author: JUSTICE WHITE

text:
    ROBERT R. KRAUSE, Plaintiff-Appellant, v. PEKIN LIFE INSURANCE COMPANY, Defendant-Appellee (Koenning Insurance Company, Inc., et al., Defendants).
    First District (3rd Division)
    No. 1—88—0984
    Opinion filed February 21, 1990.

      Drumke & Patterson, Ltd., of Chicago (Robert B. Patterson, of counsel), for appellant.
    Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Robert J. Franco, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, Robert Krause, appeals from an order of the circuit court granting defendant’s motion for judgment filed at the close of plaintiff’s case.

In October 1981, plaintiff filed this action against defendants Pe-kin Life Insurance Co. (Pekin) and Koenning Insurance Agency (Koenning). Plaintiff alleged in his complaint that on October 24, 1979, he signed an application for disability insurance prepared by Joseph Haverstuhl, an employee of Koenning; that at the time he signed the application, it provided for a monthly benefit of $1,000 and a monthly premium of $56.40; that on January 9, 1980, he became totally disabled; and that in February 1981, Haverstuhl advised him that Pekin had refused to issue a policy with a $l,000-a-month benefit and had instead issued a policy with an $800-a-month benefit. Plaintiff further alleged that Haverstuhl, acting as an agent for Pekin, fraudulently altered the application to reflect an $800-a-month benefit and requested both specific performance of the original application and punitive damages in the amount of $500,000.

At trial, plaintiff testified that in 1979, he had known Joseph Haverstuhl for eight years, that he considered Haverstuhl a friend, and that Haverstuhl frequently visited him at his home. Plaintiff stated that on October 24, Haverstuhl came to plaintiffs house to talk about disability insurance. After discussing plaintiffs finances, Haver-stuhl suggested that a $l,000-a-month benefit would be sufficient. Plaintiff stated that Haverstuhl filled out the application to reflect the $l,000-a-month benefit and that he paid Haverstuhl the first monthly premium of “$55 and some change.” Plaintiff testified that future monthly premiums would be paid by Haverstuhl in exchange for typing services rendered by plaintiff’s wife.

Plaintiff further testified that in the first week of December 1979, he had a physical examination as required by the insurance company, and that in the following week, Haverstuhl told him that plaintiff had passed his physical and his application had been accepted. Plaintiff stated that at that time, Haverstuhl said nothing else about the policy.

Plaintiff testified that after he was injured in January 1980, he contacted Haverstuhl, who gave him the necessary claim forms and a copy of the policy. Plaintiff testified that when he received the policy, he noticed that the amount of the monthly benefit on the application form had been changed from $1,000 to $800; however, he was told by Haverstuhl that a supplemental policy would be issued. Plaintiff further testified that he received no disability payments in January or February, and that on March 7, he was contacted by Haverstuhl, who told plaintiff that he needed a check from plaintiff, payable to Pekin, in the amount of $136.65. In exchange for the check, Haverstuhl gave plaintiff $100 in cash and told him he would give him the other $36 later.

On March 12, plaintiff received a check from Pekin in the amount of $1,600, representing disability benefits for January and February. Since that time, plaintiff has been receiving monthly benefits in the amount of $800 a month.

Scott Martin, an underwriter for Pekin, was called as an adverse witness by plaintiff. Martin testified that in November 1979, he received plaintiff’s application for disability insurance and that the application was for a monthly benefit of $800. Martin testified that the $800 amount appeared to have been written over another figure, that it was not unusual for Pekin to receive applications containing scribblings or items written over or crossed out, and that it was not Pe-kin’s practice to independently investigate such items. Martin further testified that after reviewing the application, he concluded that, based on his salary, plaintiff was eligible only for a $700 monthly benefit; but after Martin discussed the matter with Ronnie Fry, his supervisor, it was decided that plaintiff would be given the $800 monthly benefit.

Martin testified that, although no premium was received with the application, the policy was issued and returned to Koenning in December 1980. Martin further testified that in January 1980, the file was returned to him because no premiums had been received. Martin stated that after receiving no response to Pekin’s request for payment, he began the process of cancelling the policy. Subsequently, Martin was notified that a claim had been made under the policy and that the agent, Joseph Haverstuhl, had collected the premium and failed to forward it to Pekin.

Martin also testified that insurance agents who submit applications to Pekin have no power to bind the company and that only an underwriter could determine whether an application would be accepted and a policy issued.

Joseph Haverstuhl testified that in 1979 he was a “life manager” for Koenning. Haverstuhl testified that Koenning was a registered insurance agent for Pekin and that, under that agency, he sold and solicited policies for Pekin. Haverstuhl further testified that he himself did not have an agency relationship with Pekin and that he did not have the power to bind Pekin to a policy.

Haverstuhl also testified that at the time he sold the Pekin policy to plaintiff he could have submitted an application for disability insurance on plaintiff’s behalf to other companies, but those companies were “restrictive in their offers” and, in his opinion, Pekin was the only company that would have accepted an application at the desired level of benefits.

Haverstuhl testified that he first discussed insurance with plaintiff’s wife, Linda, who asked him about automobile and homeowner’s insurance. Subsequently, Haverstuhl sold insurance policies to plaintiff and his wife covering their cars and home. Haverstuhl testified that some time later, in August or September of 1979, he performed an “insurance review” for plaintiff and his wife, and as a result of that review, he and plaintiff entered into a discussion of disability insurance. Haverstuhl stated that plaintiff expressed concern about being able to take care of utility and food bills in the event he became disabled.

On October 24, 1979, Haverstuhl filled out the application in question for plaintiff. Haverstuhl testified that he filled in $1,000 as the monthly benefit and an amount in excess of $50 as the monthly premium. Haverstuhl further testified that either he or Scott Martin changed the monthly benefit to $800 and the premium amount to $45.46 after it was discovered that Haverstuhl had miscalculated the benefits to which plaintiff was entitled. Haverstuhl testified that sometime between October 24 and November 7, he informed plaintiff’s wife and then plaintiff about the miscalculation and the reduction of the benefits to $800.

Haverstuhl also testified that he considered plaintiff his client and that when he submitted the application to Pekin and when he interceded with Pekin’s claims department, he was acting on plaintiff’s behalf.

After Haverstuhl’s testimony, plaintiff introduced several documents into evidence, including certified copies of certain Department of Insurance records. Plaintiff then called Ronnie Fry, vice-president at Pekin, as an adverse witness.

Fry testified that in 1979 he was chief underwriter at Pekin. At that time, it was Pekin’s policy to return applications for an applicant’s approval only when someone at the company made a change in the application. Fry further testified that it was not unusual for Pe-kin to receive applications containing figures that had been scratched out or written over and that there was no requirement that such applications be returned for the applicant’s signature.

Fry also testified that when he received plaintiff’s application, it contained a request for a monthly benefit of $800, that he overruled Scott Martin’s decision to reduce the benefit to $700, and that the next contact he had with the application was in February or March 1980, when he learned that a claim had been made and that the policy had been cancelled because no premium had been received. According to Fry, the policy was reinstated when Pekin was informed by Koenning that Joseph Haverstuhl had collected a quarterly premium in January 1980 and failed to remit it.

It was also Fry’s testimony that Pekin had an agency agreement with Koenning, that no agency agreement existed between Pekin and Haverstuhl, that the commission on plaintiff’s policy would be paid to Koenning, that Koenning was authorized to collect the premiums on plaintiff’s policy, and that it was Koenning that Pekin notified when questions arose about the payment of the premiums. Fry also testified that under the agency agreement, no agent had the power to bind Pekin to a policy of insurance and that there were no exceptions to this rule.

Linda Krause testified that she was present on October 24, 1979, when the insurance application was filled out, that the monthly benefit requested was $1,000, and that the monthly premium of approximately $55 was paid in advance. Linda Krause also testified that in December 1979, Haverstuhl telephoned to inform her that the application had been accepted. Linda Krause stated that when Haverstuhl delivered the policy in February 1980, she noticed that the monthly benefit had been changed from $1,000 to $800 and that the box showing that a monthly premium of $55 had been paid had been changed to indicate that the premium was $45 and would be paid COD.

At the close of plaintiff’s case, Pekin presented a motion for judgment. After hearing arguments, the court ruled that the proof had to be clear and convincing and because plaintiff had failed to meet that standard, judgment would be entered for Pekin. This appeal followed.

Under section 2 — 1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1110), in all cases tried without a jury, a defendant may, at the close of the plaintiff’s case, move for a finding or judgment in his or her favor; in ruling on the motion, the court shall weigh the evidence, considering the credibility of the witnesses and the weight and quality of the evidence. On appeal, the decision of the trial court should not be reversed unless it is contrary to the manifest weight of the evidence. Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 407 N.E.2d 43; City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill. 2d 40, 349 N.E.2d 399.

