text:
    HEATHER COLLIER et al., Plaintiffs-Appellees, v. AVIS RENT A CAR SYSTEM, INC., et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 1 — 92—0220, 1—92—0221 cons.
    Opinion filed June 23, 1993.

      D. Kendall Griffith and Bruce L. Carmen, both of Hinshaw & Culbertson, of Chicago, for appellant Avis Rent A Car System, Inc.
    Raymond Roffi, of Chicago, for appellant Joseph Murray.
    Joseph R. Curcio, Ltd., and David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky and Linda A. Bryceland, of counsel), for appellees.
   PRESIDING JUSTICE TULLY

delivered the opinion of the court:

This cause of action arises out of an automobile collision that occurred on April 20, 1986, between plaintiff Gary Collier’s (Gary’s) vehicle and an automobile owned by defendant Avis Rent A Car System, Inc. (Avis), that was being driven by Avis’ employee, defendant Joseph Murray. Gary had two passengers in the car with him that day: in the front seat was his wife, plaintiff Heather Collier (Heather), and in the back seat was his daughter, plaintiff Elizabeth Collier (Elizabeth). Subsequent to the accident, plaintiffs filed suit against Murray and Avis to recover damages for injuries they sustained as a result of the incident. It is only Heather’s injuries that are the subject of the instant appeals.

After a jury trial, the trial court entered judgment in favor of Heather and against Murray and Avis for $1,495,755 on November 22, 1991, nunc pro tunc October 25, 1991. On December 10, 1991, the trial court denied the individual post-trial motions of both Avis and Murray. It is from the judgment and the order of December 10, 1991, that defendants appealed separately to this court pursuant to Supreme Court Rule 301. (134 Ill. 2d R. 301.) Subsequently, this court consolidated defendants’ appeals.

FACTUAL BACKGROUND

Avis is an automobile rental agency, operating through numerous facilities. In April of 1986, Murray was employed by Avis in the capacity of a shuttler for its facility located at O’Hare International Airport in Chicago, Illinois. A shuttler is an employee who drives cars from one Avis facility to another. Avis shuttlers are hourly employees who typically work two to three days per week. Every time a shuttler moves an Avis vehicle, it is done so on the basis of a nonrevenue or vehicle transfer contract. Accordingly, a lengthy document indicating the vehicle being moved, the vehicle’s mileage, and where the vehicle is being taken to and from is prepared.

Avis had a policy known as a “dead-head” procedure available to employees in good standing. Under this policy, if a shuttler’s home facility had a car belonging to another Avis facility, and that other facility had a car belonging to the home facility, a shuttler could obtain permission to move the cars between the two facilities and have use of the home facility’s vehicle for his or her own use on the return trip.

When Murray was hired by Avis, he was given a set of rules and regulations involving shuttlers and the moving of Avis vehicles. Avis company policy and procedures required that when one of its cars was involved in a collision, an accident report be prepared. The report was then to be reviewed for completeness and signed by an Avis manager. In April of 1986, Carol Forsyth was employed as a distribution manager for Avis at O’Hare; one of her duties as manager was to supervise shuttlers, including Murray.

On April 17, 1986, Murray noticed that the O’Hare facility had in its parking lot a car belonging to an Avis facility in Moline, Illinois. Murray asked Forsyth if there was an O’Hare vehicle in Moline. Forsyth checked a computer report which showed that the Moline facility had an O’Hare car. According to Murray, he asked Forsyth if he could have use of the O’Hare car he would obtain in Moline after dead-heading the Moline car to that facility. Forsyth stated that Murray had said that he wished to go to Moline to visit a friend. Subsequently, a nonrevenue transfer was executed which indicated that the return date on the transfer from Moline to O’Hare as April 18, 1986, at 11 p.m.

In the early afternoon of April 18, 1986, Murray picked up the O’Hare vehicle from the Moline facility and went to a brother-in-law’s home in Hanover Park, Illinois. Murray used the car on April 18 and 19,1986.

By the early afternoon of April 20, 1986, Murray had consumed seven to eight beers. At trial, Murray said that he received a telephone call informing him that his brother in Dolton, Illinois, suffered a heart attack and, consequently, he left to visit him.

In Hanover Park, Murray drove east on Lake Street towards Interstate 290. Murray estimated that he was traveling at 30 to 35 miles per hour as he neared Gary Avenue, which runs perpendicular to Lake Street. At that time, Gary, Heather and Elizabeth were in their stopped car at the intersection of Gary Avenue and Lake Street. Murray estimated that as he approached the Colliers’ car he was between 20 to 35 feet from the rear of the Collier car when he applied the brakes before hitting it in the rear.

Officer Mark Walford of the Hanover Park police department was the first officer to arrive at the scene. Walford had been a police officer for 10½ years, and while not specifically trained at estimating speed from the amount of damage to vehicles, he had been trained and experienced in the observation of the extent of damage to vehicles and has seen collisions at varying speeds. In Walford’s opinion, Murray’s vehicle was going approximately 35 miles per hour at the time of impact.

Subsequently, Deputy Sheriff Marshall Norby of the Du Page County sheriff’s department arrived and took charge of the investigation. Norby testified that after surveying the situation and speaking to the other officers present at the scene, he approached Murray, who was still in the Avis vehicle, and explained that the car would have to be towed due to the extensive damage it incurred. According to Norby, Murray responded that he worked for Avis, that the car was owned by Avis, and that he was taking it back to the O’Hare facility. Murray stated that he could not recall his conversation with Norby.

While speaking to Norby about ordering a tow truck, Norby smelled the odor of alcohol coming from the car’s window. Murray’s speech was slurred and he mumbled. When the tow truck arrived, Norby got Murray out of the vehicle and directed him towards a squad car. At that time, Norby noticed that Murray’s gait was unstable. Consequently, Norby concluded that Murray was intoxicated and transported him to the Bloomingdale police department.

At the police station, Murray refused to take a breathalyzer test, balance and walking tests, or answer questions for the interview portion of the alcohol influence report form. Norby asked Murray what his occupation was, to which Murray answered that he was a shuttler for Avis. When asked by Norby when the last time.he worked, Murray responded, “right now.” Murray never indicated to Norby that he was headed out to Dolton to visit a brother that he believed had had a heart attack.

On the morning of April 21, 1986, Forsyth received a telephone call from Murray from the Du Page County jail. Forsyth testified that Murray told her that while driving the O’Hare car he had been in a collision, received a traffic citation, and that the car had been towed. Forsyth explained that at the time it was Avis policy to take a report whenever an employee got into an accident. Thus, she took.down the information provided by Murray over the telephone and entered it onto an Avis accident report form. On the line that stated for whom and what purpose the vehicle was being used at the time the accident occurred, Forsyth wrote “dead-heading” from Moline to O’Hare “own time.” Later that day, Forsyth had Murray sign the form.

Murray was ■ suspended from Avis pending the outcome of the criminal charges against him for driving under the influence of alcohol. Subsequently, Murray appeared in court and pled guilty to the charge. Consequently, Murray was discharged on June 15,1986.

Murray testified that it was his intention, immediately prior to the collision, to go over to Interstate 290. If Murray were to have taken Interstate 290 going north it would have taken him to O’Hare, where he was to have dropped off the Avis vehicle. Nevertheless, at trial Murray asserted that he was going to Dolton to see his brother who he thought had suffered a heart attack.

However, at trial plaintiffs introduced evidence that Murray’s brother had not been hospitalized on the date of the collision. Plaintiffs further introduced evidence to show that Murray’s brother had worked at his job from April 21, 1986, through April 26, 1986, the date of his heart attack and subsequent death.

