author: JUSTICE McCULLOUGH

text:
      In re MARRIAGE OF THEODORE DANIEL JOHNSON, JR., Petitioner-Appellant, and SHAWNA SUE JOHNSON, Respondent-Appellee.
    Fourth District
    No. 4—92—0141
    Opinion filed November 12, 1992.

      Paul R. Wilson, Jr., Ltd., of Wilson & Lanto, of Rantoul, for appellant.
    John B. Hensley, of Dobbins, Fraker, Tennant, Joy & Perlstein, of Champaign, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Petitioner Theodore Daniel Johnson appeals the trial court’s denial of his motion to enforce the judgment of dissolution of marriage and the granting of respondent Shawna Sue Johnson’s petition to modify the judgment of dissolution of marriage. The parties were awarded a judgment of dissolution of marriage on May 23, 1989. A paragraph of that judgment indicated Shawna would retain possession of the marital residence, but upon certain conditions, the residence would be sold. One of these conditions, as stated in the judgment, was upon “petitioner’s” (Theodore’s) remarriage. Theodore remarried and sought to enforce the judgment through a sale of the marital residence. Shawna filed a petition pursuant to section 2—1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401) to modify the judgment, alleging it should indicate “respondent’s” (Shawna’s) remarriage would trigger the sale of the residence. The trial court denied Theodore’s motion to enforce the judgment and granted Shawna’s petition to modify the judgment. Theodore now appeals those decisions and we affirm the trial court.

Theodore and Shawna were married on August 21, 1982, and their marriage was registered in Champaign County, Illinois. They have two children, Stefanie (born March 4, 1983) and Teddie (born March 26, 1985)..Theodore and Shawna were granted a dissolution of marriage on May 23,1989, upon Theodore’s petition for dissolution.

As part of the judgment of dissolution of marriage, they were granted joint custody of the children with Shawna having physical custody and Theodore being allowed reasonable visitation. Paragraph H of the marital settlement agreement (agreement) stated:

“The parties own, in joint tenancy, a marital residence *** they shall retain ownership of that property in joint tenancy, but Respondent shall have the exclusive possession and the use thereof, and, if he has not already done so, then Petitioner shall forthwith surrender all keys thereto to Respondent. Respondent shall be responsible for making monthly mortgage payments thereon, and Petitioner shall be responsible for paying all taxes and insurance thereon. The parties shall also equally share any maintenance or repair work on the property, that costs $50.00 or more and that is reasonably necessary to maintain or enhance the market value of the property; *** in the event that the parties decide to offer the property for sale, Respondent shall first have the right to buy Petitioner’s interest therein from him. Should she choose not to do so, then Petitioner shall have the right to purchase Respondent’s interest therein from her. Should he choose not to do so, the property shall be offered for sale *** that parties shall sell the property upon the earliest of the following to occur: (1) Petitioner’s remarriage, (b) the emancipation of their younger child, or (c) their agreement to do so.” (Emphasis added.)

On September 1, 1990, Theodore remarried. Thereafter, on August 5, 1991, he filed a motion to enforce the judgment of dissolution of marriage. In that motion, Theodore recited the facts of the judgment of dissolution and specifically paragraph H of the agreement. Theodore alleged he had remarried and had made demand on Shawna to either exercise her option to purchase his part of the marital residence or to sell the property. Inasmuch as Shawna had failed to respond, Theodore sought an order by the court to force the sale of the property pursuant to the agreement.

On April 12, 1991, Shawna filed a petition pursuant to section 2— 1401 of the Code seeking to modify the judgment of dissolution of marriage. In her petition, Shawna alleged that at all settlement negotiations prior to the dissolution of marriage, as well as at the time the dissolution was awarded, the parties had agreed that it would be her remarriage which would trigger the sale of the marital residence. Shawna asserted the language in paragraph H of the agreement, which stated Theodore’s marriage was the event to trigger the sale of the marital residence, was a clerical error. Accordingly, Shawna sought to modify the judgment by striking the word “petitioner” from the last sentence of paragraph H of the agreement and inserting instead the word “respondent.” On April 16, 1991, Shawna filed a motion to dismiss (Ill. Rev. Stat. 1989, ch. 110, par. 2—619) Theodore’s motion to enforce the judgment of dissolution of marriage.

Thereafter, Theodore filed two motions to dismiss Shawna’s section 2—1401 petition pursuant to sections 2—615 and 2—619 of the Code (Ill. Rev. Stat. 1989, ch. 110, pars. 2-615, 2-619). Both of these motions to dismiss were denied.

