author: JUSTICE INGLIS

text:
    DIANA GROTE, Plaintiff-Appellant, v. ESTATE OF MARGARET FRANKLIN, Defendant-Appellee.
    Second District
    No. 2—90—1015
    Opinion filed June 5, 1991.

      Robert M. Foote, of Murphy, Hupp, Foote, Mielke & Kinnally, of Aurora (Craig S. Mielke, of counsel), for appellant.
    Michael C. O’Neill, of Law Offices of John R. Wienold, Ltd., of Aurora (John R. Wienold, of counsel), for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Diana E. Grote, filed a complaint against defendant, the estate of Margaret S. Franklin, alleging that Margaret (the decedent) negligently operated her motor vehicle, causing the decedent to cross the center line and hit plaintiff’s vehicle head-on. Defendant filed an affirmative defense alleging that an “Act of God” was the sole or proximate cause of the accident. Defendant then moved for summary judgment on its affirmative defense, which the trial court granted. Plaintiff timely appeals, raising the following issues: (1) whether the trial court properly considered expert opinions in granting summary judgment, and (2) whether, as a matter of law, an “Act of God” was the sole proximate cause of the motor vehicle accident involving plaintiff and the decedent. We affirm.

The accident at issue occurred on March 14, 1989, at approximately 12:25 p.m. in Kane County, Illinois. According to the traffic accident report prepared by police officer David Reese, plaintiff’s vehicle was traveling northbound on Route 25 prior to the accident, and the decedent’s vehicle was traveling southbound on Route 25. The impact between the two vehicles took place in the northbound lane of Route 25.

Michael Henningson saw the decedent’s vehicle prior to the accident. According to his statement, Henningson was traveling southbound a few vehicles behind the decedent. The decedent was traveling at a very slow rate of speed, and several vehicles that were following her had passed her. Henningson stated that he witnessed the decedent’s vehicle cross the yellow center line into oncoming northbound traffic. A northbound Yugo came to a complete stop in the northbound lane. The decedent’s vehicle struck the Yugo and then veered back into the southbound lane. Henningson could not tell whether the decedent’s return to the southbound lane was a conscious steering effort or whether it was from the impact of hitting the Yugo.

Henningson stated that the decedent’s vehicle continued traveling at a slow rate of speed for another 75 to 80 yards before it veered over into the northbound lane again. Henningson reported that the decedent’s vehicle went up on the side of the road and knocked over a mailbox. It was headed for a “Welcome to St. Charles” sign when it took a definite maneuver towards going back on the road. The decedent’s vehicle accelerated up to a much greater rate of speed and veered back over into the correct southbound lane. There was then a curve in the road, and the decedent’s vehicle was out of Henningson’s sight. When Henningson completed the curve, he saw that the decedent’s vehicle had collided with the plaintiff’s.

Sue Anderson stated that she was traveling northbound on Route 25 on the day in question. Anderson stated that the two vehicles traveling in front of her had pulled off to the side of the road, which caused her to pull over. Anderson then saw the decedent’s southbound vehicle coming into the northbound lane. Anderson explained that the decedent’s vehicle was traveling at a slow rate of speed. After the decedent’s vehicle passed her, Anderson looked in her rearview mirror and saw that the decedent’s vehicle was completely in the wrong lane. Anderson then saw the decedent’s vehicle go off the road and hit a mailbox. Anderson stated that when the vehicle hit the mailbox, the driver was sitting upright, and Anderson could see the back of the person’s head. Anderson said that after hitting the mailbox, the decedent’s vehicle then started back across the roadway.

William Durrenberger also saw the decedent’s vehicle prior to the accident at issue. According to the statement given by Durrenberger, he was a passenger in a car which was traveling northbound on Route 25. Durrenberger said he first saw the decedent’s vehicle when it was one-fourth to one-half mile away. He said it soon became apparent that the decedent’s vehicle was in the wrong lane of traffic and was traveling approximately 40 to 60 miles per hour. Durrenberger told his friend, the driver of the vehicle in which he was riding, to honk the horn, which the driver did. Durrenberger stated that the decedent’s vehicle did not react to them; instead, it maintained its rate of speed and continued as if it were supposed to be in the wrong lane. Durrenberger stated that the decedent’s vehicle was able to negotiate a slight bend in the road.

Durrenberger said that his friend slowed their car down to 5 to 15 miles per hour and pulled the car half way up onto the curb. After the decedent’s car passed them, Durrenberger’s friend looked in his rear-view mirror and saw that there had been an accident. They turned their car around to go to the scene of the accident. Durrenberger stated that, when they arrived at the scene, he went to the decedent’s vehicle to see if there was anything he could do. The decedent had slid down underneath the steering column and her head was lying on the passenger seat looking up towards the ceiling. While Durrenberger stated that there was no indication that the decedent was still conscious, he said that her eyes were open and her lips were “kind of quivering a little bit.” Durrenberger opined that the decedent must have hit something with her face because there was blood on her face and one of her eyes had been “pounded pretty bad.”

Terry Heiland witnessed the decedent’s vehicle strike the plaintiff’s. According to his statement, Heiland noticed the decedent’s vehicle when he first turned onto the southbound lane of Route 25. Heiland saw the decedent’s vehicle about one-fourth to one-half mile behind him traveling about five miles per hour. The vehicle was on the west side of Route 25, off the road and into the grassy area. Heiland said that he saw the vehicle drive over a mailbox. Heiland proceeded southbound around a curve in the road and lost sight of the decedent’s vehicle. Subsequently, Heiland saw the decedent’s vehicle in his rearview mirror as it was coming around the curve. Heiland stated that the vehicle appeared to be in control and was traveling south at approximately 30 miles per hour in the northbound lane. Heiland turned off Route 25 and into a driveway. When he looked up, he saw the decedent’s vehicle strike the plaintiff’s. Heiland stated that he did not hear either vehicle use its brakes. Heiland said that he went over to the decedent’s vehicle and saw her lying down behind the steering wheel; the decedent had blood on the bridge of her nose.

In a statement given by Jeffrey Lewis Finley, an off-duty police officer, Finley indicated that, in the afternoon on the date of the subject accident, it was cloudy but dry and the temperature was in the 40’s. Finley stated that he was traveling north on Route 25, heading toward St. Charles. Finley explained that Route 25 is a two-lane highway, with one lane of traffic in each direction and a marked center line.

Finley stated that he observed the decedent’s car traveling southbound in the northbound lane of Route 25 around a slight curve in the road. Finley said that, when he realized that the vehicle was not going to switch into the correct lane, he pulled his vehicle off the roadway and let the decedent’s vehicle pass him. Finley said that he was able to see the decedent as her car went by and described her as an elderly, gray-haired woman that appeared to be lifeless. He said that the decedent was crouched down, hanging on to the top of the steering wheel. Her skin was colorless, and he saw no movement in the car. He said that she had a blank stare in her eyes, which were pointed elsewhere besides on the road. Finley opined that it looked like the decedent was passed out behind the wheel.

Finley stated that when the decedent’s vehicle passed him, it was traveling approximately 50 miles per hour. He said the vehicle continued southbound in the wrong lane, causing two cars behind him to pull off the road. Finley had a portable radio in his vehicle and reported the incident. He then proceeded after the decedent’s car, around a slight curve in the road. By the time Finley drove around the curve, the decedent’s vehicle had already collided with the plaintiff’s vehicle. Finley called in the accident on the radio and then went over to check on the decedent. Finley stated that he saw no signs of life: the decedent had no pulse, and she did not move.

When questioned as to whether the decedent’s vehicle was traveling in a straight line, Finley responded:

“No, it’s a curved section of the roadway and as I think back the only way that that vehicle could have done what it did, drove the way it was would be if the wheels were like constantly touching the curb and the curb kept pushing it back on the roadway or something because it was just, probably if a person had been driving the vehicle they probably couldn’t have negotiated the arc in that curve as perfectly as that car, as [the decedent’s] car appeared to be doing.”

Finley explained that the day after the accident, he went back to look at the curb. He stated that there were black marks on the east side of the curb, indicating that a tire had been scuffing up against it. Finley opined that it was probably from the decedent’s vehicle, although he admitted that he did not examine the decedent’s tires after the accident.

Dr. James Pritchard is the pathologist who performed the autopsy on the decedent. In his deposition, Pritchard testified that, prior to performing the autopsy, he spoke with the decedent’s attending physician, Dr. Nelson. Pritchard was informed that the decedent had seen Nelson in the past for some episodes of what were thought to be transient ischemia. Pritchard explained that transient ischemia are episodes where the brain does not receive a sufficient amount of oxygen and the patient can become disoriented or faint. Pritchard testified that he was not able to determine, from the autopsy, or any other source, whether the decedent had an episode of transient ischemia on the day she died.