Murray testified that it was his understanding that while he was driving an Avis vehicle from one locale to another, regardless of whether being paid for the trip, he was still in Avis’ employ as he was moving its car. Moreover, Murray stated that it was his understanding that the use of an automobile itself was a form of pay. Furthermore, in its answer to plaintiffs’ original complaint, Avis admitted agency. Subsequently, in amended pleadings, Avis denied this allegation of plaintiffs.

Heather was transported by ambulance to Glendale Community Heights Hospital after the collision. At the hospital, Heather complained of pain in her head, neck, and upper right shoulder. X rays were taken of Heather’s spine. She was advised to apply ice, given a prescription and sent home.

Heather’s physical condition did not improve. Dr. Matías Castro, a board-certified neurosurgeon and board-eligible neurologist, examined Heather on April 26, 1986. Castro noted that Heather had been in an accident in which she was rear-ended without suffering a loss of consciousness. Castro’s examination of Heather showed that since the accident she had severe radicular pain and paresthesia on her left side. Specifically, she was complaining of a severe, sharp pain shooting down her left arm. Additionally, she suffered decreased strength of the left deltoid resulting in difficulty in elevating her left arm above shoulder level. Castro’s examination also indicated that there was pressure to Heather’s fifth cervical nerve route.

After completing X rays, a CT scan and a cervical myelogram, Castro concluded that Heather had a benign tumor at the level of the fourth and fifth vertebrae on the left side. It was Castro’s opinion that this condition could have existed for several years without incident had there not been an external force at work. Subsequently, Castro operated on Heather and found a neurofibroma or dumbbell-shaped tumor. One part of this tumor was inside of the cover of the spinal cord and the other part was outside of it. Castro concluded that the neurofibroma had been in existence prior to the advent of the collision, but that it was during the accident that there was a flexion and extension of the neck that resulted in bleeding in the outside part of the tumor. Additionally, Castro’s opinion that the accident caused the hemorrhage in the neurofibroma was buttressed by the fact that while operating on the tumor it burst, indicating that it was under pressure. Furthermore, the blood which came out of the tumor was a week or two old. Thus, Castro formed the belief that the blood in the tumor was the primary cause of Heather’s medical problems. Following the operation, Castro expected that Heather would not suffer any additional threat of spinal cord compression. However, he did feel that an unstable condition might develop between Heather’s fourth and fifth vertebrae.

On January 20, 1987, Castro noticed angulation of the vertebrae at C5 to C6, which he believed was caused by the injuries Heather sustained during the accident. While Castro believed that Heather might have developed angulation or instability at the C4 to C5 level as a result of the surgery to remove the tumor, he did not expect a problem at the level of C5 to C6.

Subsequently, Heather’s condition became worse. There was an increase in the progression of the angulation indicating increased instability in the area. Noting that prior to the accident Heather had no complaints of any symptoms related to the neurofibroma, Castro opined that the ligaments at C5 and C6 had been stretched beyond their normal boundaries by the accident. Consequently, on May 25, 1987, Castro performed an anterior-cervical fusion on Heather’s spine to correct the situation and prevent worsening of the condition.

Dr. Toras Kochno, a physician specializing in physical rehabilitation, began treating Heather on July 10, 1989. At that time, Heather complained of pain at the base of her neck accompanied by headaches, and pain in her lower back and buttocks which radiated down her legs. Kochno opined that Heather’s problems with her cervical spine, lumbar spine, buttocks, sacroiliac joints, shoulders and trapezial were all a direct result of the accident and that the scarring that occurred from the neuroma was the least contributing factor to the pain that Heather was then experiencing and shall continue to experience for the rest of her life.

Today, Heather’s ability to do household chores and be gainfully employed is severely reduced as a result of her health problems.

Dr. Hilliard Slavick, a physician board-certified in adult neurology, testified as an expert witness on behalf of Heather. Slavick noted that Heather was totally asymptomatic before the accident which indicated to him that the neurofibroma was not exerting any pressure on the spinal cord itself. It was Slavick’s opinion that the tumor or its blood supply could be traumatized by an accident such as the one suffered by Heather. Thus, according to Slavick, Heather may never have needed to have surgery were it not for the accident. Slavick further noted that many individuals live their entire lives with the type of lesion that Heather had without developing symptoms or the need for surgery. Slavick further testified that following the first surgery, instability of the cervical spine could have been a result of the first surgery or the accident, at which time Heather could have suffered a flexion extension injury at the cervical spine which caused stretching of the ligaments that hold the bony structures in place.

Dr. Auplay Loughran, a board-certified orthopedic surgeon, testified as an expert witness on behalf of Avis. Loughran stated that he believed that the reason for the first surgery was the neurofibroma itself. Loughran further testified that the sole cause of the instability and angulation necessitating the second operation was the bone erosion caused by the neurofibroma and the loss of bone in the first operation.

Dr. Marshall Matz, a board-certified neurosurgeon, testified as an expert witness for Avis. Matz based his testimony upon X rays taken before the first surgery and X rays taken afterwards. Matz stated that the lack of angulation revealed by X rays taken before the first surgery and the angulation shown by the X rays taken afterwards indicated to him that such angulation and instability were caused by the first operation, not the accident.

Subsequently, the jury returned a verdict for $1,495,000 for Heather against both Murray and Avis. The jury answered “yes” to the special interrogatory asking if Murray was within the scope of his employment at the time of the accident.

Opinion

I

At the outset, we note that Murray’s brief does not conform to the requisites of Supreme Court Rule 342(a) (134 Ill. 2d R. 342(a)) in that it does not contain an appendix. Compounding this error is the fact that the statement of facts contained in Murray’s brief is devoid of any citation to the record as is mandated by Supreme Court Rule 341(e)(6). (134 Ill. 2d R. 341(e)(6).) Thus, it is next to impossible for this court to assess whether the facts as presented by Murray are an accurate and fair portrayal of the events in this case.

“Adherence to Supreme Court Rules 341(e) and 342(a) is not an inconsequential matter. The purpose of the rules is to require parties to proceedings before a reviewing court to present clear and orderly arguments so that the court may properly ascertain and dispose of the issues involved. [Citation.] Where an appellant’s brief fails to comply with the rules, this court has inherent authority to dismiss the appeal for noncompliance with its rules.” (Zadrozny v. City Colleges (1991), 220 Ill. App. 3d 290, 292-93, 581 N.E.2d 44.) Accordingly, Murray’s appeal is dismissed for failure to comply with Supreme Court Rules 341(e)(6) and 342(a) and, therefore, we shall restrict our comments to those issues raised by Avis in its appeal.

II

Avis begins its appeal with the argument that the trial court committed reversible error by denying its motion for judgment notwithstanding the verdict.

The standard to be employed by a reviewing court in assessing the propriety of a denial of a motion for judgment notwithstanding the verdict is well established in Illinois. A judgment notwithstanding the verdict ought to be granted only in those cases where all the evidence, when viewed in its aspect most favorable to the nonmovant, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.

Avis contends that the trial court erred in not granting its motion for a judgment notwithstanding the verdict because there was no substantial evidence that Murray was within the scope of his employment for Avis at the time of the accident. Specifically, Avis urges that the statement attributed to Murray by Deputy Norby did not relate to Murray’s destination at the time of the accident and should not be construed as contradicting Murray’s testimony concerning his true destination; Murray’s alleged post-occurrence statement carried no weight because of the circumstances under which it was made; Murray’s testimony established that he was not within the scope of his employment at the time of the accident; and plaintiffs’ circumstantial evidence did not tend to prove that Murray was destined for O’Hare airport at the time of the accident. Thus, according to Avis, it cannot be held liable to Heather under the doctrine of respondeat superior.