On May 1, 1991, a hearing was held on Shawna’s section 2—1401 petition. Theodore testified he remarried on September 1, 1990. Theodore had hired Burt Greaves to represent him in the divorce proceedings with Shawna and he had authorized Greaves to enter into settlement negotiations. The paramount concern to Theodore during the negotiations was the security and welfare of the parties’ two children. Theodore agreed he wished to minimize any disruptions or unpleasant interferences in his children’s lives and also agreed that Shawna’s major concern was whether she would be able to meet her expenses as she was on a limited income. Theodore agreed to grant her possession of the residence so that she and the children had an adequate place to live.

Theodore recalled the terms proposed during the settlement negotiations and he admitted at one point he wished that Shawna’s having a male guest sleeping overnight at the house would be an event to trigger the sale of the house. He recalled other proposed terms regarding the splitting of the profits upon the sale of the house as well as division of who would pay the mortgage, the taxes, and the insurance. Theodore admitted that during the nine months of negotiations, there were times where a proposed term of the agreement would be that Shawna’s remarriage would trigger the sale of the residence.

Theodore testified that on May 9, 1989, he, Shawna, and their attorneys met at Shawna’s attorney’s office to complete the settlement negotiations. At that time, Theodore still wished that Shawna’s having male guests overnight would constitute an event which would trigger the sale of the marital residence. However, after Shawna’s resistanee to this term, Theodore agreed to drop it from the negotiating process. The parties finally agreed upon the terms of the settlement at this time.

After the settlement conference, Shawna's attorney drafted a judgment of dissolution which he thought contained the verbal agreement reached on May 9, 1989, and sent a copy to Greaves. Theodore testified he was handed a copy of the agreement at the courthouse on the day the judgment of dissolution of marriage was granted, at which time he signed it. Shawna was not present at the hearing that day as she had already signed the agreement. Theodore testified that the terms of the agreement were what he had previously agreed to and that is why he signed the agreement.

Theodore’s affidavit indicated his rationale in making the agreement was that “I did not wish to remain liable for any outstanding indebtedness on the former marital residence at a time when I married and sought to make a fresh start on my own.” Theodore guessed he adopted this rationale at the time he signed the agreement because “the agreement says what it says.”

On cross-examination, Theodore admitted he did not remarry until nearly V-k years after the dissolution. He stated that Greaves did a lot of negotiating for him during the settlement negotiations, but that he had final approval as to any terms. Theodore testified it was not his intention at the time he entered into the agreement to provide a place indefinitely for his wife and any live-in friend she might have nor was it his intention to remain liable on the mortgage on that residence in the event he remarried and was unable to get mortgage financing on his own home. Theodore stated he read the agreement “front to back” before he signed it and it correctly and accurately stated his intentions in the settlement. His purpose in filing the motion to enforce the judgment was to put him in a position where he would not be liable on Shawna’s mortgage so that he could secure one for another house.

Finally, on redirect examination, Theodore stated that when he signed the agreement, it was his intention not to remain liable on the mortgage on the marital residence once he started his new life. However, he did not remember discussing that at the settlement conference. But, he believed the settlement conference resulted in what he thought was the agreement he signed.

Shawna testified the first time she became aware that it was Theodore’s remarriage which would trigger the sale of the marital residence was when she received a letter from his attorney regarding his demand for her to exercise her option to purchase the house. She stated she and Theodore reached the final terms of the agreement at the May 9, 1989, conference. Shawna testified that the possibility of Theodore’s remarriage triggering the sale of the residence was never discussed throughout the entire negotiations and that the agreement was that her remarriage would trigger the sale of the residence. Shawna believed the agreement merely contained a clerical error. She testified she read the document but did not catch the word “petitioner” instead of “respondent” because she was unfamiliar with legal jargon. She understood that the document, as it reads, states the residence shall be sold upon Theodore’s remarriage.

On cross-examination, Shawna stated she read the agreement a couple of times before she signed it and returned it to her attorney. It was her intention that the residence would be sold only upon her remarriage. She agreed to this because she thought, if she would remarry, she would pick up and start anew.

Burt Greaves testified he was hired by Theodore to represent him in his divorce proceedings in the fall of 1987 and the case ended in May 1989. He agreed that Shawna’s attorney, John Hensley, prepared and submitted to him, shortly after the final settlement negotiation conference, the judgment of dissolution. Greaves approved it as to form.

He acknowledged that during the course of the negotiations, he and Hensley exchanged correspondence. These letters were admitted into evidence without objection. When Greaves received the proposed judgment, he believed it represented the agreement the parties had reached on May 9. Greaves testified that at the conference on May 9, the agreement the parties reached was that Shawna’s remarriage would be the event to trigger the sale of the marital residence. Greaves testified the remarriage of Theodore as a triggering event to sell the residence was “never discussed, never raised, never tendered.” Finally, he indicated the exhibits contained discussions of the various events which would trigger the sale of the residence. Greaves believed the agreement erroneously stated something that was not his understanding of the agreement the parties reached at the May 9 conference.