The Illinois Supreme Court has held that section 2 — 1110 requires a determination of whether a plaintiff has presented a ‘prima facie case, i.e., whether he has presented at least some evidence on every element essential to his cause of action. If he has not, defendant is entitled to judgment in his favor. Kokinis, 81 Ill. 2d at 154.

In an action for specific performance, the existence of the contract that a plaintiff seeks to enforce and the terms thereof must be established by clear, explicit, and convincing evidence. (Monahan v. Monahan (1958), 14 Ill. 2d 449, 153 N.E.2d 1; Wolford v. James E. Rolls Investment Co. (1978), 61 Ill. App. 3d 405, 377 N.E.2d 1314; In re Estate of Holder (1976), 42 Ill. App. 3d 35, 355 N.E.2d 333.) In the present case, the trial court concluded that plaintiff failed to establish by clear and convincing evidence that there existed a contract for a monthly benefit of $1,000. We agree.

Plaintiff’s argument on appeal that he clearly and convincingly established the existence of a contract for a monthly benefit of $1,000 turns on his contention that, at all times, Joseph Haverstuhl was acting as agent for Pekin. Plaintiff claims that because Haver-stuhl was Pekin’s agent, his actions were sufficient to bind Pekin to a contract for disability benefits of $1,000 a month. Plaintiff bases his contention that Haverstuhl was Pekin’s agent, in part, on the Department of Insurance records that were admitted into evidence. Plaintiff argues that these records establish conclusively that, in 1979, Haverstuhl was an authorized agent for Pekin.

Plaintiff correctly argues that records such as the ones in question generally are admissible. All records and reports prepared by public officials pursuant to a duty imposed by law or required by the nature of their offices are admissible as proof of facts stated therein so far as they are relevant and material to a particular inquiry. (Department of Conservation v. First National Bank (1976), 36 Ill. App. 3d 495, 344 N.E.2d 11.) However, it has long been the law that a court is not required to receive proof offered in such form that its materiality cannot be determined. Bradley v. Western Casket & Undertaking Co. (1914), 185 Ill. App. 375.

In the present case, the Department of Insurance records were admitted without any testimony to explain their meaning or assist in interpreting the entries, and despite plaintiff's claim that they state so conclusively, we cannot determine from the records that Haverstuhl was a registered insurance agent for Pekin when he sold the policy to plaintiff. Further, even if we were able to conclude from the records that Haverstuhl was a registered agent for Pekin, we would not be required to find that Haverstuhl was acting as Pe-kin’s agent, rather than as a broker, at the time of the transaction.

A broker is an individual who procures insurance and acts as a middleman between the insured and the insurer, who solicits insurance business from the public under no employment from any special company and who, having secured an order, places the insurance with the company selected by the insured, or in the absence of any selection by the insured, with a company he selects himself. (Galiher v. Spates (1970), 129 Ill. App. 2d 204, 206, 262 N.E.2d 626.) An agent is an individual who has a fixed and permanent relation to the companies he represents and who has certain duties and allegiances to such companies. (Galiher, 129 Ill. App. 2d at 207.) It is a person’s conduct, rather than his title, which is determinative of whether he serves as the agent of an insurance company or as the broker for an applicant for insurance in a particular transaction. (DeGraw v. State Security Insurance Co. (1976), 40 Ill. App. 3d 26, 351 N.E.2d 302.) Therefore, a court must examine the facts of a case closely to determine whether a seller of insurance is an agent or a broker and to whom he may owe a duty. (Browder v. Hanley Dawson Cadillac Co. (1978), 62 Ill. App. 3d 623, 379 N.E.2d 1206.) Factors to be considered include who first set the individual in motion, who could control his action, who was to pay him, and whose interest he was there to protect. (Browder, 62 Ill. App. 3d at 629; Moone v. Commercial Casualty Insurance Co. (1953), 350 Ill. App. 328, 112 N.E.2d 626.) After examining the facts before us in the present case, we find that Haverstuhl’s actions were those of a broker for the plaintiff and not those of an agent for Pekin.

Joseph Haverstuhl and Ronnie Fry testified that Haverstuhl was not an agent for Pekin; and Haverstuhl, Fry, and Scott Martin testified that Haverstuhl had no authority to bind Pekin to a policy of insurance. In addition, it was Haverstuhl’s uncontradicted testimony that at the time he sold the policy to plaintiff, he could have submitted an application for disability insurance on plaintiff’s behalf to other companies but he chose Pekin because, in his opinion, it was the only company that would have provided the desired level of benefits.

Haverstuhl also testified that he considered plaintiff his client and that his actions were on plaintiff’s behalf. That plaintiff was Haverstuhl’s client is supported by plaintiff’s testimony that he and Haverstuhl had been friends for eight years and that Haverstuhl agreed to pay the premium on plaintiff’s disability policy in exchange for typing services rendered by Linda Krause. It is also supported by the testimony concerning Haverstuhl’s actions in getting the policy reinstated after it was cancelled. We believe that these facts clearly support a conclusion that Haverstuhl’s allegiance was to plaintiff, and not to Pekin.

In conclusion, we find that Joseph Haverstuhl was not acting as an agent for Pekin; that, therefore, he had no authority to accept or enter into a contract on Pekin’s behalf, and that the trial court correctly concluded that plaintiff failed to establish by clear and convincing evidence that there existed a contract for disability benefits of $1,000 a month.

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

Affirmed.

CERDA, P.J., and RIZZI, J., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY MONDHINK, Defendant-Appellant.
    Fifth District
    No. 5—88—0360
    Opinion filed February 23, 1990.

      Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, and Kelly D. Long, of Kelly D. Long Law Office, of Hillsboro, for appellant.
    Kathryn Dobrinic, State’s Attorney, of Hillsboro (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court;

Defendant, Gary Mondhink, was convicted of driving while license revoked (Ill. Rev. Stat. 1987, ch. 95^2, par. 6 — 303(d)) and sentenced to three years’ imprisonment after a jury trial. Defendant appeals from the judgment and sentence of the circuit court of Montgomery County.

Section 6 — 303(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 6 — 303(d)): “[a]ny person convicted of a second or subsequent violation of this Section shall be guilty of a Class 4 felony if the original revocation or suspension was for a violation of Section 11— 401 [leaving the scene of an accident involving death or personal injuries] or 11 — 501 [driving under the influence] of this Code, or a similar provision of a local ordinance, or a violation of Section 9 — 3 of the Criminal Code of 1961, as amended, relating to the offense of reckless homicide.” Defendant Mondhink had prior convictions for driving while under the influence of alcohol and for driving while license revoked. At trial, over defendant’s objection, the State introduced as evidence the information charging defendant with driving under the influence of alcohol, defendant’s jury waiver and plea of guilty to the charge, the judgment and sentence order on the plea of guilty to the charge, and the order of revocation certified by the Secretary of State. Also admitted into evidence over defendant’s objection were the previous information charging defendant with driving while license revoked, defendant’s jury waiver and plea of guilty, and the judgment and sentence order on the plea of guilty to the charge of driving while license revoked. On appeal defendant argues that the trial court erred in admitting such evidence. Defendant also argues that it was error for the court to give jury instructions which included references to defendant’s prior convictions.

In People v. Smith (1987), 162 Ill. App. 3d 739, 516 N.E.2d 335, the defendant was convicted of violating section 6 — 303(d) of the Illinois Vehicle Code. On appeal he argued that he was denied a fair trial because the trial court improperly admitted evidence of defendant’s previous convictions for driving while license revoked and driving under the influence of alcohol. In Smith we held that in a conviction for driving while license revoked under section 6 — 303(d), the prior conviction for driving while license revoked and driving under the influence are elements of the enhanced offense and may be proved before the trier of fact. Smith, 162 Ill. App. 3d at 743, 516 N.E.2d at 337.

