Finance America to Chrysler, Finance America commenced proceedings to foreclose its mortgage upon both parcels in June 1986. Finance America recorded a lis pen-dens notice with the Will County recorder on June 13, 1986. It obtained a judgment of foreclosure and sale on October 21, 1986, and was the successful bidder at the subsequent sheriff’s sale on December 23, 1986. The redemption period following this foreclosure sale was to expire June 24, 1987. The sheriff’s certificate of sale was recorded with the Will County recorder on December 31, 1986. Sometime after the sheriff’s sale, but prior to the issuance of the sheriff’s deed, Finance America became Chrysler First Financial Services.

Best Investments filed its petition for issuance of the tax deed on March 12, 1987. On July 10, 1987, Best filed its affidavits indicating that the Garringtons had been personally served by the sheriff but that Best was unable to locate Finance America Corporation, the mortgagee of the property. The contents of the affidavit regarding the efforts of Best will be discussed later in this decision.

On June 29, 1987, the Garringtons filed a petition in bankruptcy. On July 10, 1987, Chrysler obtained and recorded a sheriff’s deed to both Garrington parcels, including the one for which Best Investments was petitioning. The trial court entered an order directing the issuance of a tax deed to Best Investments on August 7,1987.

On September 28, 1987, Chrysler filed its petition with the court pursuant to section 2—1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—1401), requesting the trial court to vacate its tax deed order of August 7, 1987; such relief was granted on March 1,1988.

The Illinois Supreme Court has held that where a property owner petitions to vacate a judgment issuing a tax deed under section 2—1401 (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401), the owner must prove fraud. (In re Application of County Treasurer (1982), 92 Ill. 2d 400, 442 N.E.2d 216.) Fraud has been defined as being “a wrongful intent — an act calculated to deceive.” (Dahlke v. Hawthorne, Lane & Co. (1966), 36 Ill. 2d 241, 245, 222 N.E.2d 465, 467; In re Application of County Treasurer (1982), 92 Ill. 2d 400, 405, 442 N.E.2d 216, 218.) Examining the record of the entire proceeding, it is clear that Best Investments acted with the intention of deceiving Chrysler First Financial.

Best argues that the trial court erred in granting Chrysler’s section 2 — 1401 petition, contending that it has sufficiently complied with the required notice provisions. Under section 263 of the Revenue Act of 1939 (Ill. Rev. Stat. 1985, ch. 120, par. 744), the purchaser at a tax sale must give notice of the sale and of the date of expiration of the redemption period not less than three months or more than five months prior to the expiration of the redemption period. Section 263 requires that notice be served personally and, under certain circumstances, by certified mail, return receipt requested, through the clerk of the circuit court. Unknown owners and interested parties may be given notice by publication. 111. Rev. Stat. 1985, ch. 120, par. 744.

Examining the record it is apparent that Chrysler did not receive notice of the pending tax sale or the date of the expiration of the redemption period. Best argues that it diligently attempted to notify the mortgagee of the sale through the mail and via the telephone. According to the affidavit filed by Best, executed by its agent, Jesse McCormick, Best attempted to notify Finance America of the pending proceedings. McCormick states that Best’s search to notify Finance America included, among other efforts, a search of the local phone directories, telephone calls to persons listed therein bearing the same or similar names, inquiry of a number of persons residing in the area and persons bearing similar names, and the examining of documents or records listed in the office of the Will County recorder’s office.

Although Best argues that its actions are sufficient to satisfy the notice requirements pursuant to the statute, it can be determined that it was not diligent in its effort to notify Chrysler of the pending activities. The affidavit supporting Best’s claim of due diligence is nonspecific in its efforts to locate Chrysler other than perhaps looking at telephone directories. It does not appear Best made any effort to get in touch with Chrysler’s attorneys of record in the foreclosure proceeding. In addition, Best did not make any effort to ascertain Chrysler’s registered agent or his address through the Secretary of State’s office. Further, Best did not ascertain the name of the owner of the building in which the office was located and made no inquiry of other businesses which were located in the same building as Chrysler.

Although it is correct that mere failure to exercise diligence in notifying property owners in a tax sale situation is not tantamount to fraud, it is also correct that additional facts indicating an intent to deceive will be examined in determining whether a party has acted fraudulently. In re Application of County Treasurer (1982), 92 Ill. 2d 400, 442 N.E.2d 216.

The record in the present case contains a number of affidavits, submitted by Chrysler, which indicate that Best acted to conceal, from Chrysler, notice of the pending proceedings. The affidavits also show that Best Investments, through agent Jesse McCormick, failed to inform the court that he had contact with Chrysler prior to the tax sale hearing on August 7,1987.

Pat MacDonald, a real estate broker acting on behalf of Chrysler, placed a “for sale” sign on the “Carrington property” prior to July 10, 1987. Shortly after placing this sign upon the property, MacDonald received a telephone call from a man identifying himself as Jesse McCormick, of Best Investments. McCormick inquired about the terms and conditions of the sale of real estate and the circumstances under which it was being sold. MacDonald stated that she advised the caller of the circumstances of the sale and identified Chrysler as being the property owner. McCormick then advised MacDonald that he had acquired the property at a tax sale, that the redemption period had expired and that he was considering selling the property. McCormick also asked MacDonald not to advise or tell Chrysler of the pending proceeding because such information would only delay the proceedings. McCormick stated that she contacted an employee of Chrysler, Mark Rief, and informed him of the conversation.

Carleen Cignetto stated in an affidavit that she is an attorney whose firm is representing Chrysler in this matter. Cignetto, upon information related to her from Mark Rief, contacted Jesse McCormick on July 10, 1987. McCormick stated that he was amenable to allowing Chrysler to purchase his tax deed, but did not advise Cignetto of the fact that he was in the process of applying for a tax deed. Cignetto spoke with Mark Rief and was informed that Chrysler would be willing to pay McCormick $2,000 for his tax deed. After a number of unsuccessful attempts, Cignetto reached McCormick on August 5 and related the Chrysler offer to him. McCormick rejected the Chrysler offer, stated he would review his file and then call back Chrysler and make a counteroffer. The record reveals that McCormick did not call back and did not, at any time, advise Chrysler that a hearing on his application for a tax deed was scheduled on August 7,1987.

Subsequent investigations completed by Cignetto on September 21, 1987, revealed that the court entered an order authorizing the issuance of the tax deed on August 7, 1987, and that the deed issued September 8,1987.

Best Investments does not dispute the above-stated facts, nor does it dispute the fact that it failed to inform the court of its contact with Chrysler prior to the August 7 tax deed hearing. Rather, Best Investments argues that it was acting diligently in its attempts to contact Finance America and that it did not have a duty to inform the court of its contacts with Chrysler because they occurred after the period for redemption had expired. We disagree with Best’s contention. Best’s efforts to conceal the pending proceedings warrant the inference that it was not acting in good faith and constitute fraud. This concealment existed prior to the redemption period and continued after the period had expired.

The record indicates Best Investments neglected to avail itself of readily available sources of information which would have led to the location of Finance America. When such neglect is considered with the evidence of its deliberate intent to conceal the tax proceeding, we conclude its conduct was tantamount to fraud.