It is settled law that the doctrine of respondeat superior applies only when an employee is acting within the scope of his employment and the employee must be acting within the scope of his employment with respect to the occurrence or transaction that gave rise to injury at issue. (Richard v. Illinois Bell Telephone Co. (1978), 66 Ill. App. 3d 825, 844, 383 N.E.2d 1242.) Section 229 of the Restatement (Second) of Agency (1958) sets forth the following factors to be considered in determining scope of employment:

“§229. Kind of Conduct within Scope of Employment.
(1) To be within the scope of employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized.
(2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters are to be considered:
(a) whether or not the act is one commonly done by such servants;
(b) the time, place and purpose of the act;
(c) the previous relations between the master and the servant;
(d) the extent to which the business of the master is apportioned between different servants;
(e) whether or not the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant;
(f) whether or not the master has reason to expect that such an act will be done;
(g) the similarity in quality of the act done to the act authorized;
(h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant;
(i) the extent of departure from the normal method of accomplishing an authorized result; and
(j) whether or not the act is seriously criminal.” Restatement (Second) of Agency §229 (1958).

After a careful review of the record, applying the Pedrick standard in tandem with section 229 of the Restatement (Second) of Agency (1958), we conclude that the trial court correctly denied Avis’ motion for judgment notwithstanding the verdict.

From our review of the evidence presented at trial, we believe there was ample evidence from which the jury could conclude that Murray was acting within the scope of his employment. The jury chose to accept Heather’s theory of the case. While Avis’ theory is quite different, it is within the province of the jury to determine the credibility of witnesses, weigh evidence, and resolve conflicts. (Bass v. Washington-Kinney Co. (1983), 119 Ill. App. 3d 713, 728, 457 N.E.2d 85.) We shall not permit Avis to retry the facts of the case in this forum. Therefore, we cannot conclude, as Avis urges, that the evidence, when viewed in a light most favorable to Heather, so overwhelmingly indicated that Murray was not acting within the scope of his employment such that the verdict in this case cannot stand.

III

Similarly, we reject Avis’ next contention that the trial court erred in not granting Avis a new trial because the verdict was against the manifest weight of evidence. We hold, for the reasons stated above, that the trial court properly denied Avis’ motion for a new trial as there was more than sufficient evidence to conclude that Murray was acting within the scope of his employment at the time of the accident. Tedrowe v. Burlington Northern, Inc. (1987), 158 Ill. App. 3d 438, 511 N.E.2d 798.

IV

Avis’ next contention is that it should be granted a new trial as to the issue of damages because the trial court erred in allowing Heather’s expert to testify regarding a previously undisclosed opinion concerning her need for further surgery. Thus, Avis asserts that the trial court failed to follow the mandate of Supreme Court Rule 220(d), which provides:

“(d) Scope of Testimony. To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings through interrogatories, deposition or requests to produce, his direct testimony may not be inconsistent with nor go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings. However, he shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings.” 134 Ill. 2d R. 220(d).

Rule 220 was designed to remove gamesmanship from litigation by removing from it the element of surprise. (Fogarty v. Parichy Roofing Co. (1988), 175 Ill. App. 3d 530, 529 N.E.2d 1055.) The rule’s function is to allow litigants to learn and rely upon the nature of the opinions of their opponent’s experts. Bart v. Union Oil Co. (1989), 185 Ill. App. 3d 64, 540 N.E.2d 770; 134 Ill. 2d R. 220, Committee Comments.

In support of its contention that the trial court should have barred the testimony of Castro, Avis submits that the decision of Huelsmann v. Berkowitz (1991), 210 Ill. App. 3d 806, 568 N.E.2d 1373, is controlling of the case sub judice. We cannot agree.

In Huelsmann, a medical malpractice case, the plaintiff submitted an interrogatory which asked the defendant to provide him with the conclusions and opinions and bases therefor of each expert the defendant expected to call at trial. The defendant’s answer merely

stated that based upon the expert’s education and training and medical authority, it was the expert’s opinion that the care and treatment rendered by the defendant doctor was appropriate and did not deviate from accepted medical standards.

The Huelsmann court ruled that the trial court there did not abuse its discretion in barring the testimony of the defendant’s expert. The court found the defendant had effectively excluded the expert’s opinion and its basis because the answer was little more than a “blanket statement that defendant’s expert would testify favorably for the defendant.” (Huelsmann, 210 Ill. App. 3d at 810.) Here, plaintiffs’ answer to Avis’ question is easily distinguishable from the one at issue in Huelsmann. In this case, Avis was provided with Slavick’s report, which stated that he based his opinion on his examination of Heather and her medical records. His report discusses both of Castro’s operations on Heather, as well as noting the accident to be the cause of Heather’s injuries. Moreover, during Slavick’s deposition he agreed that the first surgery led to instability and excessive angulation necessitating a second surgery. In fact, it was Avis’ counsel who, while given ample opportunity to do so, failed to follow up at Slavick’s deposition on whether the first surgery was the sole cause of the second surgery, whether there were other causes for the second surgery, or whether the accident had any relation to the second surgery. In addition, Avis knew that Castro had prior to Slavick’s deposition been deposed and expressed his opinion that the accident was the cause of both operations. Thus, Avis was provided with far more information here than was the defendant in Huelsmann. Therefore, we find the trial court did not err in refusing to bar Slavick’s testimony.

V

Still to be considered is Avis’ assertion that the trial court abused its discretion by compelling Avis to respond to an untimely Supreme Court Rule 237 (134 Ill. 2d R. 237) notice to produce at trial, thereby denying Avis a fair trial. It is Avis’ position that what plaintiffs’ labeled a Rule 237 request for production was nothing more than an improper, belated request for production that should have been served upon Avis within the context of discovery.

Avis relies solely upon the holding of Campen v. Executive House Hotel, Inc. (1982), 105 Ill. App. 3d 576, 434 N.E.2d 511, as being dispositive of this issue. However, we believe that Campen is not analogous to the facts in the case at bar.

In Campen, the court correctly found that the trial court properly denied defendant’s request for an order compelling the plaintiff to comply with its notice to produce documents as the defendant could have obtained, through the diligent use of discovery, the documents it requested. The Campen court focused on the fact that the notice was filed the day before trial commenced and that despite two pretrial conferences with the trial court, the notice was not brought until the eve of trial. Unlike the situation in Campen, where the defendant made a series of new and onerous requests upon the plaintiff, plaintiffs in this case did not seek any new information. Instead, plaintiffs sought only production of witnesses and documents they intended to use at trial that were within the control of Avis and were the subject of previous discovery. Thus, plaintiffs’ request was within the contemplated use of Rule 237. Accordingly, we find that the trial court did not abuse its discretion in compelling Avis to respond to plaintiffs Rule 237 request.

VI

Avis next submits that the trial court abused its discretion by allowing Walford to testify to the speed of impact of the car driven by Murray. It is Avis’ assertion that: (1) Walford lacked the requisite expertise to determine Murray’s speed at impact based solely upon the damage to Avis’ car; (2) accident reconstruction testimony is inadmissible to contradict eyewitness testimony unless it is based upon expertise beyond that possessed by the average juror; and (3) Avis was prejudiced by the admission of Walford’s opinion. We agree with Avis that the trial court abused its discretion in allowing into evidence Walford’s testimony.

Avis directs our attention to the decision in Dauksch v. Chamness (1973), 11 Ill. App. 3d 346, 296 N.E.2d 592. In that case, the court held that a State trooper with 16 years’ experience, who had investigated numerous accidents, was not qualified to testify as an expert witness. The Dauksch court focused on the fact that the jury, as the trier of fact, could draw its own conclusion as to the point of impact in the accident at issue in the case without need of the trooper’s opinion. Moreover, the court noted “that the trooper’s opinion was not based upon any special knowledge and application of principles of physics, engineering or other sciences beyond the ken of the average juror.” (Dauksch, 11 Ill. App. 3d at 353.) This is what occurred in the case at hand. While Walford was certainly qualified to testify about the situation he found upon his arrival at the accident scene, he could not lend any specialized expertise to the jury’s deliberations because his opinion was not based on any scientific knowledge or training. Thus, admission of Walford’s opinion as to the speed at impact when the car driven by Murray rear-ended plaintiffs was in error.