John Hensley testified that he participated in the settlement negotiations with Greaves and that he attended the settlement conference with the parties and Greaves on May 9, 1989. Hensley opined that he made an error when he drafted the judgment of dissolution. This mistake was made by inserting the phrase “petitioner’s remarriage” when it should have read “respondent’s remarriage.” It was his belief that, throughout the entire negotiation process as well as after the settlement conference, the issue of Theodore’s remarriage triggering the sale of the residence was never raised. Hensley stated that given the financial position of both parties, and the fact that the children were residing with Shawna, he would have counseled her not to sign the agreement if such a suggestion had been made. He would not have considered this to be in the best interests of her or the children.

The trial court concluded that Theodore read the agreement and signed it knowing what it in fact stated. The court found Shawna failed to prove by clear and convincing evidence that a mutual mistake occurred. Accordingly, her section 2—1401 petition was denied.

On May 31, 1991, Shawna filed her post-trial motion, which sought to have the court vacate its denial of her section 2—1401 petition, and a motion to amend her petition to include allegations of unilateral mistake accompanied by fraud. Theodore filed a motion to dismiss the post-trial motion. He also filed a motion to strike the motion to amend the petition. Following a hearing on August 20, 1991, the trial court granted Shawna’s post-trial motion, vacated the order denying her section 2—1401 petition, and granted her a new hearing on the section 2—1401 petition.

At the hearing on the amended petition, Theodore testified he and Shawna reached a verbal agreement as to the conditions upon which the residence would be sold but that the document that is part of the judgment of dissolution of marriage is not reflective of the verbal agreement they reached. He testified after the May 9, 1989, settlement conference, he and Shawna agreed that the residence would be sold upon her remarriage. He and Shawna had no further discussions between the settlement conference and the court hearing on May 23, 1989.

The first time Theodore saw the written agreement was at the hearing on May 23, 1989, when he signed it. At no time prior to that had he ever seen anything in writing which stated the residence would be sold upon his remarriage. Theodore did not point out the mistake to Hensley at that time nor did he point out the mistake to his attorney or to Shawna. He felt that there was no need to point it out to Shawna because he believed she understood the agreement since she had already signed it. Until May 23, 1989, Theodore was unaware that he and Shawna had reached an agreement that the house would be sold upon his remarriage.

Theodore agreed that at no time did he ever propose to Hensley or Shawna that the house should be sold upon his remarriage. Finally, Theodore stated that after the settlement conference on May 9, the parties had agreed that the house would be sold on the earliest of three things: (1) their agreement to sell the house; (2) their youngest child reaching 18 years of age; or (3) Shawna’s remarriage.

On clarification, Theodore testified he recognized Shawna’s signature on the agreement although he had not seen her sign it. He reiterated the fact that he read the agreement and understood that it stated that the residence would be sold upon his remarriage. He explained he waited so long to seek enforcement of the judgment because he was not in a hurry and decided it was time to finally get this matter settled.

Burt Greaves again testified that he represented Theodore during the divorce proceedings and that he conveyed all settlement proposals made by Shawna to Theodore. It was his opinion that the parties had reached an agreement as to all ancillary matters at the May 9 settlement conference. Greaves testified that it was Shawna’s remarriage that would trigger the sale of the residence. At the settlement conference, no suggestion was ever made that the house would be sold upon Theodore’s remarriage. He stated he never did anything to trick Shawna or exercise any undue influence or coercion over her. Upon questioning by the trial court, Greaves indicated he approved the judgment incorporating the agreement but that it did not correctly reflect the agreement he had reached with Hensley. Greaves was unable to recall exactly when he became aware of this fact. He testified the agreement filed differed from the one he orally reached with Hensley with respect to whose marriage would trigger the sale of the residence. He testified that they had agreed that it would be Shawna’s remarriage which would cause the sale of the residence.

The trial court concluded the parties, through their agents, reached a settlement agreement as to all ancillary matters and that Hensley would draft the agreement pursuant to the matters decided at the conference on May 9, 1989. The court further concluded that the day after Shawna signed the document, it was presented to Theodore, but contained a scrivener’s error regarding the contingency of the sale of the marital residence. The court specifically found that although the parties agreed that Shawna’s remarriage would trigger the sale of the home, the document contained language indicating it was Theodore’s remarriage which would cause the sale. Neither of the attorneys noticed the error. However, the court found Theodore did notice the difference in the provision, understood what it meant, and signed the document despite knowing it was different than what had been verbally agreed upon. The court concluded there was no mutual mistake of fact because Theodore was not mistaken about the contents of the document. However, the court found the agents of the parties made a mutual mistake of fact. The court then granted Shawna’s petition to the extent that the judgment of dissolution of marriage should reflect it would be her remarriage rather than Theodore’s which would cause the sale of the house. Theodore timely filed his notice of appeal.