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

Affirmed.

HEIPLE and WOMBACHER, JJ., concur.


author: JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CHARLES W. HARDIN, Defendant-Appellee.
    Second District
    No. 2—88—0161
    Opinion filed March 3, 1989.

      Robert E Casey and Gary V. Johnson, State’s Attorneys, of Geneva (William L. Browers and Lawrence M. Bauer, both of State Appellate Prosecutor’s Office, of counsel), for the People.
    Fred M. Morelli, Jr., of Law Offices of Fred M. Morelli, Jr., of Aurora, and Vincent C. Argento, of Argento & Malcolm, of Elgin, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

The State appeals from a suppression- order of the circuit court of Kane County. (See 107 Ill. 2d R. 604(a)(1).) The issue on appeal is whether police officers’ failure to knock and announce before entering defendant’s home to execute a valid search warrant was justified by exigent circumstances.

On March 31, 1987, the Kane County sheriff’s department obtained a warrant to search the residence of defendant, Charles W. Hardin. The complaint requesting issuance of the search warrant states that a reliable, confidential source informed the police that defendant was selling cocaine from his residence at 134 Vermont Street, Aurora, Illinois. The complaint also states that in September 1986 another search warrant had been issued for the same residence and that 6.2 grams of cocaine had been seized in the search. During the execution of the September 1986 warrant, defendant stated to Detective Atchison of the sheriff’s department that the officers executing the warrant were fortunate that defendant did not get to his gun. The police seized a .38 caliber handgun which had been in close proximity to defendant when the police entered the residence.

The March 31, 1987, warrant was executed on April 1, 1987, and a quantity of cannabis was seized. Defendant was charged with possession of cannabis. Ill. Rev. Stat. 1985, ch. 56½, par. 704(c).

Defendant filed a motion to quash the search warrant and to suppress evidence. He alleged that the warrant was invalid for lack of probable cause and that the warrant was improperly executed in that the police failed to knock and announce before entering his residence. On January 22, 1988, there was a hearing on defendant’s motion. The trial court determined that there was probable cause and the warrant was valid. On the issue of execution, the State stipulated that the officers did not knock and announce their authority prior to executing the warrant. The State argued, however, that exigent circumstances existed which rendered the action excusable. Specifically, the State argued that defendant’s prior threat created in the officers a reasonable fear for their safety if they proceeded with the usual announcement. The trial court found that there were no exigent circumstances to justify the officers’ actions; therefore, the warrant was improperly executed. The court ordered the evidence seized pursuant to the search to be suppressed. The State appeals, contending that the officers’ reasonable apprehension of danger, based on defendant’s prior threat, created exigent circumstances which justified entry without prior announcement.

Generally, a trial court’s ruling on a motion to suppress will not be disturbed upon appeal unless it is manifestly erroneous. (People v. Garcia (1983), 97 Ill. 2d 58, 74.) When the facts are undisputed, however, as in the instant case, the question of whether the trial court’s ruling was correct is a legal one subject to de novo consideration by the reviewing court. People v. Clark (1986), 144 Ill. App. 3d 7, 11; People v. Sain (1984), 122 Ill. App. 3d 646, 649.

Absent exigent circumstances, police officers executing a search warrant are expected to knock and announce their authority and purpose before entering the premises to be searched. (People v. Trask (1988), 167 Ill. App. 3d 694, 703.) The purpose of the “knock and announce” rule is to notify the person inside of the presence of police and of the impending intrusion, give that person time to respond, avoid violence, and protect privacy as much as possible. (People v. Marinez (1987), 160 Ill. App. 3d 349, 352.) Although the failure of the police to announce their authority and purpose is not a per se violation of the fourth amendment, it may influence whether a subsequent entry of a premises to arrest or search is constitutionally reasonable. (People v. Wolgemuth (1977), 69 Ill. 2d 154, 166.) Where exigent circumstances exist, the failure of the police to knock and announce their authority and purpose in the execution of a search warrant for narcotics does not violate the fourth amendment right against unreasonable searches and seizures. People v. Ouellette (1979), 78 Ill. 2d 511, 516.

Exigent circumstances that may justify the failure to announce authority and purpose include uselessness of the announcement, ease with which the evidence may be destroyed, and danger to the policeman executing the warrant. Ouellette, 78 Ill. 2d at 518.

The State contends that exigent circumstances did exist here. The facts establishing the exigency appear on the face of the complaint for the search warrant. The same officers involved with this search had executed a similar warrant on the same residence some eight months before. At that time a .38 caliber handgun was recovered. Defendant told the officers that they were fortunate that he did not get to his gun. The State urges that, based on the circumstances of the earlier encounter, the officers had a reasonable belief that a weapon would be used upon them if they proceeded with an ordinary announcement, and this reasonable apprehension of danger created an exigent circumstance sufficient to excuse their failure to knock and announce.

Defendant cites the holding in People v. Marinez (1987), 160 Ill. App. 3d 349, in support of the trial court’s suppression order. In Marinez, the police officers knew the occupant of the house to possess firearms. (160 Ill. App. 3d at 350.) The court stated, however, that information indicating the presence of weapons does not alone create exigent circumstances. (160 Ill. App. 3d at 352.) The court found that the police had no further information which suggested that the occupant carried the weapon on his person, that he had ever used the gun, or that there was any danger to the police from the use of the weapon. (160 Ill. App. 3d at 353.) On this basis the court found that there was no reason to excuse the police from failing to knock and announce their presence and intent. 160 Ill. App. 3d at 353.

Defendant asserts that Marinez is similar to the instant case in that the officers here had no information tending to indicate that they were in danger from the use of a weapon. We disagree. Marinez is easily distinguishable from the instant case. In Marinez there was no evidence of potential danger to the police, whereas in this case defendant’s statement to the officers on a prior occasion clearly indicated that he would have used his gun on them if he could have reached it in time.

We consider the reasoning in the recent case of People v. Trask (1988), 167 Ill. App. 3d 694, to be particularly applicable to this case. In Trask, the trial court, after finding that the police officers had knocked and had waited a reasonable time before entering the residence to execute a search warrant, also found that an exigent circumstance had existed. (167 Ill. App. 3d at 700-01.) This finding was based on a police officer's testimony that he had arrested the defendant some SVz months earlier and the defendant had had a loaded semiautomatic pistol on his person. (167 Ill. App. 3d 699-700.) In affirming the trial court, we stated:

“Although [the officer] did not know whether defendant had any other guns, any apprehension that defendant might be armed and dangerous would appear reasonable in light of the previous encounter. The police should not have to be certain that they will be shot at if they wait very long before entering; they just have to have a reasonable apprehension of danger. The trial court’s finding of exigent circumstances was thus not erroneous.” (167 Ill. App. 3d at 705.)

We believe that the reasoning in Trask applies here. In this case, as in Trask, the officers had no information that defendant currently possessed a weapon; however, in light of their previous encounter with defendant, the officers’ apprehension that defendant might be armed and dangerous was reasonable.