Having found that the admission of Walford’s opinion was in error, we must now examine whether such error requires reversal of the judgment. Murray testified that he was traveling at approximately thirty to 35 miles per hour as he approached the intersection of Gary Avenue and Lake Street. Thus, Walford’s testimony is not inconsistent with Murray’s. Accordingly, we believe Walford’s testimony was merely cumulative and, therefore, the trial court’s action was harmless error that does not warrant reversal of the judgment. Dauksch, 11 Ill. App. 3d 346, 296 N.E.2d 592.

VII

Finally, Avis urges that the trial court erred in restricting its cross-examination of Heather with respect to her reasons for returning to work. However, this issue is not cognizable on appeal as Avis failed to make an offer of proof for this line of inquiry. “It is well established that an offer of proof is necessary, where the trial court has excluded the testimony of a witness on a particular matter, to preserve the question for review.” (Tarshes v. Lake Shore Harley Davidson (1988), 171 Ill. App. 3d 143, 149, 524 N.E.2d 1136.) Thus, Avis has waived this issue by its failure to make the requisite offer of proof.

For the reasons stated above, the judgment of the circuit court of Cook County in Avis’ appeal, No. 1 — 92—0220, is affirmed, and the appeal of Murray, No. 1 — 92—0221, is dismissed.

No. 1 — 92—0220, Affirmed.

No. 1 — 92—0221, Dismissed.

CERDA and GREIMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HOFFMAN

license: Public Domain

text:
    MICHAEL REMBIS, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—91—4065
    Opinion filed June 24, 1993.
    Rehearing denied July 22, 1993.

      William J. Harte, Ltd., of Chicago (William J. Harte and Joan M. Man-nix, of counsel), for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Michael A. Pollard, Richard B. Foster, and Matthew W. Ferguson, of counsel), for appellees.
   JUSTICE HOFFMAN

delivered the opinion of the court:

The plaintiff, Michael Rembis, filed a three-count complaint in the circuit court of Cook County against several defendants; however, he only obtained service on the Board of Trustees of the University of Illinois (Board of Trustees) and Greg Cales. Both the Board of Trustees and Cales filed motions pursuant to section 2 — 619(a)(1) of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2— 619(a)(1)) challenging the subject matter jurisdiction of the circuit court. The trial court granted their motions, dismissed the plaintiff’s action against them, and, pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), found that there was no just reason to delay enforcement or appeal. The plaintiff appealed the dismissal order and, for the reasons which follow, we affirm the trial court.

Because the plaintiff’s action was involuntarily dismissed pursuant to section 2 — 619, the events leading up to the filing of the complaint are taken exclusively from its allegations. For the trial court’s purposes in ruling on the motions and for our purposes on appeal, the facts as alleged in the complaint must be taken as true. Island Lake Water Co. v. La Salle Development Corp. (1986), 143 Ill. App. 3d 310, 493 N.E.2d 44; Austin View Civic Association v. City of Palos Heights (1980), 85 Ill. App. 3d 89, 405 N.E.2d 1256.

In his complaint, the plaintiff alleged that he was a student at the University of Illinois at the Urbana-Champaign campus. On February 9, 1989, he was playing in an intramural ice hockey match conducted by the university. During the game, he was “checked” by another player causing his head to strike the sideboard of the rink. As a result of his injuries, the plaintiff is a quadriplegic.

On the date of the plaintiff’s injury, Cales and the other individual defendants were employees of the university; Cales was the director of open intramural sports.

Count I of the complaint charges wilful and wanton misconduct on the part of several university employees. Specifically as to Cales, the plaintiff alleged he wilfully and wantonly failed to properly train and supervise employees and failed to warn the plaintiff of the risks to which he was exposed. The plaintiff also alleged that Cales wilfully and wantonly supervised and administered the hockey league. Further, the count charges the Board of Trustees with vicarious liability for the acts and omissions of its employees, including Cales.

Count II of the complaint charges other university employees with wilful and wanton misconduct and negligence for the medical care that they rendered to the plaintiff after his injury.

Count III alleges wrongful conduct on the part of the Board of Trustees in hiring certain employees, failing to properly train and supervise, providing plaintiff with medical care that increased his risk of injury, and exhibiting a conscious disregard for the safety of individuals injured while participating in the hockey league. Additionally, because the plaintiff incorporated the allegations of count II, count III can be read to charge the Board of Trustees with vicarious liability for the acts and omissions of its employees.

Article XIII, section 4, of the Illinois Constitution provides that “[e]xcept as the General Assembly may provide by law, sovereign immunity in this State is abolished.” (Ill. Const. 1970, art. XIII, §4.) Acting under its constitutional grant of authority, the legislature has enacted several statutes which impact upon the resolution of this case. In the University of Illinois Act, which created the Board of Trustees, the legislature has provided that “any suit against the Board based upon a claim sounding in tort must be filed in the Court of Claims.” (Ill. Rev. Stat. 1991, ch. 144, par. 22.) The Court of Claims Act provides that the Court of Claims shall have exclusive jurisdiction to hear and determine all tort claims against the Board of Trustees. Ill. Rev. Stat. 1991, ch. 37, par. 439.8(d).

Whether a particular action is, in fact, against the Board of Trustees and must be brought in the Court of Claims depends upon the issues involved and the relief sought, not on the formal identification of the parties. (See Herget National Bank v. Kenney (1985), 105 Ill. 2d 405, 475 N.E.2d 863.) Unless an agent of the Board of Trustees violates the law or exceeds his authority or if his duty to the plaintiff arises independent of his employment, the Court of Claims has exclusive jurisdiction over a tort claim against the agent for acts committed within his normal and official duties. See Kilcoyne v. Paelmo (1990), 204 Ill. App. 3d 139, 562 N.E.2d 231; Robb v. Sutton (1986), 147 Ill. App. 3d 710, 498 N.E.2d 267.

The plaintiff does not allege, that Cales violated any law and the allegations do not support an inference that Gales’ duty to the plaintiff arose independently of his function as an employee of the Board of Trustees. Even in the face of this circumstance, the plaintiff argues that the Court of Claims does not have exclusive jurisdiction. The plaintiff contends that both the Board of Trustees and its employees are amenable to suit in the circuit court when the theory of liability is predicated upon a claim of wilful and wanton misconduct. We disagree.

The primary rule of statutory construction is to ascertain and give effect to the legislature’s intent. (County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 485 N.E.2d 1076.) To determine the intent of the legislature, courts must first consider the language of the statute itself. (Du Page, 109 Ill. 2d 143, 485 N.E.2d 1076.) When the statutory language is clear and unambiguous, the court must enforce the law as enacted without using other aids to construction. Du Page, 109 Ill. 2d 143, 485 N.E.2d 1076.

We find that the language of the Court of Claims Act (Ill. Rev. Stat. 1991, ch. 37, par. 439.8(d)) and the University of Illinois Act (Ill. Rev. Stat. 1991, ch. 144, par. 22) is clear and unambiguous. These statutes vest exclusive jurisdiction in the Court of Claims for any and all tort claims against the Board of Trustees. The statutes do not distinguish between claims grounded in negligence and those grounded in wilful and wanton misconduct. And, as the plaintiff candidly admits, no reported case draws such a distinction. (See Campbell v. White (1991), 207 Ill. App. 3d 541, 566 N.E.2d 47; Robb, 147 Ill. App. 3d 710, 498 N.E.2d 267.) We find no reason to draw such a distinction here. The plaintiff’s reliance upon the language of the State Employee Indemnification Act (Ill. Rev. Stat. 1991, ch. 127, par. 1300 et seq.) to justify a distinction is a theory that was rejected in Healy v. Vaupel (1990), 133 Ill. 2d 295, 549 N.E.2d 1240. And for the same reasons, we find no additional merit in the argument grounded in the provisions of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1991, ch. 85, par. 1 — 101 et seq).