The autopsy showed that there had been trauma to the upper part of the decedent’s body in the frontal area. In addition, there had been trauma to the chest area and a large amount of blood was discovered in the middle part of the decedent’s chest. Pritchard stated that the blood in the chest resulted from a laceration in the aorta. Pritchard explained that the laceration was typical of a blunt trauma in a forward motion and opined that the car accident was the cause of the tear.

Pritchard found it significant that the heart did not show any congenital anomalies, and the calcifications present in the decedent’s aorta were consistent with her age. Pritchard stated that, to the best of his knowledge, the decedent did not have a heart attack.

The autopsy showed a large amount of blood found in the decedent’s brain. The bleeding in that area came from the basilar artery. Pritchard could not say for certain what caused the damage to the basilar artery; however, he opined that it was not necessarily related to the trauma that caused the aorta to rupture. In support, Pritchard stated that the basilar artery is extremely well protected and it would be unusual for it to be damaged by trauma.

Pritchard opined that the basilar area was damaged prior to the aorta tearing. His opinion was based, in part, upon a statement regarding the facts of the auto accident provided by Dr. Pritchard’s chief medical technologist,, who happened to witness the decedent driving just prior to the accident. The technologist told Pritchard that she saw the decedent cross over into the wrong lane of traffic, cross back into the right lane, and then cross over again into oncoming traffic. Pritchard opined that the bleeding from the basilar artery caused the aberrations in driving to occur, and the proximate cause of the decedent’s death was the blunt trauma sustained at the time of the impact of the accident.

Pritchard was unable to find what caused the bleeding in the basilar artery. Pritchard stated that it could not be determined exactly when the bleeding started; however, he did estimate that it started within six to eight hours of the decedent’s death. Pritchard explained that a massive hemorrhage to the basilar artery would cause a person to lose voluntary control of his or her reactive systems. Pritchard stated that such a hemorrhage would prevent a person from being able to respond to outside stimulus. A person stricken with this type of hemorrhage has no warning as to when it will occur. Pritchard explained that there is usually a pain of varying severity in the back, and one loses consciousness rather quickly.

Dr. Rodney Nelson is an internist and cardiologist. The decedent had been a patient of Nelson’s for approximately 20 years. Nelson recalled having seen the decedent on November 18, 1988, at which time the decedent reported an episode of confusion. Although it is not in his records, Nelson believes that he probably told the decedent not to drive for one month. Nelson testified that the next time he saw the decedent was on February 23, 1989. Nelson stated that the decedent’s condition on that day was “really excellent.” Nelson read his notes from that visit into the record. Nelson noted a history of ischemic attack, which both he and the decedent felt was most likely the cause of her period of confusion in the previous November. Nelson noted no returns of confusion; however, the decedent was directed to take aspirin every other day for cerebral ischemic episodes. Nelson stated that such episodes would likely be associated with confusion in someone of the decedent’s age, who was 78 years old.

Nelson discussed the decedent’s death with Dr. Pritchard. Nelson opined that the cause of death was a rupture of the aorta. The decedent also had an intracranial bleeding episode from the basilar artery. Based upon a hearsay report of the accident and the information provided by Dr. Pritchard, Nelson opined that the cerebral hemorrhage caused the decedent to lose consciousness and, perhaps, to lose control of her car. Nelson conceded, however, that it was not possible to determine for certain whether the bleeding occurred before or after the accident.

Nelson opined that in March 1989, the decedent was competent to drive a vehicle. Nelson explained that a single episode of confusion in an otherwise apparently healthy person, such as the decedent, would not merit the recommendation that the person permanently abstain from driving.

Nelson testified that generally when an ischemic attack occurs, there is no warning to the patient that the attack is coming. Nelson stated that such an attack impairs a person’s judgment, performance, and so forth. Similarly, an intracranial bleeding episode causes a person to lose control of his or her senses and ability to reason. The bleeding episodes prevent a person from using independent judgment in his or her bodily action, as it commonly causes prompt and total loss of consciousness.

Defendant’s counsel posed Dr. Nelson with the following hypothetical:

“I would like you to assume for purposes of my question the following facts, along with your knowledge of [the decedent], your discussion with the pathologist and, also, your knowledge of the physical condition that she was found to be in at the autopsy; okay?
I want you to assume the following facts in addition to that: That [the decedent] was driving her automobile; and within a couple blocks of where the accident happened, she was observed as driving erratically, and by that I mean knocked over a mailbox, ran into parked cars; assume, also, that she failed to respond in an appropriate way, meaning stopping her automobile or taking other evasive action once she had encountered those problems; also assume that she failed to respond to an outside stimulus, such as someone blowing a horn, and that she continued on in an erratic path, which she was doing.
I want you to also assume that an independent observer within a couple blocks of the accident actually visualized [the decedent] and described her appearance as being passed out, although, with her eyes open and being somewhat slumped over her steering wheel, although, having her hands on the steering wheel.
I, also, want you to assume that the independent observer described her as being real pale, lifeless, no expression and no color at the time that he observed her as she was going past him prior to the accident.
With these assumptions, Dr. Nelson, along with your knowledge of the medical history of [the decedent] and the conditions as described to you by the pathologist and your own findings, do you have any opinion as to whether [the decedent] was suffering from either a transient ischemic attack or intracranial bleeding prior to the accident?”

Over the objection of plaintiffs counsel, Nelson answered by stating:

“Ischemia comes in radiance from mild to moderate to — when it gets beyond that point, we have irreversible changes with tissue damage due to the level of ischemia.
With this sequence of events, this would put this at a level more than a transient ischemic attack.”

Nelson opined that an intracranial hemorrhage is consistent with the assumptions presented in the hypothetical and the physical findings of the decedent. Nelson testified that he knew of no other medical reason that would explain the decedent’s behavior.

Nelson conceded that someone could not negotiate a curve while driving a car without purposeful bodily function. However, Nelson would not find it unusual for a person without purposeful bodily function to retain his or her hands in their appropriate position on the steering wheel. Nelson explained that in such a situation a person’s hands can either become placid, in which case everything drops, or they can become spastic, in which case they would retain a very tight grip on the wheel. Nelson testified that, after death, there is no way to determine whether a person was placid or spastic.

After due consideration, the trial court granted defendant’s motion for summary judgment and entered judgment in favor of defendant and against plaintiff. Plaintiff timely appeals.

First, we consider plaintiff’s contention that the trial court improperly considered the opinion testimony of Dr. Pritchard and Dr. Nelson. Plaintiff initially argues, without citation to authority, that summary judgment should generally not be granted based upon expert testimony. Plaintiff’s argument is clearly a misstatement of the law. In fact, the same argument was made in Harris v. Bethlehem Steel Corp. (1984), 124 Ill. App. 3d 449, and was rejected.

In Harris, the plaintiff asserted that summary judgment could not be based on the opinion of an expert witness adduced at a deposition. The plaintiff claimed that, because a jury is not bound to accept the opinion of an expert on an ultimate issue, such an opinion is too inconclusive to form the basis of a summary judgment. (Harris, 124 Ill. App. 3d at 453.) The appellate court disagreed, finding that “the issue in summary judgment cases is not whether a jury would accept or reject the statement of the affiant or deponent but rather whether that statement is contradicted so as to create a genuine issue of material fact.” (Harris, 124 Ill. App. 3d at 453.) The court held that, because the expert’s deposition was uncontradicted and the plaintiff had not argued that the expert was incompetent to testify, the trial court could properly consider the expert’s opinion in ruling on the motion for summary judgment. Harris, 124 Ill. App. 3d at 453.

Similarly, plaintiff has not argued here that Dr. Pritchard or Dr. Nelson was incompetent to testify. Nor were their testimonies contradicted. Plaintiff presented no expert testimony in her behalf, and the testimony presented by her witnesses was undisputed. The extent to which the facts are inconsistent with the experts’ opinions affects only the weight to be given to the opinions, not their admissibility. Saunders v. Norfolk & Western Ry. Co. (1977), 54 Ill. App. 3d 307, 316.

Plaintiff makes other arguments in attacking the admissibility of the experts’ opinions; however, she cites no authority in support of her arguments. Arguments made without citation to authority do not merit review. City of Chicago v. Cross City Disposal, Inc. (1990), 200 Ill. App. 3d 520, 524.

Next, we consider plaintiff’s argument that summary judgment was improperly granted because there were unresolved factual issues. Specifically, plaintiff argues that a question of fact remains as to whether the decedent was stricken with an unforeseeable sudden illness, which rendered her incapable of controlling her vehicle.

When a plaintiff appeals from a trial court’s order granting summary judgment for a defendant, the only issue on appeal is whether “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c); West v. Kirkham (1991), 207 Ill. App. 3d 954, 957.) In determining whether a genuine issue of fact exists, the trial court must construe the pleadings, depositions, and affidavits in the light most favorable to the non-moving party. (Wilmere v. Stibolt (1987), 152 Ill. App. 3d 642, 646.) Where the evidence before the court shows that a verdict would have to be directed at trial, entry of summary judgment is proper. West, 207 Ill. App. 3d at 957-58.