Compliance with the “knock and announce” rule should be excused only where the officers reasonably believe that the weapon will be used against them if they proceed with the ordinary announcement. (Ouellette, 78 Ill. 2d at 520.) We consider that defendant’s prior possession of a weapon and his threatening statement to the police officers were sufficient to create a reasonable apprehension of danger and to justify the officers’ failure to knock and announce their presence and intent.

The judgment of the circuit court of Kane County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

UNVERZAGT, P.J., and REINHARD, J., concur.


author: JUSTICE McLAREN

text:
    JANE A. NOLAN, Plaintiff-Appellant, v. DONALD R. ELLIOTT et al., Defendants-Appellees.
    Second District
    No. 2—88—0547
    Opinion filed March 3, 1989.

      Coryn, Walker & Meehan, of Rock Island (William M. Walker, of counsel), for appellant.
    Janella L. Barbrow, John J. Kohnke, and Jay S. Judge, all of Judge & Knight, Ltd., of Park Ridge (Patrick J. Fanning, of counsel), for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Jane A. Nolan, filed a negligence action against defendants, Donald R. Elliott and his employer, the City of Rochelle, after she was injured in an automobile accident in July 1984. The jury returned a verdict for both defendants and answered a special interrogatory finding plaintiff to be the sole proximate cause of the accident. Plaintiff’s post-trial motion was denied, and this appeal followed. We affirm.

On July 14, 1984, at approximately 1:30 p.m., plaintiff was driving her 1979 Ford station wagon east on Newburg Street in Rockford, IIlinois. She had picked up her sister and four other girls in Rockford and was returning home to Bettendorf, Iowa. She was in the left-hand lane for through traffic when she approached the intersection of New-burg and Mulford. It was undisputed that she was driving within the speed limit and had a green light when she entered the intersection.

Defendant Donald Elliott was driving an ambulance north on Mulford in the left-hand lane for through traffic. Mulford is a north/ south street having two through lanes of traffic in each direction and a left-turn lane. The sirens and flashing lights were operating on the ambulance at the time defendant approached the intersection. The light was red for defendant at the time he approached the intersection. After slowing down and checking for traffic at the intersection, defendant proceeded into the intersection. He increased his speed in the intersection and was struck by plaintiff’s station wagon.

The front end of the station wagon hit the driver’s side of the ambulance. The impact caused the station wagon to spin around and strike the ambulance again, this time in the rear. The ambulance continued through the intersection, ending up approximately 100 feet north of Newburg with two wheels up on the median.

Plaintiff testified that she was driving within the speed limit as she was approaching the intersection. She remembered having a green light but that she was afraid the light was about to change to yellow. She stated that all of the car windows were up, the air conditioning was on, and the radio was playing at a low volume. She noticed several cars heading in the same direction as she was stopped in the right-hand lane at the green light. Plaintiff admitted that there were no obstructions to her view of the traffic as she entered the intersection, but at no time before the impact did she hear or see the ambulance.

Plaintiff also testified that she was severely injured as a result of the accident. She had numerous cuts on her face and legs. She also injured her neck, requiring surgery and extensive rehabilitation. The injuries forced her to delay her starting date with her new job, and she is still unable to participate in sporting activities without experiencing a great deal of neck and back pain.

Defendant Donald Elliott testified that he became a paid on-call fire fighter in February 1984. On July 14, 1984, Elliott and Bill Winebaugh (an emergency medical technician) went to Rochelle Community Hospital to pick up a patient to transfer to St. Anthony’s Hospital in Rockford. This was defendant’s first nonlocal emergency run as the driver of an ambulance. Defendant stated that the flashing lights were on at all times during the run, and the sirens were on during the run through the city streets. Defendant noted that he approached the intersection of Newburg and Mulford with caution because Winebaugh stated that he had seen numerous accidents at the intersection in the past. Defendant continued to slow down as he got closer to the intersection, eventually reducing his speed to 10 miles per hour. He did not notice any cars in the intersection, although he admitted that the stopped cars may have obstructed his vision. He also admitted that the light was red for him. Defendant began to accelerate after entering the intersection, with his speed estimated at 15 to 20 miles per hour at the time of the accident. Defendant stated that he did not see plaintiff’s car until he entered the intersection. At that time, there was no way for him to brake or otherwise avoid the collision.

Several eyewitnesses to the accident testified at trial. All of the witnesses were in automobiles at various locations at the intersection. All of them testified that the ambulance had its flashing lights on, and all but one actually heard the siren. All of the witnesses agreed that plaintiff was driving within the speed limit and that defendant had slowed down prior to entering the intersection.

On February 25, 1988, the jury returned a verdict in favor of both defendants. The jury also determined that plaintiff’s conduct was the sole proximate cause of the accident. Following the denial of plaintiff’s post-trial motion, this appeal followed.

Plaintiff raises four assignments of error on appeal: (1) whether the jury verdict and special interrogatory finding were against the manifest weight of the evidence; (2) whether the court erred in allowing a previously unidentified witness to testify at trial; (3) whether the court erred in instructing the jury that plaintiff had a duty to sound her horn before entering the intersection; and (4) whether the cumulative effect of other alleged errors deprived plaintiff of a fair and impartial trial.

Plaintiff first contends that the jury’s finding that defendants were guilty of no negligence whatsoever is against the manifest weight of the evidence. Plaintiff specifically notes that defendant disregarded a traffic light and entered a dangerous intersection with some obstructions to his vision. Plaintiff contends that this conduct, coupled with the fact that defendant began accelerating after he entered the intersection, clearly establishes defendant’s negligence as a matter of law. Plaintiff also asserts that defendant’s conduct was a proximate cause of the accident.

A jury verdict will not be disturbed on appeal unless it is against the manifest weight of the evidence. (Lynch v. Board of Education (1980), 82 Ill. 2d 415, 423, 412 N.E.2d 447; Coldwell Banker Residential Real Estate Services of Illinois, Inc. v. Jepsen (1988), 172 Ill. App. 3d 662, 666, 527 N.E.2d 79.) A verdict is against the manifest weight of the evidence when an opposite conclusion is clearly apparent or when the jury verdict appears to be arbitrary and unsupported by the evidence. (Coldwell Banker, 172 Ill. App. 3d at 666; Greenfield v. Consolidated Rail Corp. (1986), 150 Ill. App. 3d 331, 337, 500 N.E.2d 1083.) A court of review must consider the evidence in the light most favorable to the appellee when determining whether a jury verdict is against the manifest weight of the evidence. Sloan v. O’Dell (1987), 159 Ill. App. 3d 268, 273, 512 N.E.2d 105.

After examining the evidence in the case at bar in the light most favorable to defendants, we cannot agree with plaintiff’s contention that the verdict was against the manifest weight of the evidence. The record reveals that defendants were operating an emergency vehicle with all flashing lights and sirens on. The purpose of using the emergency lights and sirens is to warn pedestrians and other drivers of the danger present so that they may proceed with caution to avoid any accidents. (Ill. Rev. Stat. 1987, ch. 95V2, par. 12—601(b); Kirshenbaum v. City of Chicago (1976), 43 Ill. App. 3d 529, 532-33, 357 N.E.2d 571.) In addition, all drivers have a duty, regardless of right-of-way, to maintain a proper lookout and to take all necessary precautions to avoid an accident. (Olson v. Ortiz (1978), 60 Ill. App. 3d 787, 789, 377 N.E.2d 350.) It was undisputed that all of the vehicles at the intersection either heard or saw the ambulance, except for plaintiff. In addition, all the drivers had stopped at the intersection to allow the ambulance to proceed, except for plaintiff. The evidence shows that plaintiff neither maintained a proper lookout nor took all necessary precautions to avoid an accident before she entered the intersection.