Lastly, we reject the proposition that wilful and wanton misconduct on the part of an employee of the Board of Trustees is, by its very nature, action outside the scope of the employee’s authority. Campbell, 207 Ill. App. 3d 541, 566 N.E.2d 47.

Whether characterized as negligence or wilful and wanton misconduct, it is clear from the allegations of the plaintiff’s complaint that the relationship between the plaintiff and Cales had no source outside of Cales’ employment. His alleged acts and omissions were committed in the discharge of his official duties and not for some unrelated purpose. Whatever duty Cales owed to the plaintiff under the circumstances of this case existed because of the plaintiff’s status as a student and his participation in a university-sponsored sporting event. (See Healy, 133 Ill. 2d 295, 549 N.E.2d 1240.) As such, any tort claim for Gales’ breach of that duty must be brought in the Court of Claims regardless of the theory of recovery.

Having decided that the Court of Claims has exclusive jurisdiction over the plaintiff’s claims without regard to the tort theory upon which those claims rest, we need not address the issue of whether the allegations of the complaint were sufficient to support causes of action for wilful and wanton misconduct.

For the foregoing reasons, the order of the circuit court of Cook County dismissing the plaintiff’s complaint against the Board of Trustees and Cales for lack of subject matter jurisdiction is affirmed.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


author: JUSTICE CAHILL

text:
    DIANE C. RENZI, Plaintiff-Appellee, v. HELEN MORRISON, Defendant-Appellant.
    First District (4th Division)
    No. 1—92—2422
    Opinion filed June 24, 1993.

      Paul L. Price and Mark D. Roth, both of Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers, of counsel), for appellant.
    Baskin, Server, Berke, Weinstein & Spiro, of Chicago (Burton I. Weinstein, John R. Malkinson, and Seth R. Halpern, of counsel), for appellee.
   JUSTICE CAHILL

delivered the opinion of the court:

This case involves two competing interests: the need to reach the truth in a judicial proceeding and a psychiatric patient’s right to privacy.

Plaintiff, Diane Renzi, filed an action for damages against defendant, Helen Morrison, M.D. She alleged that Morrison violated the Mental Health and Developmental Disabilities Confidentiality Act (Mental Health Act) (Ill. Rev. Stat. 1983, ch. 911/2, par. 801 et seq.), when she voluntarily disclosed confidential information at a court proceeding. Morrison moved to dismiss the complaint on the grounds that common law witness immunity shielded her testimony. The trial court denied Morrison’s motion and ruled that common law witness immunity does not protect a witness who volunteers information privileged under the Mental Health Act. The trial court certified the question under Supreme Court Rule 308 (134 Ill. 2d R. 308), and we granted leave to appeal. We affirm.

Renzi alleges in her complaint that in July and August of 1983 she was a patient of Morrison, a board-certified psychiatrist. Morrison evaluated Renzi, administered psychological tests, and counseled her about her marriage.

In August 1983 Renzi’s husband filed a petition for dissolution of marriage and an emergency petition for temporary custody of their two-year-old daughter. Renzi learned that Morrison had discussed her psychological tests and evaluations with her husband in relation to the dissolution and custody proceedings. Renzi then wrote Morrison and stated she intended to exercise her right pursuant to section 10 of the Mental Health Act to prevent disclosure of any confidential communications. Section 10 provides:

“(a) Except as provided herein, in any civil, criminal, administrative, or legislative proceeding, or in any proceeding preliminary thereto, a recipient, and a therapist on behalf and in the interest of a recipient, has the privilege to refuse to disclose and to prevent the disclosure of the recipient’s record or communications.
(1) Records and communications may be disclosed in a civil, criminal or administrative proceeding *** if and only to the extent the court in which the proceedings have been brought, *** finds, after in camera examination of testimony or other evidence, that it is relevant, probative, not unduly prejudicial or inflammatory, and otherwise clearly admissible; that other satisfactory evidence is demonstrably unsatisfactory as evidence of the facts sought to be established by such evidence; and that disclosure is more important to the interests of substantial justice than protection from injury to the therapist-recipient relationship or to the recipient or other whom disclosure is likely to harm.” Ill. Rev. Stat. 1983, ch. 911/2, par. 810.

Morrison voluntarily appeared at the custody hearing and offered to testify for Renzi’s husband. Renzi objected that Morrison’s testimony referred to privileged information and was confidential. The trial judge overruled the objection and stated, “I’m going to let her testify.” Morrison then revealed Renzi’s communications, testified to the results of the psychological tests, and offered her opinion of Renzi’s emotional health. Based on this testimony, which “tipped the balance of the scale,” the judge awarded temporary custody of the child to the husband. Renzi then filed this action against Morrison.

Defendant argues that this court must interpret the Mental Health Act consistently with common law witness immunity because, she alleges, the Act does not specifically abolish the common law doctrine. See Berlin v. Nathan (1978), 64 Ill. App. 3d 940, 956, 381 N.E.2d 1367, 1378 (“If a statute is enacted which covers an area formerly covered by common law, such statute must be construed as adopting common law unless there is clear and specific language showing that change in the common law was intended by the legislature”).

The Mental Health Act provides a psychiatric patient with the privilege to prevent disclosure of communications made to a therapist. Illinois common law provides that a witness’ testimony at a judicial proceeding is privileged if relevant. (Libco Corp. v. Adams (1982), 100 Ill. App. 3d 314, 426 N.E.2d 1130.) The legislature recognized that the right to witness immunity must be balanced with the right to privileged communication between doctor and patient. The Mental Health Act allows for circumstances where the privilege which protects a patient’s communications to a doctor must give way. Section 10 authorizes disclosure of privileged communications where a court examines testimony in camera and determines it relevant, admissible, and more important to the interest of justice than a patient’s right to confidentiality. As a further safeguard, no record or communication is relevant “unless the party seeking disclosure of the communication clearly establishes in the trial court a compelling need for its production.” The Act requires a showing that a therapist’s testimony is relevant, admissible, and more important to the interests of justice than the patient’s privilege. Once this showing has been made, witness testimony is invested with traditional common law privilege.

The statute clearly indicates the legislature intended to modify absolute common law witness immunity in order to provide a remedy of damages against persons who violate the act. Section 15 states, “Any person aggrieved by a violation of this Act may sue for damages ***.” (Ill. Rev. Stat. 1983, ch. 911/2, par. 815.) Common law absolute immunity for witnesses would make this language a nullity.

Defendant then cites Bond v. Pecaut (N.D. Ill. 1983), 561 F. Supp. 1037, aff'd (7th Cir. 1984), 734 F.2d 18, and argues that the court in this case concluded that the common law doctrine of absolute witness immunity would protect a witness who disclosed confidential communications under the Mental Health Act in a judicial proceeding.

In Bond the plaintiff’s husband filed a petition for custody of their son, and the court appointed the defendant, a psychologist, to evaluate plaintiff and her husband. The psychologist wrote a letter to the court which discussed plaintiff’s emotional health. The plaintiff filed an action for damages against the psychologist on the grounds that the letter was defamatory and constituted a tortious invasion of her privacy. The reviewing court held that the communications in the letter were privileged because they were relevant to the pending legal proceedings. The plaintiff also moved for leave of court to file an additional count to allege unlawful disclosure of communications in violation of the Mental Health Act. The court denied the motion and held that the same witness privilege defense which applied to the defamation count would apply to an alleged violation of the Mental Health Act. The court explained, “[Defendant's function was not to treat plaintiff, but to advise the court.” Bond, 561 F. Supp. at 1041-42.