Defendant cites the following cases in support of his argument that the only issues that required a jury determination were that defendant was driving a motor vehicle on a public highway and that defendant’s license was revoked: People v. Turner (1976), 64 Ill. 2d 183, 354 N.E.2d 897; People v. Johnson (1983), 115 Ill. App. 3d 987, 451 N.E.2d 28; People v. Younge (1980), 83 Ill. App. 3d 305, 404 N.E.2d 415; People v. Papproth (1977), 56 Ill. App. 3d 683, 371 N.E.2d 1097; and People v. Osborne (1967), 78 Ill. App. 2d 132, 223 N.E.2d 243. Defendant is correct that these cases followed the rule that the only two factors needed to establish a violation of the offense of driving while license revoked or suspended are that the defendant was driving a motor vehicle on a public highway and, that at the time, the defendant’s driver’s license was suspended or revoked. We fail to recognize how these cases support defendant’s argument, however, that admission of evidence of defendant’s previous convictions was error. On the contrary, in Osborne the court held that the admission of the documentary evidence to show the defendant’s prior convictions was proper. The court went on to state:

“The fact of suspension is one of the essential elements of the offense as charged and must be proved by the People. It is a matter of common knowledge that suspension of a license to operate a motor vehicle must depend upon previous misconduct in the operation of a motor vehicle and we are not prepared to hold that spelling out the details of such previous misconduct in the proof of suspension should in and of itself constitute reversible error.” Osborne, 78 Ill. App. 2d at 136, 223 N.E.2d at 246.

The other cases cited by defendant as authority for his position do not hold that the proof required to establish that defendant was driving while his license was suspended or revoked may not include evidence of his prior convictions. As we have already determined such evidence is properly admissible to prove the elements of the enhanced offense of driving while license revoked, we do not find the cases cited by defendant persuasive.

Likewise, reference to defendant’s prior convictions in the jury instructions was not error. The instructions to which defendant directs our attention read:

“A person commits the offense of Driving While License Revoked when he drives a motor vehicle upon any highway of this State at a time when his driver’s license or permit or privilege to do so is revoked, and he has previously been convicted of the offense of Driving While License Revoked and the original revocation of his driver’s license was for a violation of Section 11 — 501 of the Illinois Vehicle Code which is the offense of Driving Under the Influence of Alcohol.”
“To sustain the charge of Driving While License Revoked, the State must prove the following propositions:
First: That the Defendant drove a motor vehicle upon a highway of this State; and
Second: That the Defendant did so at a time when his driver’s license was revoked; and
Third: That the original revocation of Defendant’s driver’s license was for a violation of Section 11 — 501 of the Illinois Vehicle Code which is the offense of Driving Under the Influence of Alcohol; and
Fourth: That the defendant has a previous conviction for the offense of Driving While License Revoked.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

Considering the facts of this particular case, the jury had to find that defendant had the prior convictions in order to satisfy the elements of the offense of driving while license revoked and the instructions properly set forth the elements. If defendant wished to have the jury instructed as to the limited purpose of the prior conviction evidence, it was incumbent upon him to tender such an instruction.

Ordinarily, in order for a defendant to complain about the absence of an instruction he must have tendered an instruction of his own. While we have held in criminal cases that the presumption of innocence and burden of proof instruction (Illinois Pattern Jury Instructions, Criminal, No. 2.03 (2d ed. 1981)) must be given whether or not tendered by counsel (see People v. Layhew (1989), 191 Ill. App. 3d 592, 548 N.E.2d 25), the trial court is under no obligation to give sua sponte limiting instructions as in the case at bar. A failure to tender a proper instruction will result in a waiver of any objection concerning its absence on appeal. (People v. Grant (1978), 71 Ill. 2d 551, 557, 377 N.E.2d 4, 7; People v. Cregar (1988), 172 Ill. App. 3d 807, 822, 526 N.E.2d 1376, 1386-87.) He did not tender such instruction. We find the trial judge’s failure to give sua sponte a cautionary instruction on the limited use of the prior conviction evidence was not a denial of defendant’s right to a fair trial.

Defendant next contests the constitutional validity of the enhancement provisions of section 6 — 303(d). It is well settled that a strong presumption of constitutionality attaches to a statute. (People v. La Pointe (1981), 88 Ill. 2d 482, 499, 431 N.E.2d 344, 352.) The burden rests upon the party attacking a particular law to show that it is clearly arbitrary, is unreasonable and has no foundation in the State’s police power. (People v. Copeland (1980), 92 Ill. App. 3d 475, 479-80, 415 N.E.2d 1173, 1177.) Defendant argues that his sentence under the enhancement provisions of section 6 — 303(d) constituted a second punishment for a previously committed crime, in violation of the constitutional proscriptions against double jeopardy. (U.S. Const., amend. V; Ill. Const. 1970, art. I, §10.) In particular, defendant argues that he has been punished a second time for his previous driving under the influence conviction.

Double jeopardy may apply in three separate situations: (1) where there is a second prosecution for the same offense after acquittal; (2) where there is a second prosecution for the same offense after conviction; and (3) where there are multiple punishments for the same offense. (North Carolina v. Pearce (1969), 395 U.S. 711, 716, 23 L. Ed. 2d 656, 664, 89 S. Ct. 2072, 2076.) The double jeopardy inquiry generally focuses on the elements of the offenses charged. (State v. Vitale (1980), 447 U.S. 410, 416, 65 L. Ed. 2d 228, 235, 100 S. Ct. 2260, 2264-65.) If each offense requires proof of a fact that the other does not, the traditional test for double jeopardy purposes is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. (See Blockburger v. United States (1932), 284 U.S. 299, 304, 76 L. Ed. 2d 306, 309, 52 S. Ct. 180, 182.) The Blockburger test focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial. (Vitale, 447 U.S. at 416, 65 L. Ed. 2d at 235, 100 S. Ct. at 2265; People v. Mueller (1985), 109 Ill. 2d 378, 388, 488 N.E.2d 523, 528.) In limited circumstances, the Blockburger test has been expanded so that courts may look beyond the face of the statutes involved to the elements actually necessary to establish the charges to determine whether double jeopardy principles have been violated. See Harris v. Oklahoma (1977), 433 U.S. 682, 53 L. Ed. 2d 1054, 97 S. Ct. 2912.

Defendant’s claim fails under the Blockburger test since, on the face of the statutory provisions, each offense requires proof of a fact the other does not. Looking beyond the face of the statutes, driving under the influence is not a lesser-included offense of driving while license revoked. Driving under the influence would not be automatically established by a conviction for driving while license revoked. Driving under the influence is not a necessary element of driving while license revoked. (See Vitale, 447 U.S. at 421, 65 L. Ed. 2d at 238, 100 S. Ct. at 2267.) It is clear that the previous driving under the influence conviction was a factor the court properly considered when it punished defendant for driving while his license was revoked. Defendant’s right to be free from double jeopardy was not designed to pardon defendant for the offense of driving while license revoked merely because evidence of the prior crime for which defendant’s license was revoked was presented.

In the instant case, defendant’s prior driving under the influence conviction was used merely to determine the length of the sentence for which he was eligible, and the sentence imposed did not constitute a second punishment for the prior driving under the influence conviction. In a similar constitutional challenge to the Habitual Criminal Act (Ill. Rev. Stat. 1987, ch. 38, par. 33B — 1 et seq.), the court declared that

“defendant was not punished twice for the same offense, for it is well settled that ‘the punishment is for the new crime only, but the penalty is made heavier by statute because the defendant is an habitual criminal.’ ” (Emphasis added.) People v. McNeil (1984), 125 Ill. App. 3d 876, 882, 466 N.E.2d 1058, 1062, quoting People v. Lawrence (1945), 390 Ill. 499, 504, 61 N.E.2d 361, 364, cert. denied (1945), 326 U.S. 731, 90 L. Ed. 435, 66 S. Ct. 38.

Defendant continues his constitutional challenge of section 6— 303(d) by arguing that the legislature acted arbitrarily and capriciously in limiting the predicate offenses to reckless homicide, driving under the influence, and leaving the scene of an accident. Defendant contends that since a license may be revoked for the commission of any felony in which a motor vehicle is used (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 205(a)(3)), these same felonies should also constitute predicate offenses under section 6 — 303(d). Defendant argues that if the purpose of section 6 — 303(d) is to prevent driving by those with revoked licenses, then the statute does not do this in a rational manner.

The equal protection clauses of the United States and Illinois Constitutions do not prohibit the General Assembly from enacting legislation which affects different classes of persons differently. In the absence of involvement of a fundamental right, the legislature may even differentiate between persons similarly situated if there is a rational basis for doing so. (People v. Tosch (1986), 114 Ill. 2d 474, 481, 501 N.E.2d 1253, 1256, cert. denied (1987), 483 U.S. 1008, 97 L. Ed. 2d 740, 107 S. Ct. 3235.) The legislature apparently did not consider the danger posed by persons driving on a revoked license who have a previous conviction for driving under the influence, reckless homicide or leaving the scene of an accident to be the same as the danger posed by persons driving on a revoked license with previous, non-vehicular-related offenses. Because the predicate offenses of section 6 — 303(d) pose a particular danger to the motoring public, the legislature may have reasonably decided to limit the enhancement provisions to predicate offenses posing the greatest threat to the motoring public.