Plaintiff contends that she never heard or saw the ambulance and that she had the right-of-way at the intersection because she had the green light. Furthermore, plaintiff notes that defendant should have seen her vehicle before he entered the intersection and by not doing so was negligent as a matter of law. We note that section 11—306 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95½, par. 11—306) controls the duties of drivers at a controlled intersection. The Code provides that vehicular traffic facing a green light may proceed through the intersection but “shall yield the right of way to other vehicles and to pedestrians lawfully within the intersection.” (Ill. Rev. Stat. 1987, ch. 95½, par. 11—306(a)(1).) Thus, a motorist’s right-of-way at an intersection is not an absolute right. (Brown v. G & M Distributors, Inc. (1984), 122 111. App. 3d 435, 439, 461 N.E.2d 95; Lode v. Mercanio (1979), 77 Ill. App. 3d 150, 154, 395 N.E.2d 1014.) Had this accident involved two ordinary vehicles, we would agree with plaintiff’s contention that defendant’s conduct in proceeding through the red light would be negligent conduct. However, the Code specifically provides exceptions for emergency vehicles. Section 11—205 allows the driver of an emergency vehicle to proceed through a red light after slowing down and making sure the intersection is safe to proceed through. (Ill. Rev. Stat. 1987, ch. 95^2, par. 11—205(c)(2).) In addition, section 11—1421 permits the driver of an ambulance to deviate from the traffic rules when proceeding on an emergency run. Ill. Rev. Stat. 1987, ch. 95½, par. 11-1421(a)(1).

Plaintiff cites Mayfield v. City of Springfield (1982), 103 Ill. App. 3d 1114, 432 N.E.2d 617, for the proposition that a driver of an emergency vehicle must proceed with caution when disobeying the traffic laws. In Mayfield, a police officer drove into a crowded intersection with his vision obstructed and hit the plaintiff’s car in the intersection. (103 Ill. App. 3d at 1116.) It was undisputed that the police officer drove through a red light and was unable to stop his vehicle in time before the collision. The court ruled that the plaintiff’s conduct was blameless in that she made a prudent attempt to stay out of the emergency vehicle’s way. (103 Ill. App. 3d at 1119.) The court noted that the police officer’s conduct would have been excused had he been operating his vehicle “within the legal safe harbor created by section 11-205.” 103 Ill. App. 3d at 1117.

We find the facts in our case to be very different from those present in Mayfield. It was undisputed that defendant Elliott slowed the ambulance down as he approached the intersection. Testimony indicated that the ambulance was traveling 40 to 45 miles per hour on Mulford, and it slowed down to 20 to 25 miles per hour approximately 100 feet from the intersection. By the time defendant reached the intersection he was driving about 10 miles per hour. It was not until he proceeded into the intersection that he began to accelerate. We do not find defendant’s conduct to be negligent and instead believe that he entered the intersection cautiously and with due regard for the safety of the other vehicles. Therefore, we do not find the jury verdict to be contrary to the manifest weight of the evidence.

Plaintiff next contends that the trial court committed reversible error in allowing Nurse Roberta Isham to testify at trial. Plaintiff claims that the nurse was not disclosed as a trial witness until the day before the trial and to allow her to testify constitutes an abuse of discovery and a surprise to plaintiff. Furthermore, plaintiff asserts that the testimony of the nurse was not relevant or material to any issue in the ease.

In response to plaintiff’s first contention, we note that whether an undisclosed witness can testify at trial rests within the sound discretion of the trial court. (Strope v. Chicago Transit Authority (1979), 71 Ill. App. 3d 987, 995, 389 N.E.2d 1374; Ocasio-Morales v. Fulton Machine Co. (1973), 10 Ill. App. 3d 719, 722, 295 N.E.2d 329.) The trial court’s decision will not be disturbed on appeal unless we find an abuse of discretion. (Strope, 71 Ill. App. 3d at 995.) Some factors to consider in determining whether a witness should be excluded from testifying include surprise and prejudice to the opposing party, the nature of the proposed testimony, the timeliness of the objection to the testimony, and whether the omission of the witness’ name was intentional or inadvertent. Strope, 71 Ill. App. 3d at 995; Ocasio-Morales, 10 Ill. App. 3d at 722.

We find the trial court’s admission of Nurse Isham’s testimony to be a proper exercise of its discretion. It was undisputed that defendants did not list Nurse Isham on plaintiff’s last set of interrogatories. Defendants claim that they did not list her because her identity was not known at that time. It was not until the evidence deposition of Dr. Young Ki Kim was taken that defendants found it necessary to call Nurse Isham. At the evidence deposition, Dr. Kim questioned whether the ambulance was actually on an emergency run at the time of the accident. Dr. Kim stated that he wrote down on the patient’s order sheet that she should be transferred to a different hospital. He noted that the transfer was done at the patient’s request and that he never directed the ambulance driver to disregard the traffic laws during the transfer. It was undisputed that Nurse Isham was the person who completed the order sheet for the patient.

The trial court determined that defendants disclosed the identity of Nurse Isham as soon as her identity was ascertained. In addition, the court specifically ruled that the nurse’s testimony would be limited to her notations on the order sheet regarding the emergency nature of the transfer. The court also noted that plaintiff would not be prejudiced by this decision because she still had the option of calling Dr. Kim, either in person or by use of the evidence deposition, to rebut the testimony. Furthermore, the court found the nurse’s testimony to be relevant to the issue of whether the ambulance was on an emergency run at the time of the accident. Defendants offered to stipulate that the ambulance was on an emergency run so that the nurse’s testimony would be unnecessary, but counsel for plaintiff responded: “Call Nurse Isham. Let’s just stop the argument, let’s just call Nurse Isham.” Furthermore, we believe the nurse’s testimony to be relevant and material to the issue of whether the ambulance was actually on an emergency run. We do not believe that defendant’s failure to identify Nurse Isham in the interrogatories precluded her from testifying at trial. See Magnone v. Chicago & North Western Transportation Co. (1984), 126 Ill. App. 3d 170, 466 N.E.2d 1261 (trial court did not abuse discretion in permitting witness not identified in interrogatory answers from testifying).

Plaintiff’s third contention is that the trial court committed reversible error in instructing the jury that plaintiff should have sounded her horn before entering the intersection. The trial court, over plaintiff’s objections, gave defendants’ instruction No. 9, based upon section 12—601 of the Code, which provided:

“The driver of a motor vehicle shall when reasonably necessary to insure safe operation give audible warning with his horn but shall not otherwise use such horn when upon a highway.” (Ill. Rev. Stat. 1987, ch. 95½ par. 12 — 601(a).)