The result in Bond is restricted to the facts, and the facts are distinguishable from those in the case before us. In this case the court did not appoint Morrison to evaluate Renzi. The court did not subpoena Morrison to appear or order her to testify. She appeared voluntarily and offered to testify for Renzi’s husband. Morrison’s function was to treat Renzi, not to advise the court. We find the result in Bond does not control our interpretation of the Mental Health Act.

Affirmed.

JOHNSON and HOFFMAN, JJ., concur.


text:
    MELROSE PARK NATIONAL BANK, Trustee, et al., Plaintiffs-Appellees, v. ROBERT O. CARR et al., Defendants-Appellants.
    First District (5th Division)
    No. 1—91—0007
    Opinion filed June 25, 1993.

      Seyfarth, Shaw, Fairweather & Geraldson, of Chicago (Cynthia G. Swiger, of counsel), for appellants.
    Joseph E. Fitzgerald, of Hinsdale, for appellees.
   PRESIDING JUSTICE GORDON

delivered the opinion of the court:

Defendants James Bambrick and Bambrick & Bambrick (hereinafter collectively defendant or Bambrick) appeal from an order of the circuit court, in which the court found that defendant had breached an escrow agreement and awarded plaintiff Raymond Massey damages in the amount of $45,000. For the reasons set forth below, we affirm.

Facts

Plaintiff Raymond Massey was the beneficial owner of trust No. 2541 at Melrose Park National Bank, which held legal title to a single-family home located in Lemont, Illinois. In November of 1983 Massey entered into a real estate sales contract for the sale of this home under articles of agreement for deed with defendants Robert 0. Carr and Jill A. Carr. The purchase price for the home was $230,000. The contract provided for a down payment of $50,000, the remainder of the purchase price to be financed by Massey at the rate of $5,000 per month beginning on March 1, 1984. Pursuant to the contract, the Carrs deposited $5,000 as earnest money with Adams & Meyers Realtors, the real estate broker, and also executed a $45,000 judgment note payable to “Adams & Meyers Realtors agent for Raymond Massey” as additional earnest money which was redeemable at closing. The sales contract also provided that in the event the contract was terminated due to the fault of the buyers, the earnest money would be retained by the seller. This $45,000 represented the balance due as down payment under the articles of agreement for deed. Under the articles, if, after closing, the buyers defaulted by failing to pay any installment when due, the seller was given the option of retaining all sums paid by the buyers as liquidated damages. Closing was scheduled for February 1,1984.

In mid-December 1983, the Carrs requested preclosing possession of the home. Plaintiff, however, was reluctant to allow this, as his inability to obtain financial information on the Carrs caused him to feel somewhat insecure about their ability to complete the transaction. To allay these fears, plaintiff and his attorney suggested to the Carrs that the $45,000 note held by Adams & Meyers be redeemed, with the cash to be held by the realtors. The Carrs rejected this proposal. Eventually it was agreed that $45,000 in cashier’s checks would be held by the Carrs’ attorney, Bambrick. Receipt of the cashier’s checks in the amount of $45,000 was acknowledged by Bambrick in a letter to plaintiff’s attorney Casper dated December 16, 1983: “This will confirm my earlier telephone conversation with you that I am holding the sum of $45,000.00 in cashier’s checks at my office regarding the proposed agreement for deed between Raymond Massey and Robert Carr at 16 Horseshoe Lane, Lemont, Illinois.” On December 16, 1983, plaintiff allowed the Carrs to move into the house, and the Carrs paid plaintiff $4,000 for rent through February 1, 1984.

The scheduled February 1, 1984, closing did not occur because the Carrs were unable to attend. The closing was rescheduled for February 6, 1984, but again the transaction did not close. The closing was again rescheduled, this time for February 9,1984.

On February 8, 1984, the Carrs’ attorney, Bambrick, informed plaintiff’s attorney that the Carrs would be unable to close on the 9th because they did not have the money required for the closing. Bambrick then informed plaintiff’s attorney that he had returned to the Carrs the $45,000 in cashier’s checks which the Carrs had given him on December 16,1983.

Subsequently, plaintiff granted three extensions to the Carrs to allow them time in which to close, the first until March 1, 1984, and a second extension to April 1, 1984. On April 2, 1984, Massey and the Carrs executed an amendment to their real estate sales contract which extended the time of closing to June 1, 1984, or if closing did not occur by that date, to December 31,1984.

By the fall of 1984, the Carrs stopped making rental payments but refused to vacate the house. In February 1985, plaintiff filed a notice of forfeiture and demand for possession. The property eventually went into foreclosure and was sold by sheriff’s sale for $152,882.98 in June 1986. Plaintiff subsequently redeemed the property, and the court vacated and set aside the judgment of foreclosure.

This action was filed by plaintiff in March 1985, against the Carrs, the realtors, Adams & Meyers, and against Bambrick. A default judgment was entered against the Carrs on February 29, 1988, in the amount of $101,024.99, which remains uncollected because the whereabouts of the Carrs are unknown. The realtors were dismissed from the action after tendering to the court the $5,000, plus interest, which they had held as earnest money. The only remaining count, and the subject of this appeal, is the one against Bambrick based upon his unilateral act of returning the $45,000 to the Carrs. In the complaint, plaintiff sought an order requiring Bambrick to turn over the fund held in escrow as liquidated damages, or in the event that the escrow funds had been improperly released, a judgment against Bambrick in the amount of $45,000.

Following a trial held in January 1990, the trial court entered a memorandum of opinion on February 27, 1990, in which the court found that there was an escrow agreement between the parties which Bambrick breached by returning the money to the Carrs. In reaching this conclusion, the court stated that it relied on Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 74, 199 N.E.2d 769, for the proposition that liability can arise from the negligent performance of a voluntary undertaking. Although finding that plaintiff was damaged by the breach, the court stated that it “has no information on which to base the amount.” No judgment order was entered at this time, and the memorandum of opinion did not provide for the award of damages to the plaintiff.

On March 27, 1990, plaintiff filed a “Motion for Rehearing or in the Alternative for a Retrial on the Issue of Damages.” In that motion, plaintiff requested “an order modifying the judgment of February 27, 1990, so as to reflect the awarding of [$45,000] as damages to the Plaintiff, or in the alternative for a Rehearing or Retrial as to the issue of damages.” On October 31, 1990, the trial court issued a second memorandum of opinion, which provided:

“The Court issued a Memorandum on February 27, 1990 in this matter, but did not assess damages due to some confusion regarding the amount asked for.
At all times since the trial, the Court was aware the forty five thousand ($45,000.00) amount was due to the plaintiff.
The memorandum of October [sic] 27, 1990, is modified to reflect the awarding of forty five thousand ($45,000.00) in damages to the plaintiff.”

On November 30, 1990, the trial court entered a judgment order in the amount of $45,000 in favor of the plaintiff. Defendant filed his notice of appeal from the November 30, 1990, judgment on December 27, 1990.

Opinion

On appeal, defendant raises numerous issues. He contends that: (1) it was error for the trial court to find that an escrow agreement existed between the parties; (2) if an escrow agreement existed, it was error for the trial court to find that the agreement was enforceable under the Statute of Frauds (Ill. Rev. Stat. 1991, ch. 59, par. 2); (3) if an escrow agreement existed, Massey waived the condition precedent requiring the deposit of $45,000 with Bambrick; (4) it was against the manifest weight of the evidence that Massey suffered any damages as a result of Bambrick’s alleged breach; and (5) the trial court erred in considering Massey’s post-trial motion because (a) the motion was nothing more than a notice of motion and therefore insufficient to toll the statute for filing a notice of appeal, and (b) Massey was not entitled to present evidence pursuant to section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2— 1203).