The equal protection guarantee does not prohibit the legislature from choosing to focus particularly on the hazard posed by traffic offenders. The legislature is “allowed to take reform ‘one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind’ [citation]; and a legislature need not run the risk of losing an entire remedial scheme simply because it failed, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked.” (Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 372-73, 489 N.E.2d 1374, 1384, quoting McDonald v. Board of Election Commissioners (1969), 394 U.S. 802, 809, 22 L. Ed. 2d 739, 746, 89 S. Ct. 1404, 1409.) Therefore, we cannot say that the legislature did not act rationally when it limited the predicate offenses of section 6 — 303(d), and we hold that section 6— 303(d) does not violate the equal protection guarantees of the United States and Illinois Constitutions.

Defendant next poses for our review the issue of whether his sentence was arbitrary and excessive.

At the sentencing hearing, a presentence investigation report was submitted which included an abstract of defendant’s driving record, which showed that on April 15, 1980, defendant pled guilty to a charge of speeding; on January 11, 1982, he pled guilty to a charge of speeding; on March 30, 1982, he pled guilty to a charge of speeding; on February 7, 1985, he pled guilty to a charge of driving too fast for conditions; on October 15, 1986, he pled guilty to a charge of driving under the influence of alcohol and was sentenced to seven days’ imprisonment, to pay a fine and costs, and to one year’s probation with residential treatment for alcohol abuse with outpatient counseling thereafter; on October 15, 1986, he pled guilty to a charge of driving under the influence and was sentenced to pay a $1,000 fine and $320 in costs, to 21 days’ imprisonment, and to one year’s probation; on October 15, 1986, defendant pled guilty to the offense of driving while license suspended, was sentenced to pay a fine and costs, to seven days’ imprisonment and to one year of conditional discharge, and was. subsequently sentenced to 45 days’ imprisonment when his conditional • discharge was revoked; on October 15, 1986, defendant pled guilty to the offense of driving while license suspended; and on April 13, 1987, he pled guilty to the offense of driving while license revoked and was sentenced to pay fines and costs and to one year’s probation. With regard to the instant case, under section 6 — 308(d) defendant was found guilty of a Class 4 felony. The sentencing range for the Class 4 felony driving while license revoked is a fixed term of from one to three years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(7).) Defendant was sentenced to three years’ imprisonment.

Defendant claims that it is evident from the trial judge’s comments at sentencing that the court considered both improper factors and facts not in evidence and, therefore, acted arbitrarily in its imposition of the maximum sentence. The comments to which defendant refers are:

“THE COURT: You know, Mr. Long, this has been a problem in this case. I will read through the factors in mitigation. We have had denial, denial, denial, denial, denial, denial. A year ago I was in this same position. I know you weren’t the Attorney then. We had a sentencing hearing. A crowd of witnesses testified, good people, good people. Give Gary Mondhink a chance. The Court gave Mr. Mondhink that chance. Since that time we have had an incomplete compliance with probation, an arrest for felony driving while license revoked, a jury trial, and a conviction, another arrest for felony driving while revoked. That is pending trial. I wanted to deny bond. The Court was wrong at that time and felt strongly about denying bond. We made very specific conditions regarding bond. Defendant did not comply with those terms and he was incarcerated. I have spent a good deal of time considering this case, this particular case, spent a good deal of time feeling guilty about sentencing Mr. Mondhink to the Department of Corrections for which I am about to do, and wondering why should I be feeling guilty here? Everyone has gone out of their way to help Gary Mondhink. I am convinced that if he was placed back on probation, it would be just a matter of a day or two out and about, he’d be putting the public at risk.
Will Department of Corrections help Gary Mondhink? It’s up to Gary Mondhink. Probably not in terms of his alcoholism. It will certainly keep the public safe during that period of time. I have been presented no program that would guarantee to the Court that he wouldn’t be out in a vehicle.
You indicated that he’s not hurt anybody. I say thank God. I am not prepared to wait until it happens. And then, Mr. Mond-hink will be in here and say, T didn’t mean to. I’m sorry.’ And, I am sure he would be.
The Court has responsibility here not only to Gary Mond-hink, not only to others finding- themselves in a similar situation, but to the public. Everyone has gone out of his way, friends and neighbors. The Court’s to see to it that he is treated fairly and that it’s not going to happen again.
I think the defendant’s conduct has caused or certainly threatened serious harm in terms of others out on the roadway. He has a history of criminal activity. I know you distinguish criminal activity from driving. The laws don’t do that any longer, and I think the public at large is willing to accept that fact that driving under these circumstances is criminal activity. This Court is willing to accept that. Sentence is necessary to deter others from committing the same crime.
Mr. Mondhink, on his first arrest, was treated, hopefully, just like anyone else for that type of an offense. But, we are talking about driving under the influence, driving under the influence, driving while license suspended, driving while license revoked, conditions of probation not being complied with, conditions of bond not being complied with. He’s left the Court no alternative, none.
Perhaps less than three years would be all that is necessary to rehabilitate Mr. Mondhink. But, the Court feels at this point in time I have no choice. I have been put in a position, but I have to sentence you to three years in the Department of Corrections and assess costs. That means they can keep him a year and a half.
I hope that when the time comes that when he returns, that alcoholism problem or whatever problem it is will be behind him. But, at least the public can feel safe that he is not out on the roadway. There is no other alternative' the Court has. I cannot shackle the defendant at his home. We do not have the facilities to use the sophisticated types of shackles that allow the Sheriff’s Office to monitor where he is at. I’d love to see that he could remain on the farm and get the farm going and help his brother out. My main worry is him getting in a vehicle and hitting the road. He’s gone against his word enough times in front of this Court that I can’t accept that anymore.”

Sentencing decisions are largely within the discretion of the trial court and will not be disturbed absent an abuse of discretion. (People v. Fowler (1981), 98 Ill. App. 3d 202, 207, 423 N.E.2d 1356, 1359.) The record indicates the defendant had extensive traffic violations, suspensions and revocations of probation leading up to this incident. We find the court did not abuse its discretion and that the sentence of three years’ imprisonment was not excessive.

Finally, defendant argues that he was unconstitutionally denied the right to elect treatment for alcoholism rather than imprisonment at the time of his sentencing. Defendant was sentenced May 27, 1988, when the Alcoholism and Substance Abuse Act (Ill. Rev. Stat. 1987, ch. IIIV2, par. 6301 et seq.) was in effect. On July 1, 1988, that act was repealed and the Illinois Alcoholism and Other Drug Dependency Act (Ill. Rev. Stat. 1987, ch. HV-k, par. 6351 — 1 et seq.) became effective. Under the former Act, had defendant been found to be an alcoholic, as that term was therein defined, defendant would not have been entitled to elect treatment for alcoholism rather than imprisonment. Had defendant been sentenced at the time the Illinois Alcoholism and Other Drug Dependency Act was effective, he could have elected a treatment program instead of imprisonment if he was found to be an alcoholic as defined under that Act. Defendant argues that the treatment provision of the Alcoholism and Substance Abuse Act unconstitutionally excluded alcoholics.

In determining whether a given legislative classification denies a person the equal protection of the laws, where that person is not a member of a suspect class or has not been deprived of a fundamental right, the courts restrict their role to determining whether the particular legislative classification is rationally designed to further a legitimate State purpose. (People ex rel. Tucker v. Kotsos (1977), 68 Ill. 2d 88, 96, 368 N.E.2d 903, 907.) We do not find that defendant is a member of a suspect class, i.e., groups that historically have been the subject of widespread, substantial, and purposeful discrimination. (See San Antonio Independent School District v. Rodriguez (1973), 411 U.S. 1, 36 L. Ed. 2d 16, 93 S. Ct. 1278.) Also, we do not find that the defendant’s interest in electing treatment for alcoholism is a fundamental right. Fundamental interests generally are those that lie at the heart of the relationship between the individual and a republican form of integrated government. (Tucker, 68 Ill. 2d at 97, 368 N.E.2d at 907.) Only interests such as those in the expression of ideas (see, e.g., Buckley v. Valeo (1976), 424 U.S. 1, 44-45, 46 L. Ed. 2d 659, 702, 96 S. Ct. 612, 647), in participation in the political process (see, e.g., Harper v. Virginia State Board of Elections (1966), 383 U.S. 663, 16 L. Ed. 2d 169, 86 S. Ct. 1079), in travel among the States (Shapiro v. Thompson (1969), 394 U.S. 618, 22 L. Ed. 2d 600, 89 S. Ct. 1322), and in privacy with regard to the most intimate and personal aspects of one’s life (see, e.g., Skinner v. Oklahoma ex rel. Williamson (1942), 316 U.S. 535, 86 L. Ed. 1655, 62 S. Ct. 1110) are fundamental. We therefore limit our analysis to a determination of whether the legislative classification of the Alcoholism and Substance Abuse Act was rationally designed to further a legitimate State purpose.