If a plaintiff shows that an accident occurred as a result of the defendant driving on the wrong side of a road, then a prima facie case of negligence has been made. (Osborne v. O'Brien (1986), 114 Ill. 2d 35, 41.) “It is then incumbent on the defendant to adduce evidence to show that his vehicle was in that position because of some reason other than his own negligence.” (Osborne, 114 Ill. 2d at 41.) An unforeseeable sudden illness which renders a defendant incapable of controlling his vehicle is an “Act of God” and can preclude tort liability for a resulting collision. Burns v. Grezeka (1987), 155 Ill. App. 3d 294, 299.

Plaintiff contends that an affirmative defense based upon an “Act of God” cannot be the basis for a summary judgment. We disagree and find the cases cited by plaintiff to be distinguishable. In Baltes v. Checker Taxi Co. (1960), 27 Ill. App. 2d 298, the trial court excluded any testimony that the accident was caused by a sudden heart attack suffered by the driver. The jury returned a verdict in favor of the plaintiff, and the defendant appealed. The appellate court reversed, finding that the evidence supporting the defendant’s theory that the accident occurred solely because of a heart seizure suffered by the driver was admissible. (Baltes, 27 Ill. App. 2d at 301.) However, the appellate court rejected the defendant’s argument that evidence of the driver’s heart seizure requires a judgment in its favor. The court stated: “We are satisfied that the testimony viewed in its aspect most favorable to the plaintiff presented a case which should go to the jury for a verdict.” (Baltes, 27 Ill. App. 2d at 302.) The opinion does not set forth the testimony on which the court relied. In any event, we do not interpret the court’s statement as precluding summary judgment in all cases where an “Act of God” defense is used.

Hoggatt v. Melin (1961), 29 Ill. App. 2d 23, and McClean v. Chicago Great Western Ry. Co. (1954), 3 Ill. App. 2d 235, are similarly distinguishable. In Hoggatt, the appellate court declined to reverse the jury’s finding that the accident at issue was caused by an Act of God. (Hoggatt, 29 Ill. App. 2d at 29.) In McClean, the appellate court found that a jury instruction defining “Act of God” was warranted in that case. (McClean, 3 Ill. App. 2d at 246-47.) The McClean court noted that when the driver’s wheels went off the road, he was slumped over the steering wheel with his right hand on the steering wheel, his left hand hanging at his side, and his head bent forward to a position almost level with the upper part of his chest. In addition, there was testimony that the driver’s vehicle was out of control and that the driver appeared to have had a stroke or attack, or was reaching slowly for something. The court stated: “It was for the jury to determine from the facts he observed and stated whether [the driver] had an attack of illness.” McClean, 3 Ill. App. 2d at 246.

We do not find the court’s rulings in Hoggatt or McClean as barring summary judgment in the case at bar. The only case cited by plaintiff which is at all similar to the present case is Burns v. Grezeka (1987), 155 Ill. App. 3d 294.

In Burns, the plaintiff was a passenger in a vehicle that was stopped at a red light when it was struck in the rear by a car driven by the defendant. The defendant subsequently died, and the plaintiff amended her complaint, naming decedent’s estate as a defendant.

The driver of the car in which the plaintiff was traveling stated in his deposition that he first observed the decedent 10 or 15 seconds after the accident and noted that his eyes were open, but rolled back, and his arms were up; shortly thereafter, the decedent was unconscious and drooling, with his eyes closed and his arms down. When the plaintiff saw the decedent, the decedent was gasping for air, was unconscious, and his skin was a grayish-blue color. Burns, 155 Ill. App. 3d at 296.

A doctor examined the decedent shortly after the accident. According to the doctor’s deposition, the decedent told him he was driving his car when he suddenly became weak and passed out. The doctor explained that the decedent was suffering from an abdominal aneurysm which had' been present for the past two or three years and had spontaneously ruptured. The doctor stated that the rupture had caused the decedent’s blood pressure to drop and rendered him unconscious 45 to 60 seconds afterwards. The doctor opined that it was most probable that the aneurysm had preceded and caused the accident. The doctor stated that the decedent would not have experienced any forewarning of the rupture. Burns, 155 Ill. App. 3d at 296-97.

In response to the defendant’s motion for summary judgment, the plaintiff filed additional excerpts from the doctor’s deposition and a police report; both indicated that the decedent had fainted while at the red light. In addition, the doctor stated in the filed excerpts that, based upon a reasonable degree of medical certainty, it was possible that the accident had preceded and caused the rupture. Burns, 155 Ill. App. 3d at 297.

The trial court granted the defendant’s motion for summary judgment, and the appellate court reversed. The court found that the evidence did not demonstrate as a matter of law that the rupture of the aneurysm caused the accident. The court noted that the doctor’s testimony was contradictory and did not establish the disputed question as to when the rupture occurred. The court also noted that the decedent could be considered negligent for driving in an impaired state of health or for failing to pull his vehicle over to the side of the road in the 45 to 60 seconds before the rupture rendered him unconscious. Burns, 155 Ill. App. 3d at 299.

As with the other cases cited by plaintiff, we do not find the court’s opinion in Burns as precluding summary judgment when an “Act of God” defense is raised. Further, we find the facts in Burns to be distinguishable from the case at bar. While the opinion of the doctor in Burns was contradictory, the experts’ opinions in the present case were consistent. Dr. Pritchard opined that the decedent suffered from a massive cerebral hemorrhage of the basilar artery which preceded the trauma of the auto accident and caused her to lose control of her vehicle. Dr. Nelson opined that the decedent suffered from a sudden intracranial hemorrhage, which caused the decedent to lose consciousness and, perhaps, to lose control of her car. Nelson opined that the cause of death was a rupture of the aorta.

Plaintiff has filed no deposition refuting the opinions of Drs. Pritchard and Nelson. While Dr. Pritchard was unable to determine for certain whether the decedent had an episode of transient ischemia on the day she died, Dr. Nelson opined that the decedent did not have a transient ischemia attack. He opined that the only medical explanation for the decedent’s behavior was that she suffered from an intracranial hemorrhage.

Plaintiff has presented nothing which would put the above opinions into question. The statements given by the witnesses did not contradict the experts’ opinions. While witnesses saw the decedent’s vehicle hit a mailbox, veer back into the correct lane, and cross over again into oncoming traffic, there is nothing to suggest that the decedent’s actions were deliberate or purposeful. In fact, witnesses commented on decedent’s lack of reaction.

Jeffrey Finley saw the decedent as she passed him, and he said that she appeared to be lifeless. She was crouched down, hanging onto the top of the steering wheel; her skin was colorless and she had a blank stare in her eyes. He opined that it looked like she was passed out behind the wheel. After Finley saw the state of decedent’s condition, he witnessed her vehicle negotiate a curve in the road. Finley stated that the only way the vehicle could have negotiated the curve the way it did was if the wheels were constantly touching the curb and the curb kept pushing it back on the roadway. This is consistent with the experts’ opinions, which indicated that a massive hemorrhage to the basilar artery would cause a person to lose voluntary control of his or her reactive systems.

Further, unlike Burns, there is no evidence here that the decedent was negligent for driving in an impaired state of health. The decedent apparently only had one episode of transient ischemia, which was in 1988. Approximately one month prior to the accident, the decedent met with her doctor, who reported her to be in excellent health. In addition, the doctor opined that the decedent was competent to drive on the date of the accident.

There is also no evidence suggesting that the decedent was negligent for failing to pull her vehicle over to the side of the road after the hemorrhage began. In Burns, there was expert testimony indicating that, once the aneurysm ruptured in the defendant driver, he probably suffered increased back pain and had 45 to 60 seconds before he was rendered unconscious. In the case at bar, there was testimony indicating that a person stricken with a cerebral hemorrhage has no warning as to when it will occur. While Dr. Pritchard testified that the hemorrhage most likely occurred within six to eight hours of the decedent’s death, he explained that it takes a while for the pressure to increase because the bleeding can begin with small oozing and start and stop. He stated that the hemorrhage itself comes quickly and, while there is pain of varying severity in the back, one loses consciousnessfather quickly.