The following discussion occurred during the jury instruction conference:

“MR. WALKER [attorney for plaintiff]: *** I don’t find that anywhere in the statute that somebody is suppose [sic] to blow their horn on a green light. *** [T]hat statute is not designed to, for a person approaching an intersection, a green light intersection, blowing your horn.
THE COURT: How about when a vehicle is in the intersection when you got the green light?
MR. WALKER: I don’t know.
MR. FANNING [attorney for defendant]: It’s exactly what it’s designed for, Judge, and if you’ll read the statute, you’ll find that it’s exactly what it’s designed for.
THE COURT: Alright. Leave it in.”

The standard for determining the adequacy of jury instructions is whether the instructions were sufficiently clear to avoid misleading the jury, while at the same time fairly and accurately stating the law. Coldwell Banker, 172 Ill. App. 3d at 667; Black v. Peoria Marine Construction Co. (1987), 160 Ill. App. 3d 357, 364, 513 N.E.2d 622.

Plaintiff contends that she could not have been expected to blow her horn before entering the intersection because the traffic light was green and she had observed no vehicles in her way. She did not see the ambulance enter the intersection, and she thus contends that the instruction as to sounding her horn was prejudicially misleading and was reversible error.

Defendants respond that plaintiff should have seen the ambulance enter the intersection and that she should have sounded her horn before entering the intersection. Defendants note that this is especially true because all of the other vehicles at the intersection had seen the ambulance and had been able to pull over to the side of the road and let the ambulance pass.

We do not believe that defendants’ instruction No. 9 was improper. Even though plaintiff testified she did not see the ambulance before the collision, we believe there was sufficient evidence before the jury that she should have seen or heard the ambulance prior to entering the intersection. Thus, it was not improper to give the instruction because it was a question of fact for the jury to consider whether it was “reasonably necessary” for plaintiff to sound her horn before entering the intersection. Thomas v. Consolidated School District No. 429 (1972), 7 Ill. App. 3d 45, 50, 286 N.E.2d 536; Schmitt v. Chicago Transit Authority (1962), 34 Ill. App. 2d 67, 78, 179 N.E.2d 838.

Plaintiff also contends that she was deprived of a fair trial based on the cumulative effect of certain trial court errors. Specifically, plaintiff argues that the trial court ruled incorrectly on certain objections to evidence and argument.

Plaintiff first notes that the trial judge improperly prevented eyewitness James Goodin from testifying as to the proper procedures for an ambulance driver to follow while on an emergency run. Mr. Goodin was employed as an ambulance driver from 1960 to 1963 and had actually driven an ambulance at least 12 times on emergency runs. Plaintiff did not disclose Mr. Goodin as an expert witness because she did not consider his testimony to be that of an expert. The trial court disagreed, stating: “He’s testifying as to the standard and unless he’s a qualified expert, he can’t do that, and you haven’t disclosed him and then you can’t ask him those questions.”

We agree with the trial court’s decision in barring the testimony of witness Goodin as to the proper procedures for ambulance drivers to follow when operating on an emergency run. The testimony as to what the proper standard of care is for an ambulance driver is beyond the knowledge of an average person and thus constitutes expert testimony. (107 Ill. 2d R. 220(a)(1).) It is undisputed that plaintiff never disclosed Goodin as an expert witness. Supreme Court Rule 220 specifically provides that the failure to disclose an expert will result in the expert’s testimony being barred. (107 Ill. 2d R. 220(b)(1); Castro v. South Chicago Community Hospital (1988), 166 HI. App. 3d 479, 482-83, 519 N.E.2d 1069.) We do not believe that the trial court erred in excluding Goodin’s testimony relating to proper procedures for am-balance drivers to follow.

Plaintiff next contends that the trial court erred in permitting eyewitness Bill Winebaugh to testify as a reconstruction expert. A reconstruction expert is one who seeks to recreate the accident from a given set of facts. (Gale v. Hoekstra (1978), 59 Ill. App. 3d 400, 410-11, 375 N.E.2d 456.) In Gale, the court held that a police officer could testify regarding the absence of skid marks on the shoulder of the road near the point of impact of an accident. (59 Ill. App. 3d at 410-11.) The court concluded that the officer was testifying as to observations he made of physical facts, and not as to interpretations of data he received to reconstruct the accident. (59 Ill. App. 3d at 411.) We do not find any indication in the record that Bill Winebaugh was testifying as a reconstruction expert. Winebaugh testified that he was the emergency medical technician in the ambulance at the time of the accident. After the accident, Winebaugh left the ambulance and observed the tire marks on the street from the ambulance. Plaintiff claims that Winebaugh was testifying as an expert because he testified as to the tire marks on the pavement. We disagree. It is apparent from the record that Winebaugh was testifying only as to what he observed at the scene of the accident. We find no error in allowing him to testify as to the skid marks based on his own personal observations at the scene of the accident.

Plaintiff also claims that the trial court improperly refused to admit into evidence a diagram of the accident scene made by eyewitness Luther Rowlett. The court refused to admit the diagram because it was inaccurate and did not reflect the witness’ testimony. The court determined that the diagram was misleading and would only serve to confuse the jury. We note that the admissibility of diagrams rests within the sound discretion of the trial court. (Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 706, 450 N.E.2d 1199.) The trial court’s ruling will be disturbed only on a showing of clear abuse. (Burke v. Toledo, Peoria & Western R.R. Co. (1986), 148 Ill. App. 3d 208, 213, 498 N.E.2d 682.) We find nothing in the record to indicate that the trial court abused its discretion in refusing to admit a diagram into evidence when the diagram would only confuse or mislead the jury.

Plaintiff further claims that the trial court erred in barring any testimony relating to the injuries that the passengers in plaintiff’s car received as a result of the collision. It is plaintiff’s position, that the jury should have heard this testimony to explain why the passengers were unable to testify as to the details of the accident. The court determined that the extent of the passengers’ injuries was not relevant to plaintiff’s case and would only serve to prejudice the defendants. The decision to exclude testimony is within the sound discretion of the trial court. (Peterson Welding Supply Co. v. Cyrogas Products, Inc. (1984), 126 Ill. App. 3d 759, 766, 467 N.E.2d 1068.) We do not believe the trial court abused its discretion in refusing to allow testimony concerning the extent of the passengers’ injuries. The record indicates that the passengers, other than plaintiff’s sister, were all sleeping or had their eyes closed just prior to the accident. Thus, we believe the extent of the passengers’ injuries had nothing to do with why the passengers were unable to testify as to their personal observations just prior to the accident.

Plaintiff also asserts that defendants violated the order in limine by referring to plaintiff’s father, an attorney, and in mentioning the existence of insurance to the jury. Plaintiff notes that both of these violations of the order in limine were improper and prejudiced the jury. We disagree. The in limine order provided that defendants were not allowed to “mention, refer to, interrogate concerning *** the pecuniary circumstances of the family of plaintiff Jane Nolan.” We do not believe a reference to plaintiff’s father as an attorney in any way violated the order, as it did not reveal the pecuniary circumstances of plaintiff’s family.