The equal protection clause does not mean that a State may not draw lines that treat one class of individuals or entities differently; the test is whether the difference in treatment is invidious discrimination. (People v. Perine (1980), 82 Ill. App. 3d 610, 615, 402 N.E.2d 847, 849; Dandridge v. Williams (1970), 397 U.S. 471, 25 L. Ed. 2d 491, 90 S. Ct. 1153.) There is a presumption in favor of the validity of the classification made by the legislative body, and one who assails it has the burden of proving the classification to be arbitrary. Jacobs v. City of Chicago (1973), 53 Ill. 2d 421, 425, 292 N.E.2d 401, 404.

In the instant case the only attempt made by defendant to show that the statutory classification at issue is irrational or arbitrary is defendant’s argument that the Alcoholism and Substance Abuse Act irrationally eliminated all alcoholics even though the purpose of the Act was to curb the springboard to crime and to rehabilitate the defendant. The legislature has broad latitude and discretion in classification, especially in the criminal area. (People v. McCabe (1971), 49 Ill. 2d 338, 340-41, 275 N.E.2d 407, 409.) As the State suggests in its brief, the legislature could rationally have distinguished between alcoholics and persons addicted to controlled substances, because alcohol, as opposed to controlled substances, is legal and easily accessible. The legislature may have recognized that because controlled substances are illegal and oftentimes expensive, those seeking to acquire them are oftentimes forced to consort with the criminal element. The legislative determination to distinguish alcoholics from those addicted to controlled substances has a rational basis, and we do not find that defendant was the subject of invidious discrimination.

The judgment of the trial court is affirmed.

Affirmed.

WELCH and RARICK, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    JOSE ISABEL GONZALEZ, Plaintiff-Appellant, v. PRESTRESS ENGINEERING CORPORATION, Defendant-Appellee.
    Fourth District
    No. 4—89—0191
    Opinion filed February 28, 1990.

      Emmanuel F. Guyon, of Streator, for appellant.
    Julie Badel and Nancy Ginsberg Ross, both of McDermott, Will & Emery, of Chicago, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

This case comes to us on appeal from the circuit court of Livingston County. The plaintiff brought a retaliatory discharge action against his former employer, the defendant. The jury found the plaintiff was discharged for dishonesty related to a fraudulent workers’ compensation claim. The plaintiff appeals, alleging the jury’s verdict is contrary to the manifest weight of the evidence, the trial court erred in failing to direct a verdict for the plaintiff, the trial court erred in admitting into evidence administrative and court decisions in the workers’ compensation case, the court erred in instructing the jury, the court abused its discretion in not allowing jurors to question witnesses, and the court erred in requiring plaintiff to proceed first in questioning each panel of prospective jurors.

The plaintiff, Jose Gonzalez, was employed by the defendant Pre-stress Engineering Corporation in 1977 as a general laborer. On Sunday, June 7, 1981, a softball team composed of defendant’s employees played a game against a church team. The plaintiff played second base, and in the middle of an inning, a ball was hit to him. The plaintiff’s crew leader Bruce Fortner testified the ball bounced off the plaintiff’s hand, he yelled something in Spanish, and his face reflected an expression of pain. The plaintiff walked off the field and did not play anymore that day. Fortner testified it was unusual for a player to walk off the field in the middle of an inning as the plaintiff did.

On Monday, June 8, 1981, the plaintiff was working on a setup crew at the defendant’s place of business. He was using a portable hydraulic jack called a port-a-power to align one side of a steel form into which concrete would be poured. Between six and eight o’clock in the morning he reported to Fortner that he hurt his right little finger on the port-a-power. Fortner testified that he was working approximately 200 feet away from the plaintiff at the other end of the form. Fortner stated that he did not hear the plaintiff cry out.

Fortner accompanied the plaintiff to the office of the plant superintendent Dale Lanning. Banning made arrangements for the plaintiff to be taken to the hospital for medical treatment and filled out an accident report, Illinois Industrial Commission form 45. The defendant initiated payment of temporary disability benefits to the plaintiff and also began paying his medical bills in accordance with the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.). Sometime after the plaintiff reported his injury, Fortner informed Lanning the plaintiff had injured his finger at a softball game the day before he reported the injury at work. After consulting with the attorney who represented the company in workers’ compensation cases, the defendant stopped all payments to the plaintiff. The last payment for medical benefits was made on August 27,1981.

On August 3, 1981, the plaintiff filed a workers’ compensation claim with the Illinois Industrial Commission (Commission) for the injury, which he claimed took place on June 8, 1981. The Commission’s arbitrator heard the claim in August 1982 and found that the plaintiff’s injury was not sustained in the course of his employment.

After receiving the decision, Lanning and Harding discussed the matter and decided to terminate the plaintiff’s employment because he falsely reported the injury as work related. Lanning gave the plaintiff a letter of termination on September 20, 1982.

The Commission affirmed the decision of the arbitrator. The Commission’s decision was affirmed by the circuit court of La Salle County in an order filed on December 17, 1985, in case No. 85 — MR-13. This was in turn affirmed by the Industrial Commission division of the appellate court in a Rule 23 order dated August 13, 1986, in Gonzalez v. Industrial Comm’n (1986), 145 Ill. App. 3d 1169, 511 N.E.2d 282 (unpublished order under Supreme Court Rule 23).

On October 4, 1982, the plaintiff filed a complaint in the circuit court of Livingston County, case No. 82 — L—37, alleging the tort of retaliatory discharge. The circuit court ordered the case dismissed on March 21, 1983. A notice of appeal to this court was filed on April 19, 1983. This court affirmed the trial court’s dismissal in a Rule 23 order, Gonzalez v. Prestress Engineering Corp. (1983), 118 Ill. App. 3d 1167, 470 N.E.2d 663 (unpublished order under Supreme Court Rule 23). This court’s decision in turn was appealed to the supreme court, which overturned the decision in Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 473 N.E.2d 1280.

After receiving the mandate of the supreme court, a jury trial was commenced on September 20, 1988, in Livingston County in this cause for retaliatory discharge. The jury’s decision for the defendant was filed on September 22, 1988. On March 3, 1989, the trial court denied the last of the plaintiff’s post-trial motions. A notice of appeal was filed on March 7,1989.

The plaintiff first argues the decision of the jury in this case is against the manifest weight of the evidence. A jury’s verdict is against the manifest weight of the evidence only if it is wholly unwarranted by the evidence or clearly the result of passion or prejudice. (Lebrecht v. Tuli (1985), 130 Ill. App. 3d 457, 473 N.E.2d 1322.) In order to prove a retaliatory discharge for filing a workers’ compensation claim, a plaintiff must establish: (1) he was an employee before the injury; (2) he exercised a right granted by the Act; and (3) he was discharged and the discharge was causally related to filing a claim under the Act. Lewis v. Zachary Confections Co. (1987), 153 Ill. App. 3d 311, 505 N.E.2d 1087.

On appeal, the plaintiff continues to maintain that he did nothing which would justify his discharge by the defendant. The Commission found the injuries sustained by the plaintiff were not related to his work. It is the position of the defendant that plaintiff was discharged for his dishonesty in filing a claim which he knew to be false, rather than for filing the claim itself.

The plaintiff contends that an adverse finding by the Commission should not become an opportunity for an employer to terminate an employee who files a claim, nor should such a finding be equated automatically with dishonesty. He argues that by upholding the circuit court we would encourage employers to take retaliatory action against any employee who files an unsuccessful claim with the Commission. Although an employer may discharge an employee for any reason or no reason, an employer cannot discharge an employee in violation of public policy. Pethan v. Peavey Co. (1989), 188 Ill. App. 3d 126, 544 N.E.2d 17.

“An employer in this State, who does not come within the classes enumerated by Section 3 of this Act, may elect to provide and pay compensation for accidental injuries sustained by any employee, arising out of and in the course of the employment according to the provisions of this Act ***.” m. Rev. Stat. 1981, ch. 48, par. 138.2.