We shall first address defendant’s contention that the trial court erred in finding that an escrow agreement existed between the parties. He argues that plaintiff has failed to prove that there was an agreement between Massey and the Carrs with respect to an escrow deposit with Bambrick, and that no conditions of delivery were established or communicated or agreed to by Bambrick. In defendant’s view, the court here went beyond interpretation of ambiguous terms of an escrow agreement, instead creating essential terms.

A valid escrow agreement requires an agreement between a grantor and a grantee as to the conditions of deposit, delivery of the deposited item to the escrowee, and communication of the agreed upon conditions to the escrowee. (Johansson v. United States (5th Cir. 1964), 336 F.2d 809.) Questions involving the operation of an escrow may be resolved by consideration of the escrow agreement in conjunction with the underlying contract. (First National Bank v. Lachenmyer (1985), 131 Ill. App. 3d 914, 476 N.E.2d 755; Estate of Reinhold v. Mansfield (1980), 90 Ill. App. 3d 224, 412 N.E.2d 1146.) Whether an agreement exists and the construction to be given to ambiguous terms are questions of fact which will be upheld on review unless against the manifest weight of the evidence. (First National Bank v. Lachenmyer, 131 Ill. App. 3d 914, 476 N.E.2d 755; John Allan Co. v. Neuendorf (1978), 60 Ill. App. 3d 559, 377 N.E.2d 365; see also Howard A. Koop & Associates v. K P K Corp. (1983), 119 Ill. App. 3d 391, 457 N.E.2d 66.) For the judgment to be against the manifest weight, it must appear that conclusions opposite to those reached by the trier of fact are clearly evident. (John Allan Co. v. Neuendorf, 60 Ill. App. 3d 559, 377 N.E.2d 365.) From our review of the record, we cannot say that the conclusions reached by the trial court are against the manifest weight of the evidence.

The trial court found that there was an escrow agreement between the parties. As stated in the court’s memorandum of opinion, this finding was based upon several facts revealed at trial. Bambrick was an attorney who, according to his own testimony, closed approximately 300 real estate deals per year. Bambrick was asked to “hold” $45,000 at his office regarding the proposed real estate deal. He acknowledged in his letter to Massey’s attorney that he was “holding the sum of $45,000.00 in cashier’s checks at my office regarding the proposed agreement for deed” between Massey and the Carrs.' From these facts, the trial court concluded that “[a] reasonable person would say ‘For what purpose?’ and the reasonable answer would be ‘as an escrow for the agreement deed.’ ” The trial court’s conclusion is not against the manifest weight of the evidence.

We cannot agree with defendant’s contention that he had no obligation to hold the cashier’s checks for any definite period of time and could have returned the checks to the Carrs the day after he received them. Such an interpretation would be inconsistent with plaintiff’s requiring the deposit of the money as an assurance that the Carrs would be able to close the transaction in February. Defendant’s explanation would render the arrangement meaningless as a device for protecting plaintiff’s interest under the real estate contract. (See McBride v. Commercial Bank (1981), 101 Ill. App. 3d 760, 764-65, 428 N.E.2d 739 (where appellate court “totally rejects” trial court’s construction of escrow agreement that in absence of instructions as to whom documents were to be delivered, escrowee could deliver documents in its possession to the party of its choice, finding that such a construction “would render it entirely meaningless as a device for protecting plaintiff’s interests under the contract”).) The fact that the Carrs were able to come up with $45,000 in cashier’s checks in December does little to ensure that they would be able to produce that same amount at the closing in February.

In addition to rejecting defendant’s argument that the trial court erred in finding that an escrow agreement existed, we also must reject defendant’s second argument on appeal, namely, that the escrow agreement is unenforceable under the Statute of Frauds. Ill. Rev. Stat. 1991, ch. 59, par. 2.

Although defendant is correct in his contention that under Illinois law, generally a written contract within the Statute of Frauds may not be modified by an oral agreement (see Nelson v. Estes (1987), 154 Ill. App. 3d 937, 507 N.E.2d 530), he is incorrect in his contention that the escrow agreement here constitutes such an oral modification. A writing sufficient to satisfy the Statute of Frauds need not itself be a valid contract, but only evidence of one. (Crum v. Krol (1981), 99 Ill. App. 3d 651, 425 N.E.2d 1081; see also Northmoor Estates, Inc. v. Board of Education of School District No. 108 (1965), 56 Ill. App. 2d 491, 206 N.E.2d 111 (abstract of opinion) (letter from vendor in course of negotiations was sufficient writing of memorandum of promise to take it out of Statute of Frauds).) The December 16, 1983, letter to Massey’s attorney signed by Bambrick which makes reference to the contract between Massey and the Carrs clearly is a writing sufficient to satisfy the Statute of Frauds.

We turn next to defendant’s contention that Massey waived the condition of the $45,000 deposit by his conduct after learning that Bambrick had returned the money to the Carrs. Defendant urges that by extending the closing date several times and by continuing to allow the Carrs to remain in the home for over a year, without demanding that the money be returned, he waived his right to the escrow.

A waiver is an “intentional relinquishment of a known right” (Lempera v. Karner (1979), 79 Ill. App. 3d 221, 223, 398 N.E.2d 224) and may be established by a party’s conduct indicating an intent not to require strict compliance with a contract’s terms. (John Allan Co. v. Neuendorf, 60 Ill. App. 3d 559, 337 N.E.2d 365.) It is an equitable doctrine “designed to prevent the waiving party from ‘lullpng] another into a false assurance that strict compliance with a contractual duty will not be required and then sue for noncompliance.’ ” (Wagner Excello Foods, Inc. v. Fearn International, Inc. (1992), 235 Ill. App. 3d 224, 233, 601 N.E.2d 956, quoting Whalen v. K mart Corp. (1988), 166 Ill. App. 3d 339, 343, 519 N.E.2d 991.) Whether waiver has occurred is a question of fact when the material facts are in dispute or where reasonable minds might differ in the inferences to be drawn from undisputed facts. Wagner Excello Foods, Inc. v. Fearn International, Inc., 235 Ill. App. 3d 224, 601 N.E.2d 956.

The basic facts here are not in dispute. After learning in February that Bambrick had returned the cashiers’ checks to the Carrs, Massey continued to negotiate with the Carrs in an attempt to close the sale of the house. The parties extended the date for closing three times. The Carrs continued to live in the house for almost a year after Bambrick returned the checks to them. Although defendant urges that plaintiff’s conduct and failure to demand a redeposit of the funds or possession of the house constitute waiver, we disagree.

Nothing in plaintiff’s conduct after he learned that Bambrick had returned the escrow funds to the Carrs compels the conclusion that he relinquished his right to enforce the escrow agreement. Plaintiff had no reason to pursue Bambrick until he knew that the transaction with the Carrs would not close. He had not incurred any damages as a result of Bambrick’s return of the checks until it became clear that the Carrs would not be able to complete the sale by tender of $45,000 at closing, either in cash or by redemption of the judgment note held by the real estate broker. Massey testified that “all along” he made demands for redemption of the judgment note. Moreover, nothing that plaintiff did after he learned that Bambrick had returned the checks to the Carrs could be construed as “lulling” Bambrick into believing that plaintiff would not demand strict compliance with the escrow agreement, since by that time, defendant had already breached the agreement. In addition, we cannot fault plaintiff for trying to avoid litigation by attempting to complete the sale of his home. Although the trial court did not make an explicit finding regarding waiver, waiver was argued below, and the court’s judgment in favor of plaintiff obviously implies a finding that no waiver has occurred. Our analysis of the record does not indicate that this implied finding was against the manifest weight of the evidence.