In addition, we do not believe that plaintiff was prejudiced by having a reference to insurance brought to the jury’s attention. On cross-examination, a defense witness testified:

“Q. Did you, at one time, indicate it was about a half block to two-thirds a city block, isn’t that right?
A. Yeah, I think a gentleman came and took a deposition from Country Companies within a month, month-and-a-half after the accident ***.”

Plaintiff moved for a mistrial based on the fact that the jury heard the witness mention “Country Companies,” an insurance company. Not every reference to an insurance company will require a mistrial. (Goldstein v. Scott (1982), 108 Ill. App. 3d 867, 878-79, 439 N.E.2d 1039; Twait v. Olson (1982), 104 Ill. App. 3d 191, 196, 432 N.E.2d 1244.) The trial judge determined that the witness’ reference to insurance was unintentional and denied plaintiff’s motion for a mistrial. We do not believe the trial court abused its discretion in refusing to declare a mistrial based on one reference to insurance and in a context which does not establish prejudice.

We do not find that plaintiff was prejudiced by any of the trial court’s rulings. In addition, we believe that all parties received a fair and impartial trial. We find no reversible error in the conduct of the trial or in the giving of jury instructions. For the reasons stated above, we affirm the judgment of the circuit court of Ogle County.

Affirmed.

LINDBERG and WOODWARD, JJ., concur.


author: JUSTICE DUNN

text:
    CYNTHIA PALMISANO, Plaintiff-Appellant, v. JACK CONNELL, Ex’r of the Estate of Ellen C. Hannon, Defendant-Appellee.
    Second District
    No. 2—88—0393
    Opinion filed February 24, 1989.
    Rehearing denied April 3, 1989.

      Benedict Schwarz II, of Schwarz & Golden, Ltd., of West Dundee, for appellant.
    John J. O’Connor, of McKenna, Storer, Rowe, White & Farrug, of Wheaton, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Cynthia Palmisano, appeals from an order which dismissed her contract action for unpaid medical bills against defendant, Jack Connell, as executor of the estate of Ellen Hannon. Plaintiff raises three issues for review: (1) whether her petition for change of venue sufficiently alleged that the trial judge was prejudiced against her or her attorney; (2) whether the trial court erred by granting defendant’s motion to dismiss; and (3) whether the trial court abused its discretion in awarding attorney fees pursuant to section 2—611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611).

On July 13, 1987, plaintiff filed a small claims complaint which alleged that defendant, as executor of Hannon’s estate, owed her $976.85 for medical services rendered to Hannon. Pursuant to section 2—619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2—619), defendant filed a motion to dismiss plaintiff’s complaint which alleged that he was neither the executor nor administrator of Hannon’s estate and therefore not liable for its debts.

In plaintiff’s reply to defendant’s section 2 — 619 motion, she alleged that on April 30, 1987, Medicare advised her attorney and husband, Michael Palmisano, that Hannon’s claim had been processed and a check was issued to Hannon’s estate. On that same day, Michael wrote a letter to Carolyn Connell, Hannon’s daughter, which stated that the balance due on Hannon’s medical bill was $1,841.37. Plaintiff’s reply further alleged that on May 9, 1987, Michael telephoned Carolyn to inquire about payment of Hannon’s medical bill. Carolyn told Michael that her husband, defendant, was taking care of processing the bills for Hannon. Subsequent to that telephone conversation, plaintiff received three checks from Hannon’s estate which reduced the balance due on plaintiff’s bill to $976.85. Each check which plaintiff received was endorsed as follows: “Pay to the Order of Cynthia Palmisano, M.D., Estate of Ellen C. Hannon by John Connell [defendant].”

Plaintiff asserted that defendant was liable for Hannon’s medical bills under the theory that he was a “de facto” administrator or that he was acting as an agent with apparent authority. The copy of the reply in the record on appeal was neither signed nor verified by plaintiff or her attorney. In his response to plaintiff’s reply, defendant asserted that because he was not appointed executor or administrator of Hannon’s estate, he could not be sued as a representative of the estate.

On October 20, 1987, plaintiff presented a petition for change of venue pursuant to section 2—1001(a)(2) of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2—1001(a)(2)). The trial court denied plaintiff’s petition for change of venue and granted defendant’s motion to dismiss plaintiff’s complaint. The trial court gave defendant leave to file a motion for attorney fees pursuant to section 2—611 and costs pursuant to section 5—118 of the Code (Ill. Rev. Stat. 1987, ch. 110, pars. 2—611, 5—118), which defendant filed on October 29.

On November 18, 1987, plaintiff filed a motion to vacate the trial court’s October 20 order. Plaintiff’s motion to vacate challenged only that part of the trial court’s order which denied her motion for change of venue. In denying plaintiff’s motion to vacate, the trial court stated that plaintiff’s petition for change of venue failed to comply with the requirements of section 2 — 1001 because it failed to allege prejudice.

On January 14, 1988, plaintiff filed several motions. Plaintiff filed her second petition for change of venue which alleged that the trial judge had engaged in a pattern of prejudice against her and her attorney. Plaintiff filed a motion to vacate the dismissal of her complaint which incorporated by reference the arguments presented in her response to defendant’s section 2 — 611 motion. In plaintiff’s response to defendant’s section 2 — 611 motion, she alleged that her attorney made a reasonable inquiry as to who was responsible for administering Han-non’s estate. Plaintiff further alleged that her theories of recovery were warranted by a good-faith argument for the extension or modification of existing law. At this point, plaintiff raised a third theory of liability in support of her cause of action called “executor de son tort.” Under that theory, plaintiff asserted that defendant could be held liable for any unauthorized intermeddling in Hannon’s estate. Plaintiff also filed her own motion for attorney fees pursuant to section 2 — 611.

On February 2, 1988, the trial court denied plaintiff’s January 14 motions. The trial court then conducted an evidentiary hearing on defendant’s section 2 — 611 motion for attorney fees. The trial court granted defendant’s section 2 — 611 motion and assessed attorney fees and costs against plaintiff in the amount of $1,296.10.

On March 2, 1988, plaintiff filed her third motion for change of venue and a motion to vacate the trial court’s February 2 order. In her motion to vacate, plaintiff sought reversal of the court’s imposition of attorney fees pursuant to section 2—611. Plaintiff alleged that her attorney was not under a duty to inquire with the clerk of the probate court as to whether letters of administration had been issued or whether Hannon’s will had been probated. Plaintiff averred that her March 2 motion to vacate was her first and only post-judgment motion pursuant to section 2—1203 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2—1203).

On March 16, 1988, after conducting a hearing on plaintiff’s March 2 motions, those motions were denied. On April 15, 1988, defendant filed a notice of appeal from the trial court’s March 16 order. There is one other noteworthy fact in this case. The record is silent as to whether Hannon had a will, whether Hannon’s will was probated and whether someone was appointed as administrator or executor of Hannon’s estate.

Before addressing the merits of this case, we must first discuss whether plaintiff has properly invoked our appellate jurisdiction. Defendant contends that plaintiff has failed to file her notice of appeal within 30 days after the entry of the order disposing of plaintiff’s last pending post-trial motion. (See 107 Ill. 2d R. 303(a).) On October 20, 1987, the trial court dismissed plaintiff’s complaint, and on November 18, 1987, plaintiff filed a motion to vacate the October 20 order. Plaintiff’s motion to vacate was denied on November 30, 1987. Defendant asserts that although plaintiff filed numerous other motions, the November 30 judgment disposed of plaintiff’s initial claim and commenced the 30-day period for filing an appeal.