The public policy of this State as set out in section 2 of the Act is to provide compensation for accidents which are in some way related to the employee’s work. (Ill. Rev. Stat. 1981, ch. 48, par. 138.2.) We recognize there may be cases where the injured worker may not be able to establish or may not definitely know himself that his injury is work related. That is not the case we are presented with here. Public policy demands the protection of workers who file legitimate claims which arise from work related accidents. It cannot be held to protect those who file false claims. It must be kept in mind the plaintiff had his day in court, the jury returned a verdict for defendant, and judgment was entered thereon.

The evidence showed the circumstances were such that the jury could find that plaintiff could not have been mistaken about when or how he was injured. The second element of wrongful discharge requires the plaintiff show the causal relationship between the employee’s activities and the discharge. The causality element will not exist where the basis for the discharge is valid and nonpretextual. (Pethan v. Peavey Co. (1989), 188 Ill. App. 3d 126, 544 N.E.2d 17.) Here the plaintiff tried to show the defendant’s charge of dishonesty against him was merely pretextual by attempting to show an ongoing pattern of discharging employees who filed workers’ compensation claims. Although the plaintiff was able to show that many of the workers who filed such claims were no longer employed by the defendant, he failed to show a connection between the filings and the termination of employment. Defendant was able to show that those workers no longer employed were mostly immigrant workers who had failed to respond to recall notices sent after regular seasonal layoffs. The jury could find the plaintiff failed to overcome the defendant’s showing of a valid nonpretextual reason for his dismissal.

The plaintiff seems to suggest that because the defendant here initially treated the plaintiff’s claim as bona fide, this constitutes an admission the claim was legitimate or somehow estops the defendant from later denying the claim. The fundamental purpose of the Act is to afford protection to employees by providing them with prompt and equitable compensation for their injuries. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.) We find it is in keeping with this policy to reject the plaintiff’s arguments. The employer acted responsibly, paying the medical expenses and lost wages of the plaintiff until it had positive information the plaintiff was not injured at work. It would not now be appropriate to penalize the defendant by holding that its initial decision to provide coverage was some sort of admission or estopped it from altering its earlier conclusion.

Ultimately, the resolution of this case depended on the credibility of the witnesses. The credibility of the witnesses and the weight to be given their testimony is uniquely the province of the jury. (Netzel v. United Parcel Service (1989), 181 Ill. App. 3d 808, 537 N.E.2d 1348.) The Industrial Commission proceedings are relevant as evidence to show defendant’s motivation to discharge plaintiff. The jury had the opportunity to observe the witnesses and hear their testimony. Upon the evidence presented, the jury could properly find the plaintiff failed to prove his discharge was causally related to filing a claim under the Act. Dishonesty in filing a workmen’s compensation claim is not an activity protected under Lewis. The jury’s verdict is not against the manifest weight of the evidence.

The plaintiff next contends the trial court erred when it failed to enter a directed verdict for the plaintiff. Although the evidence here would not support a directed verdict, it is not necessary for us to reach the merits of the plaintiff’s argument. The plaintiff did not move for a directed verdict either at the close of his case in chief or at the close of all the evidence. The plaintiff has attempted to argue around this omission by noting that a court can enter a directed verdict on its own motion. The question here, however, is whether, having failed to move for a directed verdict, the plaintiff can now raise this as an error on appeal. In Froman v. Day (1967), 87 Ill. App. 2d 250, 231 N.E.2d 10, this court held the failure to move for a directed verdict precluded the presentation of this question to the court on review. As the plaintiff failed to so move, he is precluded from raising this issue on appeal.

The plaintiff did file a motion in limine, which would have limited the defendant to introducing evidence only that a claim had been filed with the Industrial Commission and that it had been adjudicated. The contents of the finding, the ultimate decision of the Commission, and any of the subsequent litigation would not have been permitted into evidence. The trial court denied this motion. When the decisions of the arbitrator, the Commission, and the circuit and appellate courts on review were entered into evidence in the course of the trial, the plaintiff made no objections. The plaintiff argues the court improperly denied its motion in limine and that it improperly took judicial notice of the arbitrator’s decision and the other administrative and legal proceedings in this matter.

The requirement that a contemporaneous objection be raised when the evidence is offered is not obviated by the denial of a motion in limine. (Romanek-Golub & Co. v. Anvan Hotel Corp. (1988), 168 Ill. App. 3d 1031, 522 N.E.2d 1341.) In that case, the court held the defendant’s failure to object to the admission of certain documents after his motion in limine had been denied waived the issue on review. It reasoned that a motion in limine, like any other interlocutory order, remains subject to reconsideration by the court throughout the trial. A party must therefore object or renew his motion when the evidence is offered to preserve his objection on appeal. “We have consistently held that experienced counsel cannot take a chance of failing to make objections and then, upon receiving what they consider an adverse jury verdict, claim error.” (County of Cook v. Colonial Oil Corp. (1958), 15 Ill. 2d 67, 75, 153 N.E.2d 844, 848.) Here counsel failed to object at trial when the evidence was admitted and so plaintiff’s objections are waived.

Plaintiff also contends the trial court erred when it refused a number of his own jury instructions and gave some instructions of its own or of the defendant. First, it is necessary to note that plaintiff objects to the court’s refusal to give plaintiff’s instruction No. 13. However, this instruction was given.

To preserve an objection as to an instruction, one must set it forth with specificity to advise the trial court of the ground of the objection before ruling. A party’s general objection below, and his failure to cite authority in his brief or in the arguments made on appeal, will not suffice to preserve an issue for a reviewing court’s consideration. (Finke v. Woodard (1984), 122 Ill. App. 3d 911, 921, 462 N.E.2d 13, 20.) Most of the questions raised as to the jury instructions are presented to us without citation or argument on appeal, and we decline to consider these. Plaintiff’s objection to the refusal of his instruction No. 9 contains citations but no argument, and we cannot discern the precise grounds on which plaintiff objects, given that the cases cited contain neither holdings related to jury instructions nor any issue reasonably related to issues presented here. For this reason plaintiff’s objection is waived.

In regard to plaintiff’s instruction No. 10, the court did give the portion of the instruction which quoted the relevant statutes. However, because the remainder of the instruction was duplicative of the burden-of-proof instruction (court’s instruction No. 5), the court properly refused to give that portion of the instruction. (See Fornoff v. Parke Davis & Co. (1982), 105 Ill. App. 3d 681, 434 N.E.2d 793.) All other objections in regard to the jury instruction are waived for failure to properly preserve or present the issue on appeal.

The plaintiff next argues it was error for the trial court to refuse to allow members of the jury to question the witnesses. A cause will not be reversed for alleged improper rulings unless the court’s discretion has been abused. Neither, legislation nor supreme court rules provide for the procedure suggested by plaintiff. It is clear the trial court did not abuse its discretion in denying plaintiff’s request.

Finally, the plaintiff maintains the trial court erred in requiring the plaintiff to initiate the voir dire of each panel of jurors selected. The plaintiff has not provided us with any means of reviewing the voir dire of the jurors in this case. The voir dire was recorded, but has not been transcribed and has not been made a part of the record by the plaintiff. In the absence of a verbatim transcript or other report of proceedings, the statement of facts contained in the plaintiff’s brief falls outside the record, does not comply with Supreme Court Rule 323 (107 Ill. 2d R. 323), and may not be considered on appeal. (American Savings Bank v. Robison (1989), 183 Ill. App. 3d 945, 539 N.E.2d 820.) It is the plaintiffs responsibility to provide a complete record on appeal and having failed to do this, we decline to consider this issue on appeal. The plaintiffs argument as to the voir dire of the jury is waived.

On the merits, the procedures plaintiff suggests were followed by the trial court were consistent with supreme court rules (107 Ill. 2d Rules 233, 234).

The decision of the circuit court is affirmed.

Affirmed.

KNECHT, RJ., and GREEN, J., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ISAAC B. KYLE, Defendant-Appellant.
    Fourth District
    No. 4—89—0647
    Opinion filed February 22, 1990.

      Harvey C. Welch, of Urbana, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Isaac Kyle, defendant, and Derrick Grant participated in a series of armed robberies. Defendant entered a plea of guilty to one charge of armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2) and one charge of attempt (armed robbery) (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4). Other charges were dismissed. He was sentenced to 20 years on the armed robbery charge and 10 years on the attempt (armed robbery) charge — the sentences to run consecutively. On appeal, defendant argues the trial court abused its discretion in ordering a consecutive sentence and, in the alternative, that the court did not provide an adequate record as to the reasons underlying the consecutive sentence. We disagree and affirm.