Defendant’s next contention is that the trial court erred in awarding Massey contract damages in the amount of $45,000, when the court’s finding of liability was based on a tort theory of negligence. Defendant also argues that the award was erroneous since there was no evidence presented to establish damages of $45,000 caused by him.

We note initially that the plaintiff brought the action and argued the case under a contract, not a negligence theory. Moreover, defendant’s argument that the court based liability solely on a theory of negligence ignores the court’s explicit finding that an escrow agreement existed between the parties, and that Bambrick breached that agreement. When read as a whole, the trial court’s opinion indicates that, notwithstanding the comments regarding negligence, the court found a breach of contract. We must look, therefore, to the proper measure of damages for breach of contract.

The policy of contract damages is to place the injured party in the monetary position he would have been in had the contract been performed. (Crum v. Krol (1981), 99 Ill. App. 3d 651, 425 N.E.2d 1081.) The measure of damages is the amount which will compensate the party for loss which either fulfillment of the contract would have prevented, or which breach has caused. (LeFevour v. Howorka (1991), 224 Ill. App. 3d 428, 586 N.E.2d 656.) The injured party should not, however, be placed in a better position than he would have been in had the contract not been breached, nor should he be provided a windfall. Wilmette Partners v. Hamel (1992), 230 Ill. App. 3d 248, 594 N.E.2d 1117.

Contrary to defendant’s contention, at trial there was evidence presented regarding the amount of damages. The $45,000 deposited with Bambrick represented the remainder of the earnest money required as down payment for the house. The closing did not occur because the Carrs were unable to come up with that amount at closing. Had Bambrick not returned the cashier’s checks to the Carrs, the closing would presumably have taken place, and Massey would have had the $45,000. Under the contract of purchase, if the Carrs had defaulted on the closing, Massey would have been entitled under the sales contract to retain the earnest money as liquidated damages. Thus, by returning the checks to the Carrs, Bambrick prevented the closing from occurring, and as a result deprived plaintiff of the money which he would have otherwise had. Moreover, under the articles of agreement for deed, had the transaction closed and the Carrs later defaulted, Massey would have been entitled to retain all moneys paid, including the $45,000, as liquidated damages.

As to the court’s statement in its February 27, 1990, memorandum that it had no information on which to base damages, in its November 1, 1990, memorandum, the court stated that it did not assess damages in its initial memorandum, “due to some confusion regarding the amount asked for.” The court went on to say that “[a]t all times since the trial, the Court was aware the [$45,000] amount was due plaintiff.” Thus the court itself explained that its failure to indicate an amount of damages in its initial memorandum was due not to plaintiff’s failure to present evidence but to some initial confusion on the court’s part. As a result, we find no error in the ultimate award of damages here.

We turn now to defendant’s contention that the trial court erred in considering plaintiff’s post-trial motion under section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2— 1203), which provides:

“Motions after judgment in non-jury cases, (a) In all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief.” (Ill. Rev. Stat. 1991, ch. 110, par. 2-1203.)

Defendant contends that the “motion” filed on March 27, 1990, was actually no more than a notice of a motion and thus insufficient to toll the statutory period for filing an appeal. As a result, defendant contends, the trial court’s February 27, 1990, order became final and appealable on March 31, 1990, and the trial court was without jurisdiction to consider plaintiff’s “motion” after that date. Defendant’s second argument is that plaintiff was not entitled to present evidence pursuant to section 2 — 1203. We reject defendant’s arguments because we reject his initial premise that section 2 — 1203 is applicable here.

By its own language, section 2 — 1203 applies to motions filed after a judgment has been entered. No judgment order was entered in this case until November 30, 1990, when the trial court entered judgment in favor of the plaintiff in the amount of $45,000. The memoranda of opinion, filed on February 27, 1990, and October 31, 1990, are not the equivalent of a judgment order. (Stoermer v. Edgar (1984), 104 Ill. 2d 287, 293-94, 472 N.E.2d 400, quoting Freeport Motor Casualty Co. v. Tharp (1950), 406 Ill. 295, 301 (“ ‘Before a pronouncement should be taken as the judgment, it must be clear that it was intended as such and not merely an announcement of the opinion of the court or an indication of what the judgment is going to be.’ It has repeatedly been held that a memorandum signed by the judge cannot be taken or used as the record judgment”); see also Davidson Masonry & Restoration, Inc. v. J.L. Wroan & Sons, Inc. (1971), 2 Ill. App. 3d 524, 275 N.E.2d 654.) The February 27 memorandum does not purport to be a final judgment order, but rather is simply a statement of the court’s findings of facts, .and an announcement of the opinion of the court. The February 27 memorandum, although finding that an agreement existed, that defendant had breached the agreement, and that plaintiff was damaged by that breach, did not assess damages against plaintiff. Until November 30, 1990, there was no enforceable or appealable order or one which could be attacked by a post-trial motion. See Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 538-39, 470 N.E.2d 290 (until judgment order is filed, judgment may “not be attacked by motion, appealed from, or enforced”).

Defendant argues that “the import” of section 2 — 1203 is to allow motions after the trial is complete where a decision has been rendered even though a judgment has not been entered and thus is applicable here. However, the language of the statute and case law clearly indicate that the section is applicable only to motions filed after a written judgment order has been entered, and not to motions filed after a decision has been made but before judgment has been filed. (See Canfield v. Delheimer (1991), 210 Ill. App. 3d 1055, 569 N.E.2d 1260 (motion to reconsider trial court’s order dismissing complaint, filed after judgment made orally but prior to date written judgment order was entered, did not comply with requirements of section 2 — 1203); see also Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 470 N.E.2d 290; Stoermer v. Edgar, 104 Ill. 2d 287, 472 N.E.2d 400; Davidson Masonry v. J.L. Wroan & Sons, Inc., 2 Ill. App. 3d 524, 275 N.E.2d 654.) When plaintiff filed his motion on March 27, 1990, no judgment order had been entered and the trial court still had jurisdiction over the matter and properly considered the motion and, upon such consideration, modified its original opinion.

Although not explicitly argued by defendant, the logical extension of his argument would be that we are without jurisdiction to consider this appeal. If, in fact, the memorandum of opinion filed on February 27, 1990, was a final judgment order, then the time to file a notice of appeal would have expired on March 31, 1990, and defendant’s notice of appeal, filed almost nine months later, on December 27, 1990, would be untimely. As discussed above, however, the trial court’s memorandum of opinion does not constitute a final judgment order, and the time for filing a notice of appeal did not begin to run until November 30, 1990. Thus defendant’s notice of appeal was timely.

Defendant’s argument that the trial court erred in reopening its judgment to consider further evidence pursuant to plaintiff’s motion of March 27, 1990, is not borne out by the record. In addition to the fact that as of that date no judgment had been entered, the record does not indicate that any additional evidence was in fact presented. The record includes no transcript of any hearing at which such evidence was taken. Although defendant in his brief before this court alludes to the possibility that the court may have improperly considered facts in plaintiff’s post-trial briefs as error, again the record fails to show that the brief presented any facts which had not previously been introduced at trial. We also note that the trial court, in its October 30, 1990, memorandum, stated that “at all times since the trial, the Court was aware the [$45,000] amount was due to the plaintiff.”

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

Affirmed.

MURRAY and COUSINS, JJ., concur.

      Prior to his retirement, Justice Lorenz heard the oral argument in this appeal. Following his retirement, Justice Cousins was substituted for Justice Lorenz on the panel of this appeal and has listened to the tape of orals and read the briefs.