There was nothing to suggest in the case at bar that the decedent felt the back pain or had time to pull off the road. Thus, we find that, as a matter of law, the decedent was not negligent and the accident was caused by an Act of God.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

McLAREN and GEIGER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE NICKELS

license: Public Domain

text:
    RUBY M. HELLAND, Plaintiff-Appellee and Cross-Appellant, v. DAVID W. HELLAND, Defendant-Appellant and Cross-Appellee.
    Second District
    No. 2—90—0606
    Opinion filed June 5, 1991.
    Vern L. Davitt, of Rockford, for appellant.
    David L. Martenson, of Martenson & Associates, of Rockford, for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

The circuit court of Winnebago County denied plaintiff’s, Ruby M. Helland’s, claim for compound interest on the obligation contained in defendant’s, David W. Helland’s, past-due promissory note. The trial court, however, granted plaintiff attorney fees incurred as a result of her unsuccessful claim. Defendant appeals asserting that: (1) the trial court incorrectly awarded plaintiff attorney fees because such fees were incurred after his payment in full of the promissory note containing the attorney fee provision; and (2) based on plaintiff’s failure to prevail in her claim for compound interest, he is entitled to his attorney fees in defense of plaintiff’s spurious claim as provided in Supreme Court Rule 137 (134 Ill. 2d R. 137). Plaintiff cross-appeals asserting that the court erred in finding that plaintiff was not entitled to compound interest. We affirm in part and reverse in part.

On January 30, 1984, defendant executed a promissory note payable to plaintiff as part of the parties’ judgment of dissolution of marriage. Defendant obliged himself to pay the sum of $12,000 plus interest at a rate of “8% per annum” to plaintiff on or before September 1, 1989. The note further provided that “in the event suit is filed upon the obligation herein stated in any court of competent jurisdiction, upon or after default, costs and reasonable attorney fees” would be paid by defendant in addition to the principal and interest.

Defendant failed to pay the sum due to plaintiff, and, on December 6, 1989, plaintiff filed a complaint to enforce defendant’s obligation. Plaintiff specifically alleged that defendant owed “$12,000 principal, $5,600.00 interest through 11/29/89, interest of $2.63 per day beginning November 30, 1989, and reasonable attorney fees and costs.” On December 27, 1989, defendant, after notifying counsel for plaintiff, remitted the sum of $18,263.50 representing the above-claimed principal and interest in addition to court costs of $83.50 and estimated attorney fees of $500.

However, plaintiff notified defendant that the sum remitted was insufficient and proceeded to petition the court to allow her use of the funds pending resolution of her claim for compound interest. On March 22, 1990, the court denied plaintiff’s claim for compound interest but granted her petition for $1,280.50 in attorney fees. Plaintiff’s attorney testified that prior to receipt of defendant’s payment, he expended 3.6 hours at a rate of $110, or $396, and that the balance of his fees were incurred in continuing to pursue plaintiff’s unsuccessful claim for compound interest. The court denied defendant’s motion for reconsideration and this appeal and cross-appeal followed.

Defendant asserts that the court improperly awarded plaintiff attorney fees generated after defendant paid in full his obligation to plaintiff. Plaintiff cross-appeals asserting that, contrary to the court’s ruling, defendant’s promissory note entitled her to compound rather than simple interest.

We first address plaintiff’s claim that the court erred in not granting her compound interest on the principal contained in defendant’s promissory note. The law does not favor compound interest. (Harrington v. Kay (1985), 136 Ill. App. 3d 561, 570.) Only when no statutory bar is present and the parties specifically agree to compound interest may such interest be applied. (Harrington, 136 Ill. App. 3d at 570.) Plaintiff asserts that the language “8% per annum” contained in the promissory note indicated that compound interest was intended. In light of Illinois’ disfavor of compound interest, we decline to read that language so expansively.

Several statutory provisions provide for interest “per annum.” (See, e.g., Ill. Rev. Stat. 1989, ch. 17, par. 6402 (“[creditors shall be allowed to receive at the rate of five (5) per centum per annum for all monies after they become due”).) However, such language has been interpreted as providing for only simple rather than compound interest. (Braden v. Weinert (1981), 97 Ill. App. 3d 929, 937-38.) “Per annum” merely denotes the frequency at which the applicable rate of interest is to be applied and does not permit a compounded annual method of computation. See Lewis v. Stran-Steel Corp. (1978), 58 Ill. App. 3d 280, 282-83.

So, too, plaintiff’s own interpretation of the promissory note was that only simple interest was applicable, as evidenced by the allegations of her complaint. Plaintiff claimed interest owing of $5,600 for the 5 years and 11 months duration of the promissory note. This clearly is 8% simple interest per year. Thus, the trial court’s ruling that defendant’s promissory note required defendant to pay only simple interest is affirmed.

We now turn to defendant’s claim, which is that plaintiff was not entitled to attorney fees for pursuit of her erroneous claim for compound interest. Once again, as with compound interest, the law does not favor the award of attorney fees. (Saltiel v. Olsen (1981), 85 Ill. 2d 484, 488.) Only when explicitly provided by statute or by agreement is a prevailing party entitled to his opponent’s payment of his attorney fees. (Wheeling Trust & Savings Bank v. Citizens National Bank (1986), 142 Ill. App. 3d 333, 338-39.) Contractual provisions for attorney fees must be strictly construed, and the court must determine the intention of the parties with respect to the payment of attorney fees. (Wheeling Trust & Savings Bank, 142 Ill. App. 3d at 339.) A provision for attorney fees in a note does not generally entitle a party to fees generated in interpreting the note, but rather only those incurred in enforcing the note. (Wheeling Trust & Savings Bank, 142 Ill. App. 3d at 339.) Nor can a party recover under a contractual provision allowing for attorney fees in collection of a note when the party fails to establish a right to the amounts claimed. (First State Bank v. Busse (1984), 126 Ill. App. 3d 577, 579.) Rather, such a party is limited to the reasonable fees and expenses generated to collect only the amount to which he was entitled under the instrument containing the provision for attorney fees. First State Bank, 126 Ill. App. 3d at 579.

We begin with the provision of the promissory note by which defendant agreed to pay plaintiff’s attorney fees. Defendant agreed “in the event suit is filed upon the obligation herein stated in any court of competent jurisdiction, upon or after default, costs and reasonable attorney fees” would be paid by defendant in addition to the principal and interest. The attorney fee provision of the promissory note clearly only applied in the event of default and was, therefore, intended to apply only to fees generated for the purposes of collection as a result of defendant’s failure to pay the amount due. In pursuing her claim for compound rather than simple interest after payment of defendant’s obligation, however, plaintiff sought interpretation of the interest provision of the note rather than enforcement of the note. (See Wheeling Trust & Savings Bank, 142 Ill. App. 3d at 339.) Such claim obviously was not caused by defendant’s default because he had paid the promissory note. Although defendant was in default at the time plaintiff filed suit, the subsequent payment of the balance due in full cured that default, and plaintiff was entitled only to attorney fees incurred prior to cure.

Further, plaintiff’s recovery of attorney fees was limited to those reasonable fees and expenses generated to collect only that portion of the obligation to which she was entitled. (First State Bank, 126 Ill. App. 3d at 579.) However, plaintiff was not entitled to compound interest, which the trial court itself determined and which we affirm. Thus, the trial court improperly awarded plaintiff fees generated after defendant cured his default, and defendant is entitled to return of such fees paid in excess of $396, which was the amount of fees incurred in the collection of the note.

Finally, turning to defendant’s claim for his attorney fees pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137), we note that the trial court referred to the difficulty of the issue and its need for extensive personal research as indicative of plaintiff’s good faith in pursuing her claim for compound interest. We do not dispute this finding. However, although such good faith cannot be the basis of an award of contractual attorney fees as claimed by plaintiff, it is a defense to defendant’s claim for attorney fees as a sanction for frivolous litigation. Thus, we affirm the trial court’s denial of such claim.

The judgment of the trial court finding that plaintiff was not entitled to compound interest is affirmed, as is its denial of defendant’s petition for attorney fees. However, we reverse the trial court’s award to plaintiff of attorney fees incurred after defendant’s payment of his promissory note with simple interest and remand with directions to order the refund to defendant of those attorney fees paid in excess of $396.

Affirmed in part; reversed in part and remanded.

BOWMAN and WOODWARD, JJ., concur.


author: JUSTICE McLAREN

text:
    PATRICK LEARY, as Adm'r of the Estate of Benjamin Leary, Plaintiff-Appellant and Cross-Appellee, v. KINMO KENNETH ENG, Defendant-Appellee and Cross-Appellant (M.A. Sachani, Defendant-Appellee).
    Second District
    No. 2—90—0916
    Opinion filed June 5, 1991.

      Stephen A. Frew, of Frew & Gilbert, Ltd., of Rockford, for appellant.
    Edward M. Maher, of Clark, McGreevy & Johnson, P.C., and Gregory E. Barrett, of Schlueter, Ecklund, Olson, Barrett & Moore, both of Rockford, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Patrick Leary, as administrator of the estate of Benjamin Leary, a deceased minor, appeals from the trial court’s denial of his post-trial motion subsequent to a jury verdict in favor of defendants, Dr. Kinmo Eng and Dr. M.A. Sachani. On appeal, plaintiff argues the trial court erred by not allowing a treating physician to testify as to the standard of care required and by refusing to provide the jury with certain instructions. Defendant cross-appeals from the trial court’s order assessing the cost of including additional materials in the record to him. We affirm.