For his first issue, Theodore contends the trial court lacked subject-matter jurisdiction to entertain Shawna’s section 2—1401 petition. Theodore suggests the trial court’s change of the judgment order is equivalent to a property modification. The issue has no merit.

Section 510(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) provides:

“The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.” (Ill. Rev. Stat. 1989, ch. 40, par. 510(b).)

Provisions of what is construed as a property settlement are not modifiable or revocable unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State. In re Marriage of Lowe (1981), 101 Ill. App. 3d 317, 318-19, 427 N.E.2d 1367, 1369.

Section 2—1401(a) of the Code provides “[r]elief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401(a).) The purpose of the petition is to bring before the court facts which had they been known at trial would have prevented entry of the contested judgment. (People v. Sanchez (1989), 131 Ill. 2d 417, 419, 546 N.E.2d 574, 576.) A section 2—1401 petition invokes the equitable powers of the court as justice and fairness require. Mohr v. Pridemore (1986), 151 Ill. App. 3d 341, 343, 502 N.E.2d 754, 756.

The section 2—1401 petition brought by Shawna was not a property settlement modification which would have violated section 510(b) of the Act. Rather, she brought the petition to merely correct a typographical error and reform the agreement to accurately reflect the intent of all the parties involved. The fact that the agreement stated something other than what the parties had agreed upon would be such as to prevent a court from entering a final order. Inasmuch as Shawna’s petition alleged a typographical error, the petition was the proper method of seeking a modification of the judgment. Accordingly, the trial court had subject-matter jurisdiction to hear her petition.

Next, Theodore asserts the trial court erred in considering parol evidence relating to the settlement negotiations. Specifically, he suggests the consideration of the letters between the attorneys prior to the final settlement conference and the testimony of the witnesses as to what was agreed upon at that conference was improper since the agreement is unambiguous and the parties’ intent must be gleaned solely from it.

Under the “parol evidence rule,” if the instrument appears complete, certain, and unambiguous, then parol evidence of a prior or contemporaneous agreement is inadmissible to vary the terms of the instrument. (Hartbarger v. S C A Services, Inc. (1990), 200 Ill. App. 3d 1000, 1009, 558 N.E.2d 596, 601.) An agreement reduced to writing must be presumed to speak the intention of the parties who signed it, which intention is to be determined from the language used and such agreement is not to be changed by extrinsic evidence. (Shultz v. Delta-Rail Corp. (1987), 156 Ill. App. 3d 1, 12, 508 N.E.2d 1143, 1150.) It is well settled that the parol evidence rule is no bar to the admission of evidence on the question of mutual mistake, and this is so even when the instrument to be reformed is clear and unambiguous on its face. Thus, parol evidence may be used to show the real agreement between the parties when a mistake has been made and the evidence is for the purpose of making the contract conform to the original intent of the parties. (Beynon Building Corp. v. National Guardian Life Insurance Co. (1983), 118 Ill. App. 3d 754, 760, 455 N.E.2d 246, 250.) Parol evidence may be admissible to show the concerns of the parties prior to and contemporaneous with the signing of the written agreement. Rittenhouse v. Tabor Grain Co. (1990), 203 Ill. App. 3d 639, 649, 561 N.E.2d 264, 271.

A mutual mistake which may be established by parol evidence is a mistake common to both contracting parties wherein each labors under the same misconception; thus, when there is a mutual mistake, the parties are in actual agreement but the agreement in its written form does not express the parties’ real intent. Parol evidence is admissible to establish the fact of fraud or mistake. (Bank of Naperville v. Holz (1980), 86 Ill. App. 3d 533, 538, 407 N.E.2d 1102, 1106.) When a mutual mistake or fraud is alleged, parol evidence is admissible to show the true intent and understanding of the parties. The parol evidence rule is no bar to the admission of evidence on the question of mutual mistake or fraud. Ballard v. Granby (1980), 90 Ill. App. 3d 13, 16, 412 N.E.2d 1067, 1070.

The trial court properly considered parol evidence to show the real agreement between the parties and their intentions. Shawna alleged a mutual mistake of fact in her section 2—1401 petition and thus parol evidence was admissible to show the true intent and understanding of the parties. All the witnesses testified that the parties agreed on May 9, 1989, that Shawna’s remarriage would trigger the sale of the marital residence. Thus, they were mistaken about a fact contained within the agreement. Theodore testified he realized the agreement read differently than what had previously been agreed upon; however, he chose to remain silent about this difference. Regardless of Theodore’s motives for remaining silent, he realized the agreement contained a mistake of fact. The agreement contained a fact which was different than what was agreed upon earlier. Hence, the evidence established a mutual mistake of fact and the court properly considered parol evidence of the settlement negotiations.

Theodore next alleges the trial court erred in allowing into evidence the testimony of Burt Greaves. He suggests several of Greaves’ statements are matters protected by the attorney-client privilege and thus inadmissible. Shawna responds that these matters were not privileged communications but merely the terms of the parties’ negotiated settlement.