Defendant and Grant robbed businesses by a method of entering as customers, Grant carrying a gun, and forcing the employee to lie on the floor. After obtaining the cash, on at least three occasions, other than the occasions to which the pleas were entered, the defendant kicked the prone employees in the head, doing serious injury to at least one. No reason was given for the kicking, and Grant, testifying at defendant’s sentencing hearing, denied encouraging it. On the day after defendant was sentenced, Grant was sentenced, by the same judge, to concurrent sentences of 20 years and 10 years for the same offenses. Defendant was born July 29, 1970, and had a previous juvenile record.

Section 5 — 8—4(b) of the Unified Code of Corrections provides:

“The court shall not impose a consecutive sentence except as provided for in subsection (a) unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(b).)

The test as to the propriety of the trial court’s sentence was set forth by our supreme court as follows:

“We have repeatedly emphasized the undesirability of a reviewing court simply substituting its judgment or preference as to punishment for that of the sentencing court. The trial judge is ordinarily best situated to tailor a sentence or other disposition to the needs of the case. He balances the appropriate factors in imposing sentence, and the exercise of this discretion should not be altered upon review absent an abuse of that discretion.” (People v. Hicks (1984), 101 Ill. 2d 366, 375, 462 N.E.2d 473, 477.)

The Hicks opinion upheld the trial court’s consecutive sentence.

From the trial judge’s remarks at time of sentence, it is clear that he understood the dictates of section 5 — 8—4(b). During the sentencing hearing, he had heard evidence of the defendant seriously endangering the lives of three helpless robbery victims, without provocation, kicking them in the head. The trial court remarked about “the Defendant’s character and his propensity for violent behavior.” He found that the “Defendant is dangerous to persons. He’s violent.” He found “consecutive sentences are necessary for protection of the public.”

Defendant emphasizes that Grant was the only party with a gun and that the two of them jointly planned the crimes. However, the testimony of Grant indicates that the defendant did the kicking without Grant’s encouragement. While there is evidence in the record which might justify Grant receiving consecutive sentences, we are not to second-guess the trial judge. He conducted a separate sentencing hearing for Grant, and the record of that hearing is not a part of this cause.

We hold the evidence sufficient to find that the trial court’s sentence was not' an abuse of discretion. We also hold that the trial court adequately set forth the basis for the consecutive sentences.

Affirmed.

SPITZ and GREEN, JJ., concur.


author: JUSTICE GREEN

text:
    GEORGE W. CARPENTER, Plaintiff-Appellee, v. MOBILE WORLD, INC., et al., Defendants-Appellants.
    Fourth District
    No. 4—89—0589
    Opinion filed February 22, 1990.

      Brian T. Otwell, of Morse, Giganti & Appleton, of Springfield, for appellants.
    Patrick J. O’Hara, of Blane & O’Hara, of Petersburg, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On June 21, 1988, plaintiff George W. Carpenter brought a five-count complaint in the circuit court of Menard County against defendants Mobile World, Inc. (Mobile), and Rich Hayes. Count I was against Mobile, seeking to rescind for breach of a contract whereby plaintiff bought a mobile home from Mobile. Counts II and III sought compensatory damages from Mobile for breach of implied warranties of the contract. Counts IV and V were against Hayes, who was alleged to be an agent of Mobile. Count IV alleged Hayes knowingly participated in a transaction whereby a defective mobile home was sold to plaintiff and, because of Hayes’ failure to follow proper procedures in regard to Federal requirements concerning name plates on mobile homes, plaintiff was delayed in learning of the defects in the mobile home he purchased from Mobile. Compensatory damages were sought. Count V alleged Hayes engaged in the previously described conduct wilfully and fraudulently and requested both compensatory and punitive damages.

On May 5, 1989, following a jury trial in the circuit court of Menard County, the court entered an order reflecting the jury’s findings in favor of plaintiff on all five counts. On count I, the jury found the contract was breached and awarded rescission in the full contract price of $20,146. On count II, the jury found Mobile had breached the implied warranty of merchantability and assessed damages in the amount of $3,500. On count III the jury found Mobile had breached the implied warranty of fitness for a particular purpose and assessed damages in the amount of $30,000. On count IV the jury assessed damages in the amount of $100. On count V the jury assessed zero actual damages and $20,000 punitive damages.

On July 6, 1989, following defendants’ post-trial motion, the court ordered remittitur of damages in count II from $3,500 to $1,500, and vacated the award of damages as to count III entirely as a double recovery. The court denied defendants’ post-trial motion in all other respects and entered judgments on all five counts. Defendants have appealed.

Defendants make numerous claims of error on appeal. As we conclude some of these contentions are sufficient to require reversal of the judgments on each of the counts, we need not consider all such claims. The contentions of defendants which we consider are: (1) the court erred in denying defendants’ motion for change of venue from Menard County; (2) the evidence did not support recovery on count I; (3) counts I, II, and III are barred by statutory limitation provisions; (4) implied warranties claimed to have been breached in counts I, II, and III were validly disclaimed by Mobile; (5) count IV fails to state a cause of action; and (6) the award of punitive damages as to count V cannot stand, because no compensatory damages were awarded for the same conduct.

Menard County was a proper venue for the case. Section 2— 101 of the Code of Civil Procedure states that every action must be commenced “in the county of residence of any defendant [who is properly joined] *** or (2) in the county in which the transaction or some part thereof occurred out of which the cause of action arose.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 101.) Here, the contract of sale of the mobile home required the “home will be delivered, blocked, leveled, anchored [and] skirted” in Petersburg, which is in Menard County. Thus, “some part” of the transaction “out of which the cause of action arose” occurred in Menard County.

The most important part of this case concerns the questions of whether the proof supported the judgment of rescission as to count I and whether any cause of action otherwise proved was barred by the limitation provisions of section 2 — 725 of the Uniform Commercial Code (Code) (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 725). Consideration of this question requires a summary of the evidence at trial.

Taken most favorably to plaintiff, who prevailed at trial, the evidence showed the following series of events. On or about March 2, 1984, plaintiff entered into a contract to purchase the mobile home from Mobile for a price of $20,146. The contract made no express warranties. The mobile home was manufactured in Goshen, Indiana, and transported to Petersburg. Mobile admits the vehicle received some damage in transport but maintains it was superficial, involving damage to siding which was repaired by a factory representative. However, Steven Brady, a self-employed general contractor, testified he inspected the mobile home on October 6, 1987, and discovered a sagging roof and water damage. He concluded repairs would cost more than the value of the mobile home. He deemed the damage was such it could not have resulted from an episode where the siding was merely deeply scratched in transit. Brady’s testimony was subject to some discount because of limited experience, but he was shown to have some expertise, and the trier of fact could properly have been persuaded by that testimony. No evidence was introduced to indicate the faulty construction found to exist by Brady had been caused by anything occurring after the mobile home had been delivered.

Count I alleged the mobile home was “unfit for the purpose for which it was intended.” Section 2 — 314(1) of the Code creates an implied warranty resulting from a sale of goods that the goods are “merchantable.” (Ill. Rev. Stat. 1983, ch. 26, par. 2-314(1).) Section 2 — 314(2)(c) provides that for goods to be merchantable, they must be “fit for the ordinary purposes for which such goods are used.” (Ill. Rev. Stat. 1983, ch. 26, par. 2 — 314(2)(c).) We deem the allegations of count I sufficient to allege a breach of the implied warranty of merchantability, even though the words “purpose for which it was intended” were used, rather than the statutory words “ordinary purposes for which such goods are used.” Based upon Brady’s testimony, the trier of fact could have found the existence of a breach of the implied warranty of merchantability as to the mobile home unless affirmative matter precluded such a finding. Under Brady’s testimony that the cost of repairs was greater than the value of the mobile home, the trier of fact could have found the breach justified a rescission of the contract.

One type of affirmative matter which would preclude the implication of a warranty of merchantability would be an express provision of the contract meeting the requirements of section 2 — 316 of the Code (Ill. Rev. Stat. 1983, ch. 26, par. 2 — 316) excluding such an implied warranty. As we will subsequently explain, the sales contract did contain such a provision, but Mobile pleaded it only in answer to counts II and III, but not as to count I. The other affirmative matter which might defeat count I is the properly pleaded affirmative defense that the action was not brought within the limits set forth in sections 2 — 725(1) and (2) of the Code, which state:

“(1) An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.” Ill. Rev. Stat. 1987, ch. 26, pars. 2-725(1), (2).