This suit was based upon care given or not given to Benjamin Leary in January 1982. Plaintiff alleged medical malpractice was committed by Rockford Memorial Hospital, Dr. Kinmo Eng, Dr. M.A. Sachani and Spectrum Emergency Care, Inc. During the course of the litigation, both Rockford Memorial Hospital and Spectrum Emergency Care were dismissed as defendants. The case proceeded to trial against the remaining defendants, Dr. Eng and Dr. Sachani.

Plaintiff presented, inter alia, testimony from two expert witnesses who opined as to malpractice and the resulting injury to Benjamin. Additionally, plaintiff presented the testimony of Dr. Burton Moore, the Learys’ “regular” treating pediatrician. Dr. Moore was not disclosed as an expert witness pursuant to Supreme Court Rule 220. (134 Ill. 2d R. 220.) Dr. Moore testified as to his personal knowledge of Benjamin’s condition. However, the court refused to permit Dr. Moore to testify as to the standard of care exercised in emergency rooms and pertaining to pediatricians.

Dr. Eng and Dr. Sachani each testified. Additionally, defendants, inter alia, presented expert testimony from four witnesses.

During the instructions conference, plaintiff tendered instructions consistent with Illinois Pattern Jury Instructions, Civil, Nos. 10.01, 10.02, and 10.04 (2d ed. 1971) (hereinafter IPI Civil 2d).

The plaintiff tendered the following instruction based upon IPI Civil 2d No. 10.01:

“When I use the word ‘negligence’ in these instructions, I mean the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence. The law does not say how a reasonably careful person would act under those circumstances. That is for you to decide.”

The court refused this instruction. Plaintiff also tendered the following instruction based upon IPI Civil 2d No. 10.02:

“When I use the words ‘ordinary care,’ I mean the care a reasonably careful person would use under circumstances similar to those shown by the evidence. The law does not say how a reasonably careful person would act under those circumstances. That is for you to decide.”

The court refused to give this instruction. Plaintiff also tendered the following instruction based upon IPI Civil 2d No. 10.04:

“It was the duty of the defendant, before and at the time of the occurrence, to use ordinary care for the safety of Benjamin Leary. That means it was the duty of the defendant to be free from negligence.”

The court also denied this instruction.

The trial court did give the following instructions based upon IPI Civil 2d No. 105.01:

“In treating a patient, a doctor must possess and apply the knowledge and use the skill and care that is ordinarily used by reasonably well-qualified doctors in similar case[s] and circumstances. A failure to do so is a form of negligence that is called malpractice.
The only way in which you may decide whether the defendant possessed and applied the knowledge and used the skill and care which the law required of him is from evidence presented in this trial by doctors called as expert witnesses. You must not attempt to determine this question from any personal knowledge you have.”

The court also gave the following instruction based upon IPI Civil 2d No. 105.02:

“In treating a patient, a doctor who holds himself out as a specialist and undertakes service in a particular branch of medical, surgical, or other healing science, must possess and apply the knowledge and use the skill and care which reasonably well-qualified specialists in the same field ordinarily would use in similar cases and circumstances. A failure to do so is a form of negligence called malpractice.”

The jury returned verdicts in favor of Dr. Eng and Dr. Sachani. Plaintiff filed a post-trial motion which the court denied. Plaintiff filed a timely notice of appeal claiming the court erred by not allowing Dr. Moore to testify as to the standard of care required and by not giving IPI Civil 2d Nos. 10.01,10.02 and 10.04.

Plaintiff, when filing his notice of appeal, requested an abbreviated record to be prepared for the appeal. Defendant, Dr. Eng, pursuant to Supreme Court Rule 323(a) (134 Ill. 2d R. 323(a)), requested the inclusion of additional testimony in the record on appeal. Plaintiff objected to the inclusion of this additional evidence, claiming it was unnecessary as the issues on appeal were questions of law. The court allowed the additional information requested to be placed in the record but only at Dr. Eng’s expense. Dr. Eng cross-appeals from this decision.

We first address defendants’ contention that plaintiff has presented this court with an insufficient record upon which we can find reversible error. Plaintiff counters by arguing the “issues raised *** on appeal do not address factual issues as a basis for the court’s rulings but raise issues of law in procedural rulings of the trial court.” Therefore, plaintiff claims a complete record is not necessary for a review of the issues raised.

An appellant has the burden to present a sufficiently complete record of the trial proceedings to support a claim of error. (Foutch v. O'Bryant (1984), 99 Ill. 2d 389, 391-92.) Without such a record, this court will presume the trial court acted correctly. (Foutch, 99 Ill. 2d at 392.) However, if the issue is solely one of law, the absence of a complete record will not bar appellate review. Woodfield Ford, Inc. v. Akins Ford Corp. (1979), 77 Ill. App. 3d 343, 347.

Plaintiff’s argument to this court is that IPI Civil 2d Nos. 105.01 and 105.02 use the term “negligence” and the principle of ordinary care. IPI Civil 2d Nos. 10.01 and 10.02 define these concepts. Additionally, IPI Civil 2d No. 10.04 sets forth the duty to use ordinary care. Therefore, plaintiff claims it was mandatory to give IPI Civil 2d Nos. 10.01, 10.02, and 10.04 in addition to IPI Civil 2d Nos. 105.01 and 105.02. We agree with plaintiff this argument is one of law and does not require a review of the record.

Plaintiff relies solely upon Thiele v. Ortiz (1988), 165 Ill. App. 3d 983, to support his position. In Thiele, the trial court gave IPI Civil 2d No. 10.01 along with IPI Civil 2d Nos. 105.01 and 105.02. The reviewing court affirmed the trial court, stating the instructions complemented each other, and, since the malpractice instruction includes the term “negligence,” the definition of negligence was necessary and proper. Thiele, 165 Ill. App. 3d at 995.

We point out Thiele did not involve IPI Civil 2d Nos. 10.02 and 10.04. Additionally, while we do not dispute plaintiff’s interpretation of Thiele, we note a different division of the same appellate court has recently espoused an opposing viewpoint. (See Roberts v. Sisters of St. Francis Health Services, Inc. (1990), 198 Ill. App. 3d 891, 903.) In Roberts, the trial court refused to submit IPI Civil 2d Nos. 10.01, 10.02 and 10.04 along with IPI Civil 2d Nos. 105.01 and 105.02. The reviewing court affirmed this decision stating, “[t]he trial court properly refused to use these instructions because they misstate the standard of care applicable to a physician in a malpractice suit.” (Roberts, 198 Ill. App. 3d at 903.) The court concluded, “[t]he refused instructions would have erroneously led the jury to believe that malpractice by a physician could be equated to negligence by a lay person.” Roberts, 198 Ill. App. 3d at 903.

We agree with the position adopted by the court in Roberts. IPI Civil 2d No. 105.01 informs the jury that a doctor must use ordinary care as defined by other doctors in similar circumstances. IPI Civil 2d No. 105.01 informs the jury that the failure to use ordinary care results in “a form of negligence that is called malpractice.” The important term in this instruction is “malpractice” as that is what plaintiff’s complaint is based upon. Malpractice is defined in IPI Civil 2d Nos. 105.01 and 105.02. A definition of negligence is wholly unnecessary in this situation. Additionally, the definition of negligence does not “complement” the definition of malpractice as found by the court in Thiele. IPI Civil 2d No. 10.01 sets forth a standard of care based on a reasonable person standard while IPI Civil 2d Nos. 105.01 and 105.02 set forth standards of care based on a reasonable doctor or reasonable specialist standard. These standards are vastly different. Furthermore, IPI Civil 2d Nos. 105.01 and 105.02 render IPI Civil 2d No. 10.04 unnecessary and duplicative as a physician’s duty to exercise ordinary care is included in IPI Civil 2d Nos. 105.01 and 105.02. We agree with the court in Roberts that, in a malpráctice case, it would be error to give IPI Civil 2d Nos. 10.01, 10.02 and 10.04. The trial court did not err by refusing to give these instructions.

Plaintiff next contends it was reversible error for the court to refuse to allow Dr. Moore, a treating physician not disclosed as a Rule 220 (134 Ill. 2d R. 220) expert, to give an opinion on the appropriate standard of care. Defendants again argue the record is insufficient for this court to find reversible error. We agree with defendants.

The party seeking reversal has the burden to establish prejudice. (Greene v. Rogers (1986), 147 Ill. App. 3d 1009, 1020.) A reversal based upon evidentiary rulings is not warranted unless the error was substantially prejudicial and affected the outcome of the trial. (Yassin v. Certified Grocers of Illinois, Inc. (1986), 150 Ill. App. 3d 1052, 1060.) Reviewing a discretionary evidentiary ruling necessitates an examination of the record to determine if substantial prejudice resulted. See Woodfield Ford, 77 Ill. App. 3d at 347; see also McNames v. Rockford Park District (1989), 185 Ill. App. 3d 291, 293.