The purpose of the attorney-client privilege is to encourage and promote full and frank consultation between a client and legal advisor by removing the fear of compelled disclosure of information. (Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 103, 117-18, 432 N.E.2d 250, 256.) The essential elements for the creation and application of the attorney-client privilege have been defined as follows:

“ ‘ “(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.” [Citation.]’ ” (People v. Williams (1983), 97 Ill. 2d 252, 294, 454 N.E.2d 220, 240, quoting People v. Adam (1972), 51 Ill. 2d 46, 48, 280 N.E.2d 205, 207.)

The attorney-client privilege only applies to matters that are confidential. (McDonald’s Corp. v. Butler Co. (1987), 158 Ill. App. 3d 902, 913, 511 N.E.2d 912, 920.) In order to be a confidential communication protected by the attorney-client privilege, the parties must have intended that the contents of that communication not be disclosed to a third party other than in the rendition of legal services. (People v. Adams (1983), 116 Ill. App. 3d 315, 322, 451 N.E.2d 1351, 1356.) Further, the attorney-client privilege is limited solely to those communications which the client expressly made confidential or which he could reasonably believe under the circumstances would be understood by the attorney as such. (Waste Management, Inc. v. International Surplus Lines Insurance Co. (1991), 144 Ill. 2d 178, 190, 579 N.E.2d 322, 327.) A communication for purposes of disclosure is not privileged. (In re Estate of Ragen (1979), 79 Ill. App. 3d 8, 15, 398 N.E.2d 198, 203.) Communications made by a client to an attorney for the purpose of being disclosed by him to others do not fall within the rule of privilege. (Spencer v. Burns (1952), 413 Ill. 240, 248, 108 N.E.2d 413, 417.) Matters which the client intends his attorney to disclose to a third person (who is not the agent of either the client or the attorney) are not privileged. People v. Werhollick (1970), 45 Ill. 2d 459, 462, 259 N.E.2d 265, 266.

The following are the statements which Theodore claims were privileged communications:

(1) the remarriage of Theodore as an event to trigger the sale of the residence “was never discussed, never raised, never tendered”;
(2) to the best of Greaves’ knowledge, Theodore’s remarriage as a trigger for the sale of the marital residence at no time played a part in the settlement negotiations;
(3) Greaves thought he knew what the parties had agreed to after the May 9 conference and he expected the agreement drafted by Shawna’s attorney would so reflect;
(4) Greaves’ belief that the agreement does not accurately reflect the verbal agreement reached by the parties;
(5) Greaves informed Theodore of all settlement proposals made on Shawna’s behalf by her attorney during the negotiations;
(6) Greaves conveyed all offers authorized by Theodore to be so conveyed to Shawna’s attorney;
(7) Greaves’ opinion that the settlement of all ancillary matters had been reached by the parties on May 9;
(8) at the time the judgment was entered, it had not been brought to Greaves’ attention that the draft settlement agreement incorporated into the judgment did not accurately reflect what had been reached in the May 9 conference with respect to the triggering event of the sale of the marital residence; and
(9) Greaves did not learn of the discrepancy in the judgment until much later after its entry.

None of these statements by Greaves can be characterized as confidential communications. They all involve the terms of the negotiations between the parties which by their very nature are not intended to be confidential. Likewise, Greaves’ beliefs that the parties had reached an agreement on May 9, and that the written agreement did not accurately reflect what he believed had been orally agreed upon, are not confidential communications. They are not statements made by Theodore to Greaves; they are simply Greaves’ beliefs. Accordingly, the testimony of Greaves did not violate the attorney-client privilege.

Last, Theodore argues Shawna failed to carry her burden of proof to support the trial court’s granting of her section 2—1401 petition. He suggests Shawna failed to establish eithér mutual mistake of fact or a unilateral mistake coupled with fraud by clear and convincing evidence.

To be entitled to relief under section 2—1401, the petitioner must affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2— 1401 petition for relief. The quantum of proof necessary to sustain a section 2—1401 petition is a preponderance of the evidence. Whether a section 2—1401 petition should be granted lies within the sound discretion of the circuit court depending upon the facts and equities presented and will be disturbed on review only if the reviewing court finds an abuse of discretion. Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220-21, 499 N.E.2d 1381, 1386.

A petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1965, ch. 110, par. 72) (now section 2—1401 of the Code) has been recognized as a proper ground for relief for a divorce decree which incorporates a written agreement which fails to express the real intention of the parties through mutual mistake, or through mistake of one side and fraud on the other where the proof clearly and convincingly shows that a mistake was made and that it was mutual and common to both parties. (Groak v. Groak (1965), 64 Ill. App. 2d 439, 442-43, 212 N.E.2d 139, 141.) Relief has been deemed available under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72 (now section 2—1401 of the Code)) if a divorce decree incorporating a written agreement fails to express the real intentions of the parties because of a mutual mistake concerning a property settlement. In re Marriage of Shelton (1984), 127 Ill. App. 3d 775, 781, 469 N.E.2d 618, 623.