The instant contract of sale was entered into on or about March 2, 1984, and the mobile home was delivered to plaintiff before June 1984. The complaint was not filed until June 21, 1988, more than four years after either of the foregoing events. No warranty of the contract extended to future performance. Accordingly, sections 2 — 725(1) and (2) of the Code were a bar to recovery as to count I, unless conduct on the part of Mobile tolled the running of that statute of limitations. Plaintiff contends such conduct arose under circumstances of this case when, (1) after complaints were made to Hayes, he sent a letter to plaintiff concerning what he would do in regard to “condensation problems” plaintiff and his wife were experiencing; and (2) testimony of Tina Carpenter, plaintiff’s wife, that in late 1987 or early 1988, Hayes inspected the mobile home and offered to correct or repair several “problems” shown to him at the time and to return when the weather got warmer to look at the roof. Tina Carpenter further testified Hayes made no promises to repair the roof. The letter stated:

“Items Mobile World will do to try to correct condensation problem: (1) install four roof louvers (two front and two rear); (2) remove shingles above living room stain and replace any bad plywood; (3) inspect entire roof for any damage or faulty construction; (4) install batten strip to seal siding joints; (5) repair ceiling around furnace flue; (6) repair floor around the washer area; (7) install new front door.”

The circuit court found the running of the statutory period had been tolled. In support of that decision, plaintiff cites Axia, Inc. v. I.C. Harbour Construction Co. (1986), 150 Ill. App. 3d 645, 501 N.E.2d 1339. There, suit was brought for breach of a contract to construct an office building. Shortly after completion, the building allegedly began to leak, and the contractor attempted to correct the leakage problem over a period of several years during which time a statutory period of limitation for bringing such an action expired. The appellate court concluded that contractor was not merely engaging in negotiations or investigation of the problems but was taking affirmative action to eliminate the problems in an apparent recognition of the contractor’s responsibility in creating the problems.

Defendant relies on Nelligan v. Tom Chaney Motors, Inc. (1985), 133 Ill. App. 3d 798, 479 N.E.2d 439, and Tomes v. Chrysler Corp. (1978), 60 Ill. App. 3d 707, 377 N.E.2d 224. In Nelligan, that plaintiff appealed a judgment dismissing a complaint charging an automobile dealer with a breach of warranty in regard to the sale of an automobile. The dismissal was based upon the expiration of the time limits of section 2 — 725 of the Code. That plaintiff contended the running of the statutory period had been tolled, because various recalls of the vehicle resulted in repairs of the vehicle by that dealer on matters not connected with the alleged breach giving rise to the suit. The appellate court held no tolling had occurred. Similarly, in Tomes, the appellate court held that attempts to repair a particular defect in a boat by the seller did not toll the running of the statutory period of limitation in regard to suit for breach of warranty arising from another defect.

Here, the evidence shows the plaintiff and his wife had been arguing to Hayes that a water leakage problem arose from a defective roof as described by the contractor, Brady. Hayes maintained the water problem arose from condensation. The previously described letter apparently arose largely in response to these complaints. Tina Carpenter testified that after receiving the letter, neither she nor defendant believed that the work Hayes agreed in the letter to do would correct the problem with the roof. The circuit court concluded that the letter from Hayes, where he promised to make certain repairs and installations and examine the roof, in addition to his oral promise to inspect the roof, implied a promise to make any necessary corrections to the roof. While we give deference to the findings of the trier of fact, we hold that any such inference must fail as a matter of law.

Here, unlike in Axia, the agent of the seller, Hayes, did not promise to repair, replace, or correct the defect about which plaintiff now sues in seeking rescission. We conclude, as a matter of law, that the limitation period of section 2 — 725 had run when this suit was filed and had not been tolled as to count I. The judgment on count I in favor of plaintiff cannot stand.

Mobile maintains the implied warranties of merchantability which plaintiff contends in counts II and III to have been breached were disclaimed by a paragraph in enlarged print on the back of the contract which stated:

“(9) Exclusion of warranties. I understand that the implied warranties on merchantability and fitness for a particular purpose and all other warranties express or implied are excluded by you from this transaction and shall not apply to the goods sold. I understand that you make no warranties whatsoever regarding the unit or any appliances or component contained therein, except as may be required under applicable State law.”

Section 2 — 314 of the Code (Ill. Rev. Stat. 1983, ch. 26, par. 2 — 314) indicates that for implied warranties of merchantability to be disclaimed by the seller, compliance must be obtained with section 2— 316 of the Code. (Ill. Rev. Stat. 1983, ch. 26, par. 2 — 316.) Section 2— 316(2) of the Code requires that ordinarily to exclude such an implied warranty, “the language must mention merchantability,” and be in writing and be “conspicuous.” (Ill. Rev. Stat. 1983, ch. 26, par. 2— 316(2).) Here, the back page of the contract does contain a disclaimer which is in writing and does mention “merchantability.” Plaintiff maintains it was not “conspicuous” and the circuit court agreed.

The parties agree the question of whether a purported disclaimer is conspicuous is a question of law for the court. (Bowers Manufacturing Co. v. Chicago Machine Tool Co. (1983), 117 Ill. App. 3d 226, 232, 453 N.E.2d 61, 67; Ill. Rev. Stat. 1983, ch. 26, par. 1-201(10).) “A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it,” and “in the body of a form [language] is ‘conspicuous’ if it is in larger *** type.” (Ill. Rev. Stat. 1983, ch. 26, par. 1 — 201(10).) However, in Anderson v. Farmers Hybrid Cos. (1980), 87 Ill. App. 3d 493, 408 N.E.2d 1194, a purported disclaimer on the back of an order confirmation slip for the sale of unbred female pigs used for breeding purposes (gilts) contained a disclaimer on its back in print larger than the rest of the print on the back but in smaller print than that on the front of the slip. In small print on the front of the slip, a statement indicated the order was subject to conditions on the back of the slip. Also noting that the nature of the slip was such that a person might think nothing was on the back of the slip, the appellate court held the purported disclaimer of merchantability was invalid.

Plaintiff points out that here, as in Anderson, the disclaimer was on the back, and here, as in Anderson, no statement on the front of the document stated a disclaimer was made on the back of the document. Plaintiff maintains the precedent of Anderson requires us to determine the disclaimer here was not conspicuous. However, here the document of sale does not appear to lack writing on its back, and above the line on the front for signature by the buyer, in enlarged print, as large as any on the front, is a statement that buyer has read the back of the agreement. In Bowers, the warranty provisions of a warranty card were on the back of the card as was a disclaimer. The front of the card contained a statement that warranty provisions were on the back of the card. The disclaimer was held to be conspicuous. The court noted a reasonable person would likely have read the back. Here, too, a reasonable buyer would have seen the certificate indicating he had read the back of the document and, at least looked at the back. If such a person had looked at the back he would have seen the disclaimer, which was in bold face. We hold the implied warranties of merchantability upon which plaintiff brought counts II and III had been disclaimed by Mobile. The judgment on those counts must be reversed.

We note that in contesting the propriety of the judgment on counts I, II, and III, Mobile frames its contention on the theory the circuit court erred in denying motions by Mobile for summary judgment on those counts. Where, as here, the issue contained in a denied motion for summary judgment is then decided at trial, the ruling denying the summary judgment merges in the judgment entered after trial, and error in the denial cannot be raised on appeal from that judgment. (Schroeder v. Meier-Templeton Associates, Inc. (1984), 130 Ill. App. 3d 554, 474 N.E.2d 744.) Plaintiff has not raised this issue but has treated the contentions of Mobile as contending the pleadings and evidence at trial required judgment to Mobile at the conclusion of the trial. We have ruled on Mobile’s claims of error as to those counts in the same frame as has plaintiff.

Count IV was directed against Hayes. It alleged he violated various Federal regulations requiring the placement of a data plate on the mobile home and failed to comply with State law in delivering the mobile home to plaintiff with a required manufacturer’s certificate of origin. Plaintiff alleges that had those requirements been complied with, he would earlier have learned of the claimed defect in the mobile home roof. Plaintiff has not shown any authority which indicates a cause of action arises from the violation of those regulations and laws. If the count purports to charge fraud, it lacks the specificity, particularity, and certainty required to do so. (Trautman v. Knights of Columbus (1984), 121 Ill. App. 3d 911, 460 N.E.2d 350.) Hayes maintains the trial court erred in denying his motion to dismiss the count. We agree. The judgment on that count must be reversed.

On count V, the court entered a judgment on a jury verdict awarding plaintiff no compensatory damages ■ and $20,000 punitive damages. Punitive damages cannot be awarded when no compensatory damages, even in a nominal amount, have been awarded. Mc-Grew v. Heinold Commodities, Inc. (1986), 147 Ill. App. 3d 104, 497 N.E.2d 424.

As we have indicated, we reverse the judgment entered as to each of the counts.

Reversed.

LUND and SPITZ, JJ., concur.