Even if it was error to exclude Dr. Moore’s opinion testimony, we cannot, from the abbreviated record presented, determine the omission of Dr. Moore’s opinion testimony substantially prejudiced the plaintiff and affected the outcome of the trial.

Lastly, we address Dr. Eng’s contention on cross-appeal that the court erred in requiring him to pay for the inclusion in the record of certain requested transcripts of proceedings.

Supreme Court Rule 323(a) states “the appellee may serve on the appellant a designation of additional portions of the proceedings that the appellee deems necessary for inclusion in the report of proceedings.” (134 Ill. 2d R. 323(a).) Rule 323(a) also states that the appellant can make a motion in the trial court requesting the additional matter be included in the record only if the cost of inclusion is taxed to the appellee. 134 Ill. 2d R. 323(a).

Generally, the assessment of costs rests within the sound discretion of the trial court. (See Schuringa v. City of Chicago (1964), 30 Ill. 2d 504, 519; Demos v. Ericson (1982), 104 Ill. App. 3d 403, 405.) While we can find no authority specifically dealing with the assessment of costs pursuant to Rule 323, we see no reason to depart from this general principle. The additional evidence requested to be included in the record was not necessary to fully present the questions involved as argued by plaintiff on appeal per Supreme Court Rule 329. (134 Ill. 2d R. 329.) While it may have been necessary to establish prejudice and to resolve the issues in plaintiff’s favor, an appellant has every right to lose an appeal due to an insufficient record, without necessarily having to pay for the additional portion of the record designated by the appellee per Rule 323. We cannot determine the trial court abused its discretion by assessing the costs of the inclusion of the additional record to defendant.

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

Affirmed.

GEIGER and NICKELS, JJ., concur.


author: PRESIDING JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN L. BOOKER, Defendant-Appellant.
    Second District
    No. 2—89—1111
    Opinion filed June 6, 1991.
    G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Melvin L. Booker, was found guilty by a jury in the circuit court of Lake County of the offense of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19—1(a)) and was sentenced to a five-year term of imprisonment.

Defendant raises one issue on appeal: whether he was denied the effective assistance of counsel because his trial attorney failed to tender a jury instruction on the offense of criminal damage to property (Ill. Rev. Stat. 1989, ch. 38, par. 21—1(1)(a)).

Defendant was charged by information with committing the offense of burglary arising from defendant’s act of entering the Zion public works building without authority and with the intent to commit a theft therein on August 9, 1989. At trial, the State presented evidence that Zion police officers were summoned to the public works building at 1 a.m. on August 9, 1989, in response to a burglar alarm. An employee arrived and unlocked the gate to let the officers inside. A garage door which could only be opened from the inside was found open. The police officers entered the building, where they found defendant. He was placed into custody. The officers continued to search the building. One of the officers found a shoe print on a window sill by a broken window. The officers also discovered that desks had been pushed out of place, and other items were in disarray. In addition, a telephone and a typewriter, which had been on a desk when the building was locked earlier in the evening, were piled on a chair.

Defendant did not present any evidence. During the conference on instructions, defense counsel tendered an instruction on the offense of criminal trespass to land. The court refused to give the instruction because that offense was not a lesser included offense of burglary. See People v. Harman (1984), 125 Ill. App. 3d 338, 465 N.E.2d 1009.

Defendant contends on appeal that he was denied the effective assistance of counsel because defense counsel failed to tender an instruction for the offense of criminal damage to property (Ill. Rev. Stat. 1989, ch. 38, par. 21—1(1)(a)). To determine whether a defendant has been denied the effective assistance of counsel, reviewing courts use the two-part test established in Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064, and followed by our supreme court in People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246, 1255: (1) defense counsel’s representation of defendant must have fallen below an objective standard of reasonableness; and (2) counsel’s shortcomings must be so serious as to have deprived the defendant of a fair, reliable trial.

Defendant, citing People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413, argues that counsel’s failure to offer the instruction constituted reversible error. According to defendant, he was entitled to an instruction on his theory of the case, including an instruction defining a lesser included offense. (See Keeble v. United States (1973), 412 U.S. 205, 208, 36 L. Ed. 2d 844, 847, 93 S. Ct. 1993, 1995.) Defendant asserts that, because there was evidence that a window was broken, there was evidence indicating that he committed the offense of criminal damage to property. Defendant concludes that, as defense counsel failed to tender the instruction, the jury was not able to find him guilty of the lesser included offense.

Defendant would be correct if criminal damage to property were a lesser included offense of burglary. We agree with the State, however, that under the statutory definition of the offenses, criminal damage to property is not a lesser included offense of burglary, as not all of the elements of the former offense are also elements of the latter offense. People v. Roberts (1989), 189 Ill. App. 3d 66, 74, 544 N.E.2d 1340; People v. Fico (1985), 131 Ill. App. 3d 770, 773, 476 N.E.2d 47; People v. Vasquez (1981), 97 Ill. App. 3d 1142, 1143, 424 N.E.2d 42.

Nor do we believe defendant was entitled to an instruction on criminal damage to property as a lesser offense of burglary under the test set down in People v. Dace (1984), 104 Ill. 2d 96, 470 N.E.2d 993, later followed in People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413. In Dace, while expressly rejecting the “inherent relationship” test, our supreme court stated that, where the information charges residential burglary with intent to commit a theft and the evidence would support a conviction of theft, a defendant is entitled to an instruction on the lesser offense, even though it is not an included offense. (Dace, 104 Ill. 2d at 103, 470 N.E.2d at 996.) In Bryant, where the charge was attempted burglary and the defendant sought an instruction on criminal damage to property, the court followed Dace, explaining that “the lesser offense must have a broad foundation in the instrument charging the greater” offense. Bryant, 113 Ill. 2d at 505, 499 N.E.2d at 416.

However, subsequently in People v. Schmidt (1988), 126 Ill. 2d 179, 533 N.E.2d 898, our supreme court held that where an accused is charged with a single offense, he cannot be found guilty of an offense not charged unless it is a lesser included offense. (Schmidt, 126 Ill. 2d at 183, 533 N.E.2d at 900.) The court reiterated the State constitutional protection against double jeopardy as the basis of this rule, since an accused may not be convicted of both the greater and lesser included offense based on the same act. (Schmidt, 126 Ill. 2d at 184, 533 N.E.2d at 900.) The court found that the defendant could not be convicted of theft because the information only charged the offense of residential burglary, and theft is not a lesser included offense of residential burglary. The court stated the following:

“In concluding that where an accused is charged with a single offense he cannot be found guilty of an offense not charged unless it is a lesser included offense, we are not unaware of People v. Dace [citation]. We would observe that in Dace the fundamental question just stated was not presented to or considered by the court.” Schmidt, 126 Ill. 2d at 184-85, 533 N.E.2d at 901.

The State cites the recent opinion of the Appellate Court for the Fourth District, People v. Johnson (1990), 206 Ill. App. 3d 318, 564 N.E.2d 232, which concluded that Schmidt is irreconcilable with Dace and Bryant because the Schmidt holding was based on “the fundamental principle that one charged with a single offense cannot be found guilty of an uncharged offense unless it is an included offense of the charged offense.” Johnson, 206 Ill. App. 3d at 320, 564 N.E.2d at 234; see also People v. Schnurr (1990), 206 Ill. App. 3d 522, 536, 564 N.E.2d 1336 (Reinhard, J., specially concurring).

We agree with the court in Johnson. Based on the above-quoted comment, we believe that the supreme court in Schmidt stated the sole issue presented in Dace was whether the inherent relationship test was valid under Illinois law and was not asked to consider the double jeopardy ramifications of a conviction of an uncharged offense. We interpret Schmidt as holding that the court in Dace had not been presented with the issue whether an accused charged with a single offense can be found guilty of an uncharged offense which is not a lesser included offense. Thus, the Schmidt rule must be followed when a court is presented with the issue of whether an instruction on a lesser uncharged offense should be given. We, therefore, conclude that, according to Schmidt, a defendant cannot be convicted of an uncharged offense which is not a lesser included offense.

In the instant case, as criminal damage to property is not a lesser included offense of burglary, trial counsel was not ineffective for his failure to tender an instruction on criminal damage to property.

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

Affirmed.

INGLIS and UNVERZAGT, JJ., concur.


author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES C. FINKLE, Defendant-Appellant.
    Second District
    No. 2—89—0417
    Opinion filed June 6, 1991.