In order to entitle a party to reformation of a contract, he must show a mistake by both parties or a mistake by one party which is known and concealed by the other party. (Michigan Avenue National Bank v. Evans, Inc. (1988), 176 Ill. App. 3d 1047, 1056, 531 N.E.2d 872, 878.) A “mutual mistake of fact” exists for purposes of the reformation of a written instrument, when the contract has been written in terms which violate the understanding of both parties. West Chicago State Bank v. Rogers (1987), 162 Ill. App. 3d 838, 851, 515 N.E.2d 1261, 1270.

Shawna sustained her burden of proof to show a mutual mistake of fact by the parties. First, a mutual mistake of fact occurred because Shawna established through the testimony of herself and the attorneys as well as Theodore that at the conference on May 9, the parties agreed that it would be her remarriage which would trigger the sale of the marital residence. Even Theodore agreed that at the May 9 conference, it was Shawna’s marriage which would trigger the sale of the residence. Shawna testified that she was unaware that there was a mistake in the settlement agreement until she received a demand from Theodore to exercise her option to purchase his interest in the property. Theodore testified he was aware of the mistake at the time he signed the agreement on the 23rd of May just prior to the entry of the judgment of dissolution. This indicates that he was aware there was a mistake, and that the agreement reflected something that was not the agreement of the parties, as had been previously reached. Thus, there was a mutual mistake of fact as to what was contained in the agreement subsequently incorporated into the judgment of dissolution.

In conclusion, we affirm the trial court’s granting of Shawna’s section 2—1401 petition. First, the trial court had subject-matter jurisdiction to hear her petition. Second, parol evidence was properly admitted to determine the true intentions of the parties because Shawna alleged mutual mistake even though the agreement was unambiguous on its face. Third, the testimony of Theodore’s attorney, Burt Greaves, did not invade the attorney-client privilege as the matters to which he testified were not confidential communications. The evidence is overwhelming that the idea of Theodore’s remarriage triggering the sale was never discussed prior to the agreement being prepared and was not a part of the agreement. Nowhere in the husband’s testimony at the negotiation stage did he ever mention the issue of selling the house when he remarries. It is a strain on the system of justice to find any merit to the ex-husband’s petition and his appeal certainly could be considered to be frivolous. Shawna sufficiently carried her burden of proof by establishing through clear and convincing evidence mutual mistake of fact.

Affirmed.

GREEN, P.J., and KNECHT, J., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    JACQUELINE ELLIG et al., Indiv. and as Special Adm’rs of the Estate of Kathleen Ellig, Deceased, Plaintiffs-Appellees and Cross-Appellants, v. DELNOR COMMUNITY HOSPITAL, Defendant-Appellant and Cross-Appellee.
    Second District
    No. 2—91—1213
    Opinion filed November 10, 1992.

      David P. Meyer, of Hinshaw & Culbertson, of Lisle, and D. Kendall Griffith, of Hinshaw & Culbertson, of Chicago (Robert G. Black, of counsel), for appellant.
    Patricia N. Hale, of Canel & Hale, Ltd., of Chicago (James H. Canel, of counsel), for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

This medical malpractice action was brought by Jacqueline and Scott Ellig, individually and as special administrators of the estate of Kathleen Ellig, deceased, against Delnor Community Hospital. Plaintiffs sought damages under the Wrongful Death Act (Ill. Rev. Stat. 1987, ch. 70, pars. 1, 2) and the Survival Act (Ill. Rev. Stat. 1987, ch. 110½, par. 27—6) for the death of their decedent, an undiagnosed twin. Following trial, a jury returned a verdict in favor of plaintiffs in the total amount of $879,519.35.

Upon defendant’s post-trial motion, the Kane County circuit court reduced the total damage award to $866,415.35. On appeal, defendant asserts the following points of error: (1) that plaintiffs failed to prove conscious pain and suffering; (2) that the trial court failed to advise the jury of defendant’s theory regarding sole proximate cause; (3) that plaintiffs failed to prove defendant proximately caused decedent’s injury or death; (4) that the trial court failed to advise the jury of a directed finding; (5) that the trial court gave direct judicial recognition to a fact in controversy; (6) that the trial court gave erroneous instructions on the appropriate standard of care; (7) that misstatements of plaintiffs’ counsel necessitate a new trial; and (8) that the Survival Act and Wrongful Death Act awards are excessive and require remittitur. Plaintiffs’ cross-appeal asserts error in the trial court’s reduction in the jury’s original award. We reverse and remand.