Plaintiff contends that the trial court had not entered a final judgment until it disposed of defendant’s section 2 — 611 motion for attorney fees. On March 16, 1988, the trial court denied plaintiff’s motion to vacate the imposition of attorney fees, and on April 15, 1988, plaintiff filed a notice of appeal from the March 16 order. Plaintiff concludes that she therefore filed a timely notice of appeal from the March 16 order. Consequently, the jurisdictional issue raised by this appeal is whether the November 30 order denying plaintiff’s post-trial motion to vacate was a final, appealable order from which plaintiff had 30 days to file a notice of appeal.

Supreme Court Rule 303(aXl) states:

“Except as provided in paragraph (b) below, the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the last pending post-trial motion.” 107 Ill. 2d R. 303(a)(1).

In Hise v. Hull (1983), 116 Ill. App. 3d 681, 452 N.E.2d 372, the court dismissed an appeal from an order granting a motion to dismiss an amended complaint because a request for sanctions pursuant to section 2—611 which was made in the motion to dismiss was pending at the time the notice of appeal was filed. The court stated that in the absence of a finding pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) that there was no just reason to delay enforcement or appeal from the order, it was not appealable because it did not dispose of all pending claims. Hise, 116 Ill. App. 3d at 684, 452 N.E.2d at 374-75.

The court stated further in Hise that a section 2—611 claim could be brought as a separate action any time within 30 days of judgment. (116 Ill. App. 3d at 684, 452 N.E.2d at 375.) If this were done, the failure of the trial court to rule on the section 2—611 claim would not prevent a ruling disposing of the initial claim from being immediately appealable in the absence of a Rule 304(a) finding. (116 Ill. App. 3d at 684, 452 N.E.2d at 375.) Since defendant’s section 2 — 611 claim was brought in a responsive pleading, the claim remained a part of the initial action. (116 111. App. 3d at 684, 452 N.E.2d at 375.) In Withall v. Capital Federal Savings (1987), 164 111. App. 3d 851, 518 N.E.2d 328, the court agreed with the holding in Hise that section 2 — 611 claims could be brought as separate actions and would not affect the appeal-ability of the initial claim under such circumstances. Withall, 164 111. App. 3d at 854-55, 518 N.E.2d at 330-31.

The recent amendments to section 2 — 611 (see Pub. Act 84 — 1431, art. 2, §1, eff. November 25, 1986), were not applicable to the claims brought in Hise and Withall. The amended statute is applicable to the case at bar, however, since the complaint was filed on July 13, 1987. The following language was added to section 2 — 611 in the recent amendments:

“All proceedings under this Section shall be within, and part of the civil action in which the pleading, motion or other paper referred to herein has been filed, and no violation or alleged violation of this Section shall give rise to a separate cause of action, or another cause of action within the civil action in question, by, on behalf of or against any party to the civil action in question, and by, on behalf of or against any attorney or insurance company involved in the civil action in question.” Ill. Rev. Stat. 1987, ch. 110, par. 2—611.

It is clear from the above language that section 2 — 611 claims must now be considered part of the civil action which gave rise to the claim and cannot be considered separate actions. (See Herman v. Fitzgerald (1989), 178 Ill. App. 3d 865, 869.) In Herman, we held that since section 2—611 motions must be brought within the underlying civil action, they must be filed within 30 days of judgment in the underlying action. Herman, 178 Ill. App. 3d at 869.

In People v. King (1988), 170 Ill. App. 3d 409, 524 N.E.2d 723, a case in which the State filed a section 2—611 claim within 30 days of the denial of defendant’s petition pursuant to section 2—1401 of the Code to rescind a statutory summary suspension, the court cited Hise in support of its conclusion that the section 2—611 claim was a separate action. (King, 170 Ill. App. 3d at 417, 524 N.E.2d at 728.) Although the recent amendments to section 2—611 were applicable to the State’s claim, the court in King failed to consider the effect of those amendments. We decline to follow King because it is clear from the recent amendments to section 2—611 that claims under that provision must be brought as part of the underlying action and cannot be brought as separate actions. Accordingly, we conclude that if a section 2—611 claim is timely filed, no appeal may be taken from the underlying judgment absent a Rule 304(a) finding until the section 2—611 claim is resolved. In the present case, since plaintiff filed her notice of appeal within 30 days of the denial of her post-trial motion attacking the section 2—611 judgment, we have jurisdiction to consider the underlying judgment and the other orders from which defendant appeals.

Plaintiff’s first petition for a change of venue, which sought a substitution of judges, was filed before the trial judge made any substantive rulings in the case. The trial judge denied the petition on the basis that it failed to allege proper grounds. Plaintiff argues, although the word prejudice does not appear in the petition, that it does in fact allege prejudice against her on the part of the trial judge, which is a ground for change of venue under section 2 — 1001(a)(2) of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2-1001(a)(2)).

If a petition for change of venue on the basis of the trial judge’s prejudice is made, verified, and filed in accordance with the statutory requirements before any substantive ruling is made, only general allegations of prejudice are necessary and the petitioner has an absolute right to a substitution of judges. (In re Marriage of Betts (1987), 155 Ill. App. 3d 85, 95-96, 507 N.E.2d 912, 919.) Plaintiff argues that the following statements from her petition were sufficient allegations of prejudice:

“The Courts [sic] allowance of Defendant’s 2 — 619 Motion to Dismiss places an unconscionable burden upon Plaintiff’s right to due process. This Motion has created delay, complicated the process to trial and created an economic burden upon Plaintiff’s right to due process that far exceeds the total value of her claim. We believe the trial judge’s allowance of this Motion shows an insensitivity to the burdens placed upon Plaintiff’s right to due process of small claims and therefore respectfully request re-assignment of this case to another judge.
* * *
The decision of the trial judge to require Plaintiff to answer Defendant’s motion and the order to have a separate hearing on this motion appears to show an abuse of the trial judge’s discretion in favor of the Defendant so that Plaintiff must respectfully request re-assignment of this case to another judge.”

When plaintiff’s attorney spoke of “the allowance of this Motion,” he apparently meant the decision of the trial court to grant leave to file the motion, since the motion had not yet been granted. Leave to file a motion is necessary in small claims cases. 113 Ill. 2d R. 287(b).

We do not interpret the above passages from plaintiff’s initial petition for change of venue as allegations of prejudice. Instead, they are merely allegations that the trial court made erroneous rulings and reasons why plaintiff believed the rulings to be erroneous. The fact that a judge’s mind is closed on a point of law is not considered personal prejudice for purposes of a petition for change of venue. (In re Estate of Roselli (1979), 70 Ill. App. 3d 116, 122, 388 N.E.2d 87, 92.) Similarly, we do not believe the allegation that the judge made erroneous rulings against a party to be an allegation of personal prejudice.