      G. Joseph Weller and Barbara R. Paschen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Daniel A. Fish, State’s Attorney, of Dixon (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, James C. Finkle, appeals from an order denying the relief sought in an application showing recovery filed by him pursuant to section 9 of the Sexually Dangerous Persons Act (Act) (Ill. Rev. Stat. 1989, ch. 38, par. 105—9). Defendant contends that he was denied due process of law when the trial court refused to appoint an independent psychiatrist to examine him. The State argues that no such right exists under section 9.

Defendant was found to be a sexually dangerous person under the Act in 1985 and was committed to the Menard Psychiatric Center, a maximum-security institution operated by the Illinois Department of Corrections (Department) pursuant to section 8 of the Act (Ill. Rev. Stat. 1985, ch. 38, par. 105—8). In 1989, defendant filed an application showing recovery in which he alleged he had corrected and learned to control his unwanted desires that led to his commitment. Defendant also sent the court a letter in which he requested the court to appoint an “outside” psychiatrist to see him as he had no money or finances to pay for one. The trial court denied this request and set a date for a hearing. At the hearing, defendant requested only a conditional release to stay at a different facility and to continue counseling. (See People v. Cooper (1989), 132 Ill. 2d 347, 352 (Cooper II) (regarding conditional releases).) The court looked to the only evidence in the record, the socio-psychiatric report, in which the psychiatrist at Menard wrote he could find no evidence to demonstrate that defendant was no longer dangerous. The trial court then denied defendant’s application, and he appeals.

Defendant argues that notions of due process require that an independent psychiatrist be appointed for an indigent applicant applying for release from commitment. During a section 9 hearing, the trial court considers the socio-psychiatric report prepared pursuant to the Act by the psychiatrist, sociologist, psychologist and warden of the institution in which the applicant is confined, as well any other relevant information submitted by or on behalf of the applicant. (Ill. Rev. Stat. 1989, ch. 38, par. 105—9; People v. Cooper (1990), 199 Ill. App. 3d 985, 987-88 (Cooper III).) Testimony or reports of other psychiatrists are often a key part of the court’s determination. (See Cooper, 199 Ill. App. 3d at 988-89.) The burden is on the defendant to prove he is no longer a danger to society in order for the court to order a release or discharge. (People v. Hannan (1989), 184 Ill. App. 3d 937, 944.) Defendants often have court-appointed psychiatrists. (Cooper, 199 Ill. App. 3d at 988; Hannan, 184 Ill. App. 3d at 940.) While the Act provides that the court shall appoint two psychiatrists to examine a defendant during the initial commitment proceedings (Ill. Rev. Stat. 1989, ch. 38, par. 105—4), there is no provision requiring a court to appoint a psychiatrist in a recovery proceeding. Defendant contends that since he is indigent, he will be denied key evidence to support his belief that he has recovered.

In a case cited by neither defendant nor the State, our supreme court has already issued an opinion relevant to this matter. Speaking of the defendant’s request for relief under section 9 of the Act, the court stated:

“Defendant also seeks fees with which to hire an independent psychiatrist. There is no provision in the act entitling him to the services of an independent psychiatrist and we do not believe that such services are necessary to protect defendant’s rights. There has been no showing that the psychiatrists employed by the Department of Mental Health and the Department of Public Safety will not give an honest and unprejudiced opinion of the defendant’s mental condition ***.” (People v. Capoldi (1967), 37 Ill. 2d 11, 18-19 (Capoldi II).)

We must determine whether, in light of recent opinions of the United States Supreme Court, the holding of Capoldi II is still valid.

Defendant bases his due process argument on the decision of the Supreme Court in Ake v. Oklahoma (1985), 470 U.S. 68, 84 L. Ed. 2d 53, 105 S. Ct. 1087. In Ake, the defendant was charged with the crime of first degree murder and shooting -with intent to kill. Upon arraignment, defendant’s bizarre courtroom behavior caused the judge to appoint a psychiatrist to examine defendant for competency to stand trial. The examining psychiatrist found defendant incompetent, and he was committed to the State mental hospital. When defendant recovered and the criminal proceedings resumed, defendant’s attorney informed the court that he would raise an insanity defense and requested a psychiatric evaluation at the State’s expense to determine defendant’s mental state at the time of the crimes. The trial court denied such evaluation. At the guilt phase of the ensuing trial, the examining psychiatrist offered no testimony as to defendant’s sanity at the time of the offense. The jury rejected the insanity defense and convicted defendant of all charges. During the sentencing hearing, the State relied on the examining psychiatrist’s testimony to establish the likelihood of defendant’s future, dangerous behavior. Defendant, who had no expert witnesses to rebut this testimony or give evidence in mitigation, was sentenced to death. On appeal, the Supreme Court ruled that when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist’s assistance on this issue if the defendant cannot otherwise afford one. (Ake, 470 U.S. at 74, 84 L. Ed. 2d at 60, 105 S. Ct. at 1091-92.) This court has recently acknowledged this principle. People v. Kegley (1988), 175 Ill. App. 3d 335, 340-41, citing Ake v. Oklahoma (1985), 470 U.S. 68, 74, 84 L. Ed. 2d 53, 60, 105 S. Ct. 1087, 1091-92.

The Ake court emphasized the well-established concept that, when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the fourteenth amendment’s due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of poverty, a defendant is denied the opportunity to participate meaningfully in a judicial process in which his liberty is at stake. (Ake, 470 U.S. at 76, 84 L. Ed. 2d at 61, 105 S. Ct. at 1092.) The principle of meaningful participation had previously been extended to a “quasi-criminal” proceeding in Little v. Streater (1981), 452 U.S. 1, 68 L. Ed. 2d 627, 101 S. Ct. 2202, where the court held that in a paternity action the State cannot deny the putative father blood-grouping tests if he cannot otherwise afford them.

To implement the principle of meaningful participation, the focus is on identification of the “ ‘basic tools of an adequate defense or appeal.’ ” (Ake, 470 U.S. at 77, 84 L. Ed. 2d at 62, 105 S. Ct. at 1093, quoting Britt v. North Carolina (1971), 404 U.S. 226, 227, 30 L. Ed. 2d 400, 403, 92 S. Ct. 431, 433.) Three factors are relevant in determining if the indigent’s request involves those basic tools which the due process guarantee of fundamental fairness requires for an adequate defense or appeal. The first is the private interest that will be affected by the action of the State; the second is the government’s interest that will be affected if the safeguard is to be provided; the third is the probable value of the additional or substitute safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if the safeguards are not provided. Ake, 470 U.S. at 78-79, 84 L. Ed. 2d at 62, 105 S. Ct. at 1093-94.

With respect to the first part of Ake’s three-part test, the private interest in the accuracy of a proceeding that places an individual’s liberty at risk is compelling. (Ake, 470 U.S. at 76, 84 L. Ed. 2d at 61, 105 S. Ct. at 1093.) While a proceeding under the Sexually Dangerous Persons Act is not a criminal proceeding but civil (Allen v. Illinois (1986), 478 U.S. 364, 375, 92 L. Ed. 2d 296, 308, 106 S. Ct. 2988, 2994), a defendant’s liberty interest is still at stake. The Act otherwise recognizes the importance of mandating procedural safeguards usually found in criminal trials, such as the right to counsel, the right to confront and cross-examine witnesses, and the right to be found dangerous beyond a reasonable doubt. (Ill. Rev. Stat. 1989, ch. 38, pars. 105-3.01, 105-5; Allen, 478 U.S. at 371, 92 L. Ed. 2d at 306, 106 S. Ct. at 2993; People v. Davis (1984), 127 Ill. App. 3d 49, 60; see also In re Nau (1991), 209 Ill. App. 3d 805.) A proceeding under the Act differs from a civil commitment and requires more procedural safeguards.

Our supreme court in Capoldi II also expresses concern that no unnecessary roadblock should frustrate a defendant committed under the Act in his sole route to freedom, i.e., a petition under section 9 of the Act (Capoldi, 37 Ill. 2d at 18). A defendant can spend years incarcerated without a sufficient hearing. (People v. Abney (1967), 90 Ill. App. 2d 235, 238.) Accordingly, in considering A Zee’s first two factors, we recognize that the interest of the individual in the correct outcome of the proceeding is greater than the interest of the State in denying the appointment of a psychiatrist, an interest which we perceive to be related to the increased costs and complexity of such proceedings. However, as we discuss below, provision of psychiatric assistance sought by a defendant is not mandated by Ake where the value of the additional evidence generated is low or speculative. People v. Henderson (1990), 142 Ill. 2d 258, 343-44.

We next examine the third factor of Ake, i.e., the probable value of the psychiatric assistance sought and the risk of error if the assistance is not offered. The State contends that the professionals available at the institution where defendant is confined provide diagnoses which are untainted by their employment because of the nature of their professional and fiduciary relationship with their patients. The State also asserts that the treating psychiatrists are in the best position to know if the patient has recovered. Thus, the State argues that the defendant cannot show there is a substantial risk of an unreliable result if another psychiatrist is not supplied. Defendant maintains it is unfair that he must rely upon evidence supplied by the State as his sole evidence, other than his own ineffectual statements, that he has recovered. We believe the Act itself contains adequate safeguards for defendant’s rights.