On February 8, 1988, Jacqueline Ellig was admitted to Delnor Community Hospital because she was experiencing labor pains and was ready for delivery. During the course of this pregnancy, Jacqueline’s weight had climbed from less than 120 pounds to 178 pounds. At 8:26 p.m., a baby boy was delivered. After placing the baby in an isolette for care and observation, Jacqueline’s physician, Dr. Taylor, returned to Jacqueline for delivery of the placenta. After delivering the placenta, Dr. Taylor noticed that the abdomen was still larger than he had expected. Upon further examination, he discovered an undiagnosed twin.

Dr. Taylor checked the undiagnosed twin’s position and found it presented head first, the normal position for a vaginal delivery. Dr. Taylor asked a nurse to listen for the baby’s heart tones, ruptured the second water bag and attempted to deliver the second baby. However, the womb contracted causing a presentation of the baby unsuitable for vaginal delivery. Dr. Taylor then attempted to alter the baby’s position in order to facilitate delivery. Dr. Taylor testified that his efforts lasted for approximately 10 to 14 minutes. Throughout this process, none of the nurses monitoring the baby’s condition heard heartbeats. Moreover, the baby’s muscles were flaccid and the baby did not respond to a pin prick on its finger or hand.

Dr. Taylor testified that it was his impression that the baby was stillborn, but that a cesarean section needed to be performed. He testified that, if he had heard heart tones, he would have gone ahead with a local anesthetic that was available and performed the cesarean section immediately. Because Dr. Taylor had not performed a cesarean section using a local anesthetic since 1967, and because he believed the baby was not viable, he waited for the anesthesiologist to arrive before performing the cesarean section. Dr. Cha, an anesthesiologist, was notified of his needed presence in the delivery room, arrived after some delay, and administered spinal anesthesia at 9:23 p.m. The baby was delivered at 9:30.

Upon her delivery, Kathleen Ellig was found to have no spontaneous respirations and no cardiac function. Moreover, she lacked discernible muscle activity. Dr. Murphy, another physician present at the delivery, was able to reestablish the baby’s heart function quickly, and, thus, opined that the baby probably had been without oxygen for approximately 10 minutes. It was Dr. Murphy’s opinion that, at birth, Kathleen was tremendously stressed but that she was not an infant without life.

Dr. Cha intubated the baby by placing an endotracheal tube into the trachea in order to administer oxygen. This tube was placed into the baby’s mouth, directed to the junction of the airway or esophagus, and inserted directly into the trachea. After five minutes of.heart and respiratory treatment the baby still had no reflexes, respiration; or muscle tone. The doctors only first observed color in the baby after 10 minutes. The baby never started breathing on its own. She was subsequently transferred to Lutheran General Hospital for neonatal intensive care services. While the baby exhibited some gasping attempts at breathing, and twitching or seizure activity, her extremities were stiff. The baby never showed reflexes or responses to painful stimuli throughout her time at the hospital and transport.

The neurologist at Lutheran General Hospital concluded that the baby was incapable of surviving and recommended discontinuing treatment. Jacqueline and Scott Ellig agreed, and treatment was withdrawn on February 16, 1988. The death certificate indicated that an absence of blood supply to the brain and liver was among the causes of death.

Count II of plaintiffs’ complaint alleged that Delnor (1) failed to provide anesthesia in a timely fashion; (2) failed to require anesthesia service to respond to the needs of obstetricians performing emergency cesarean sections; (3) failed to correct a right main stem intubation resulting in a collapse of the baby’s lung; and (4) manipulated resuscitative equipment so as to cause a right main stem intubation. The jury awarded plaintiffs $162,500 for pain and suffering decedent experienced as a result of her injuries, $700,000 for the wrongful death of decedent, $16,880.35 for reasonable medical expenses incurred for care, treatment and services rendered to decedent, and $139 for burial expenses incurred. In its post-trial motion, defendant asked that the award be reduced pursuant to section 2—1205 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1205), which allows reduction of a medical malpractice judgment by 100% of the benefits received for medical, hospital and nursing charges. The court granted this motion and reduced to $3,776.35 plaintiffs’ recovery for medical expenses.

Defendant first argues that plaintiffs cannot recover damages under the Survival Act because they failed to prove conscious pain and suffering. We agree. While plaintiffs’ medical experts in this case provided testimony about Kathleen’s viability, their medical hypotheses failed to contradict sufficiently the eyewitness testimony that Kathleen was in an unconscious state from the time she was discovered until her subsequent death.

A survival action allows for the recovery of damages for injuries sustained by the deceased up to the time of death. (Wyness v. Armstrong World Industries, Inc. (1989), 131 Ill. 2d 403, 410.) According to Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, a survival action acts to preserve rights of action for personal injury which accrued before the death of the injured person. In determining that a survival action may be had concurrently with a wrongful death action, the court noted the need to preserve causes of action relating to substantial loss of earnings, medical expenses, prolonged pain and suffering, as well as property damage sustained which would otherwise be extinguished upon the injured party’s death. Murphy, 56 Ill. 2d at 431.