Plaintiff contends that even if she failed to allege prejudice on the part of the trial judge, she should have been permitted to amend her petition in order to make the necessary allegation. Plaintiff relies upon Spanberger v. Tulyasathien (1979), 76 Ill. App. 3d 867, 395 N.E.2d 689, which is distinguishable from the instant case.

In Spanberger, the petition for change of venue contained sufficient allegations of prejudice but was not verified. The court stated that under the circumstances of the case, when the fairness of the trial judge had been called into question, the trial court should have stated the reason for denying the petition and should have permitted defendant to amend the petition if it was denied for lack of verification. (Spanberger, 76 Ill. App. 3d at 870, 385 N.E.2d at 691.) Here, however, since plaintiff made no allegations of prejudice in her original petition for change of venue, the fairness of the trial court had not been called into question at the time. The trial court’s denial of the petition for change of venue was therefore proper.

In her notice of appeal, plaintiff states that she is appealing from the denial of all three of her petitions for change of venue. Plaintiff makes no arguments in her brief relating to the denial of her second or third petitions, however. She has therefore waived consideration of the denial of these petitions on appeal. 113 Ill. 2d R. 341(e)(7).

Plaintiff next argues that the trial court erred by granting defendant’s motion to dismiss, which was made pursuant to section 2—619 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). Plaintiff’s complaint alleged only that defendant was the executor of the estate of Ellen Hannon and that an account stated existed between plaintiff and the estate in the amount of $976.88 for medical services rendered to the decedent. Defendant’s motion to dismiss alleged that defendant had not been appointed executor or administrator of the Hannon estate and was supported by his affidavit to that effect.

In her response to the motion to dismiss, plaintiff stated that she had received three Blue Cross/Blue Shield checks in the mail, each of which was made out to either Ellen Hannon or her estate. The three checks were endorsed by defendant on behalf of the estate and purported copies of the checks were attached to the response. The copy of the response in the record on appeal is not signed or verified and is not supported by any affidavits.

Defendant’s motion was made pursuant to section 2—619(a)(9) of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2—619(a)(9)), which involves motions to dismiss which raise affirmative matter avoiding the legal effect of or defeating the claim. Where, as here, such a motion refutes a conclusion of material fact unsupported by specific facts contained in or inferred from the complaint, it amounts to essentially a summary judgment procedure. (Ralston v. Casanova (1984), 129 Ill. App. 3d 1050, 1056, 473 N.E.2d 444, 448.) If a critical issue of material fact is refuted by affirmative matter, a motion made pursuant to section 2—619(a)(9) may be granted. Ralston, 129 Ill. App. 3d at 1056, 473 N.E.2d at 449.

Defendant asserts that the trial court properly granted his motion to dismiss because his affidavit refuted the crucial allegation that he was executor of the Hannon estate. Plaintiff contends that the facts set forth in her response to the motion establish defendant’s potential liability under the theory of executor de son tort. Even if those facts had been supported by affidavit, however, they would not form the basis of recovery under the aforementioned theory.

An executor de son tort is an individual who wrongfully inter-meddles with a decedent’s estate and who, without any authority, performs acts that may only be performed by an executor or administrator. (In re Estate of Crowder (1979), 75 Ill. 2d 197, 204, 387 N.E.2d 665, 668.) By performing such acts, the executor de son tort becomes a sort of quasi-executor, although only for the purpose of being sued or held liable for any assets with which he has intermeddled. Estate of Crowder, 75 Ill. 2d at 204, 387 N.E.2d at 668.

Assuming, arguendo, that defendant is an executor de son tort, he can only be held liable for any assets with which he has intermeddled. Thus, if defendant assumed the task of paying estate debts out of estate assets, he would also assume the burden of producing evidence that any such claims were valid and would be compelled to reimburse the estate if he failed to meet this burden. (See Holeton v. Thayer (1899), 89 Ill. App. 184, 187.) Thus, the purpose of the theory of executor de son tort is to protect the estate by requiring those who wrongfully interfere with its assets and cause losses to reimburse the estate for those losses.

Plaintiff does not allege in her brief or in her response to the motion to dismiss that defendant’s interference with estate assets resulted in any losses to the estate. Since the only interference with estate assets mentioned in the response was the payment of bills to plaintiff, she would hardly be expected to argue that the payment of these bills harmed the estate because they were not valid. Instead, plaintiff argues, in effect, that defendant’s act of paying some estate bills creates a continuing duty on his part to pay other estate bills.

Under Crowder, it is clear that defendant would not have a duty to pay other estate bills out of his own assets, since an executor de son tort can only be held liable for those assets with which he has intermeddled. (75 Ill. 2d at 204, 387 N.E.2d at 668.) It would make little sense to compel defendant to continue paying estate obligations with estate assets since this would perpetuate his alleged wrongful interference with the estate. The purpose of the theory of executor de son tort is to protect against wrongful interference with the estate, not to compel its continuance. Accordingly, this theory does not provide any basis for recovery. Since defendant’s affidavit established that he was not the executor or administrator of Ellen Hannon’s estate, he could not be held liable for estate debts, and the motion was properly granted.

Plaintiff’s final contention is that the trial court abused its discretion by awarding defendant $1,296.10 in costs and attorney fees as a sanction pursuant to section 2—611 of the Code. (Ill. Rev. Stat. 1987, ch. 110, par. 2-611.) The trial court held an evidentiary hearing on February 2, 1988, on the motion. There is no transcript from this hearing in the record on appeal. Defendant filed a report of proceedings pursuant to Supreme Court Rule 323(c) (107 Ill. 2d R. 323(c)) which was certified by the trial judge. The report of proceedings mentions the hearing on defendant’s section 2—611 motion and states that defendant presented evidence at the hearing but contains no summary of the evidence. The record on appeal is therefore incomplete with regard to the issue of whether the imposition of section 2—611 sanctions was proper.

As the appellant, plaintiff has the burden of presenting a sufficiently complete record of the proceedings in the trial court to support her claim of error. (Pecora Oil Co. v. Johnson (1987), 156 Ill. App. 3d 521, 523, 509 N.E.2d 495, 497.) We must presume in the absence of such a record that the trial court’s ruling was in conformity with the law and had a sufficient factual basis. (Pecora Oil Co., 156 Ill. App. 3d at 523, 509 N.E.2d at 497.) Any doubts resulting from the incompleteness of the record will be resolved against the appellant. Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 391-92, 459 N.E.2d 958, 959.

In the instant case, it is quite possible that the trial court relied in whole or in part upon evidence presented at the February 2, 1985, hearing when it granted defendant’s section 2 — 611 motion. Since the record on appeal does not indicate what evidence was presented at this hearing, we must presume that the trial court’s ruling on the motion was in conformity with the law and had a sufficient factual basis. While it may seem unfair to penalize plaintiff because of the inadequacy of defendant’s report of proceedings, we must point out that defendant, as appellee, had no obligation to file a report of proceedings or to ensure the completeness of the record on appeal. These burdens belonged to plaintiff, who could have filed her own report of proceedings or amendments to defendant’s report. Since the record is inadequate for review of the trial court’s ruling on defendant’s section 2 — 611 motion, we affirm that ruling.

For the reasons stated herein, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

UNVERZAGT, P.J., and INGLIS, J., concur.