In People v. Sweeney (1969), 114 Ill. App. 2d 81, we held that the socio-psychiatric report completed by the institution’s professionals pursuant to the statute had inherent guarantees of trustworthiness and that the findings and opinions of these persons are important in the determination of recovery. Thus, the report is admissible even when the professionals are unavailable to appear in court. (Ill. Rev. Stat. 1989, ch. 38, par. 105—9; Sweeney, 114 Ill. App. 2d at 87; see Cooper, 199 Ill. App. 3d at 988.) In our view, under the Act, a committed defendant has the aid of well-qualified experts. The Department has superior resources and expertise to deal with sexually dangerous persons. These experts, of course, are most knowledgeable about a defendant’s problems and progress toward recovery. (People v. Parrott (1982), 108 Ill. App. 3d 222, 226.) Thus, the State has made available a system for the defendant to obtain psychiatric assistance as part of his recovery hearing.

In Granviel v. Lynaugh (5th Cir. 1989), 881 F.2d 185, which involved a trial for capital murder, a defendant whose sanity was likely to be a significant factor requested the court to appoint a psychiatrist to assist him in his defense and that such expert be unavailable to the prosecution or the court. State law required disclosure to all parties of an appointed psychiatrist’s report. Defendant’s request for appointment of an independent expert was denied, although the court did appoint a disinterested expert whose report pursuant to State law would be available to prosecution and defense alike. On appeal, the court stated “[w]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or receive funds to hire his own.” (Granviel, 881 F.2d at 191-92.) The trial court was affirmed.

In the case sub judice, defendant’s request for appointment of a psychiatrist alleged no particular facts which might indicate that the examining and treating doctors employed by the custodial institution would not fairly and objectively render him assistance for purposes of his recovery hearing under section 9. As noted previously, for purposes of such hearing, defendant has the right to appointment of counsel if he is indigent and the right to a jury trial. The right to appointment of counsel is an important tool for uncovering and presenting information to the trial court which could require the appointment of a psychiatrist pursuant to the third part of the A/ce test.

Under the facts presented we find the trial court’s denial of defendant’s request for appointment of a psychiatrist to assist him in his recovery hearing does not pose a substantial risk of an erroneous result and, therefore, does not deny him due process of law.

For the reasons set forth above, the judgment of the circuit court of Lee County is affirmed.

Affirmed.

GEIGER and McLAREN, JJ., concur.


text:
      In re C.K., a Minor (Gail Kaplan, Petitioner-Appellee, v. The People of the State of Illinois, Respondent-Appellant).
    Second District
    No. 2—90—0591
    Opinion filed June 6, 1991.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Deborah W. Owens and Susan Einspar-Wayne, both of Oak Park, for appellee.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

During the course of proceedings under the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1989, ch. 37, par. 801—1 et seq.), the circuit court of Lake County entered an order directing the State to pay attorney fees to petitioner, Gail Kaplan, who was subpoenaed as a witness in the proceedings. The State appeals.

The sole issue presented on appeal is whether the trial court’s award of attorney fees was authorized by Supreme Court Rule 137 (134 Ill. 2d R. 137).

These proceedings commenced when the State filed a petition for an adjudication of the wardship of C.K., a minor. The petition alleged that C.K. was dependent as a result of his mother’s physical or mental disabilities. During the pendency of the action, the circuit court ordered a mental health examination of C.K. and his mother. The court ordered C.K.’s mother to sign a release so that the examination results would be provided to the court. Subsequently, C.K.’s mother underwent psychological testing and evaluation by Dr. Gail Kaplan. A hearing on the State’s wardship petition was set, and subpoenas were issued to several witnesses, including Dr. Kaplan.

Dr. Kaplan responded with a motion to quash the subpoena served on her and a motion for a protective order. She alleged that she had not been paid any witness or mileage fees, that she had not been assured that her professional fee for testifying would be paid, and that the information about which she was requested to testify was privileged under the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1989, ch. 91½, par. 801 et seq.). Dr. Kaplan requested, inter alia, an award of the attorney fees and costs she incurred in bringing her motions.

Following a hearing on Dr. Kaplan’s motions, the court determined that the examination was court ordered and that C.K.’s mother had signed a release. The court did, however, order that the records be sealed after the hearing. The court also granted Dr. Kaplan’s motion for statutory witness and mileage fees and for expert witness fees and ordered the State’s Attorney’s office, as the entity which had issued the subpoena, to pay those fees. The issue of attorney fees was reserved.

The State subsequently elected not to call Dr. Kaplan as a witness at the wardship hearing. C.K. was found to be a neglected minor, and he was made a ward of the court. His mother’s motion to vacate the adjudication of wardship was denied.

Subsequently, Dr. Kaplan filed a petition for attorney fees in which she alleged that she had incurred $675 in attorney fees in this matter, including the cost of the fee petition itself. Following a hearing, the court determined that the State’s Attorney’s office should pay $400 toward Dr. Kaplan’s attorney fees as a result of its “failure to serve Dr. Kaplan with the proper mileage/witness fee pursuant to Supreme Court Rule 237(a) and failure to serve Dr. Kaplan proper notice of waiver of confidentiality, etc., to prevent her need to seek a protective order.”

The State filed a motion to reconsider the fee award on the basis that the award was unauthorized by statute and not agreed upon by the parties. The trial court denied the motion and also determined that the order awarding fees would not be automatically stayed pending appeal because more than 30 days had passed since the order was entered.

On appeal, the State contends that attorney fees may be awarded only where they are expressly authorized by statute or by agreement of the parties. (See Saltiel v. Olsen (1981), 85 Ill. 2d 484, 488, 426 N.E.2d 1204.) Clearly, there was no agreement for fees in the instant case, nor does the Juvenile Court Act provide for such fees. Dr. Kaplan contends, however, that the attorney fees were awarded pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137) as a sanction for the State’s violation of the subpoena requirements.

We initially point out that the trial court never specified the authority pursuant to which it awarded attorney fees. Similarly, Rule 137 was never asserted as the basis of Dr. Kaplan’s request for fees prior to appeal. Given the language and tenor of the court’s order, however, it appears that the fees were awarded as a sanction. A judgment may be sustained upon any grounds warranted (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9), so we will examine whether the trial court’s award of attorney fees in the instant case is authorized by Rule 137.

Rule 137 provides, in pertinent part, as follows:

“Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record ***. A party who is not represented by an attorney shall sign his pleading, motion, or other paper ***. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by *** law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. *** If a pleading, motion, or other paper is signed in violation of this rule, the court *** may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party *** the amount of reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney fee.” (Emphasis added.) 134 Ill. 2d R. 137.

We conclude that there is no basis for the application of Rule 137 to the allegedly improper issuance of a subpoena to a witness. A subpoena is not a “paper of a party” because it is issued by the circuit clerk, albeit at the request of a party. Further, a subpoena is not signed by a party or a party’s attorney; it is signed by the circuit clerk, although the attorney’s name, in this case the assistant State’s Attorney’s, appears on the paper. Rule 137 applies where a “a pleading, motion, or other paper is signed in violation of” the rule (emphasis added) (134 Ill. 2d R. 137) and does not apply where no pleading, motion or other paper is signed (see International Amphitheatre Co. v. Vanguard Underwriters Insurance Co. (1988), 177 Ill. App. 3d 555, 572-73, 532 N.E.2d 493 (referring to Ill. Rev. Stat. 1987, ch. 110, par. 2—611, the statutory predecessor of Rule 137)). It does not provide a sanction against all asserted violations of court rules and for all acts of professional misconduct of an attorney. (See Tabor & Co. v. Gorenz (1976), 43 Ill. App. 3d 124, 132, 356 N.E.2d 1150.) Finally, while the rule allows for an award of attorney fees “to the other party,” it is not clear that nonparties to the action may seek attorney, fees as a sanction. >■ ,

Rule 137, therefore, does not authorize the imposition of sanctions in the instant case, so we need not examine the parties’ arguments as to whether there was good cause for the issuance of an award pursuant to Rule 137. The only other basis for the imposition of such a sanction urged by Dr. Kaplan is her assertion that the conduct of the assistant State’s Attorney was contemptuous. However, the trial court did not find the assistant State’s Attorney in contempt, so the fee award cannot be construed as a sanction imposed for contempt.

Finding no basis for an award of attorney fees in the instant case, the order of the circuit court assessing attorney fees against the State must be reversed.

The order of the circuit court of Lake County is reversed.

Reversed.

INGLIS and UNVERZAGT, JJ., concur.