Subsequent decisions addressing a pain and suffering claim in a survival action have required the victims to have been conscious of their pain and suffering before succumbing to the injuries. For example, in Maras v. Bertholdt (1984), 126 Ill. App. 3d 876, we reversed a dismissal of an action alleging that decedent experienced pain and suffering in the context of an automobile accident. The trial court determined that no action could be had because there was either very little pain or suffering or that such pain and suffering only lasted for a very short period of time. On appeal, we explained that the duration of pain and suffering should determine the amount of, but not entitlement to, recovery. We further noted that, as a result of the dismissal, no evidence was introduced on the question of whether decedent was conscious for any period of time following the accident. (Maras, 126 Ill. App. 3d at 890.) Therefore, we remanded the case for reinstatement of plaintiff’s complaint, which sought damages for decedent’s pain and suffering which she experienced during a period of consciousness following the accident. (Maras, 126 Ill. App. 3d at 890.) Because the evidence in Maras indicated that decedent remained unconscious from the time she was found until the time she died in the hospital several hours later, we determined that “the maximum time period for which plaintiff could conceivably establish pain and suffering was from the time the accident occurred until she was located in the field approximately 20 minutes later.” Maras, 126 Ill. App. 3d at 890.

In Cooper v. Chicago Transit Authority (1987), 153 Ill. App. 3d 511, the court held that evidence concerning decedent’s injuries assisted the jury in determining if decedent felt any “conscious pain in order to recover under the Survival Act.” (Emphasis added.) (Cooper, 153 Ill. App. 3d at 522.) In Moore v. Swoboda (1991), 213 Ill. App. 3d 217, the court stated that there are no Illinois cases requiring medical testimony establishing consciousness prior to death as a prerequisite to obtaining damages in a survival cause of action. Instead, lay testimony describing decedent’s actions prior to death, together with evidence concerning the decedent’s injuries, was sufficient to support a pain and suffering claim. In affirming the pain and suffering damages award, the court highlighted facts and evidence which indicated that decedent was conscious prior to his death. (Moore, 213 Ill. App. 3d at 235.) Likewise, in Glover v. City of Chicago (1982), 106 Ill. App. 3d 1066, the court explained that a claim for payments for damages arising from pain and suffering may be had where there is evidence indicating that decedent was conscious prior to her death.

In light of these cases, we determine that consciousness is a requisite element of a complaint seeking recovery for pain and suffering. Furthermore, in presenting such a claim, the evidence involved must do more than provide mere speculation that the decedent was conscious and suffered pain. (Bart v. Union Oil Co. (1989), 185 Ill. App. 3d 64, 68.) In Bart, no witnesses testified to witnessing the decedent’s pain and suffering. Instead, a pathologist testified that, based upon his knowledge of the relevant facts, the decedent may have survived an explosion and suffered pain prior to his death. The expert also testified that it was equally probable that no such suffering occurred prior to a second explosion. The court determined this testimony an insufficient basis to support a survival claim verdict awarding damages for pain and suffering.

In the present case, plaintiffs offered no testimony beyond mere speculation that the decedent/infant experienced any conscious pain and suffering during the time frame of the hospital’s alleged tort. While there is no dispute between the experts in the case that an infant is capable of experiencing pain prior to birth, insufficient evidence was presented indicating that this infant actually experienced such pain. Under these circumstances, the award for conscious pain and suffering below cannot be supported as against the hospital.

While Dr. Taylor attempted to manipulate the undiagnosed twin’s position to facilitate vaginal delivery, efforts were made to assess the baby’s condition using an external monitor sensitive to the baby’s heartbeat. By the time Dr. Taylor concluded that he could not get the baby into the right position for delivery, he also knew no heart tones were being registered on the monitoring equipment. While trying to move the arm and hand of the undelivered baby, he received no responsive movement from the baby’s fingers. Furthermore, the baby’s arm did not have any muscle tone to it, the baby displayed no reflexes, and the baby did not respond when its finger was pricked with a small needle. Based upon these facts, Dr. Taylor believed that the baby was a stillborn.

Plaintiffs highlight testimony indicating that the baby was not a stillborn. For example, following delivery, her heart functions responded to resuscitation. Plaintiffs also highlight testimony that the baby was a viable infant capable of perceiving pain and that the oxygen deprivation causing her fetal distress probably was a competent source of pain. However, while these opinions may be valid in a general medical sense, they do not comport with the direct evidence on record indicating the baby’s lack of consciousness. Indeed, for the remainder of her mechanically sustained life, Kathleen continued to lack muscle tone, responses to painful stimuli, and physical reflexes. Therefore, in light of plaintiffs’ failure to prove consciousness of the decedent during the time frame of the hospital’s alleged tort, the amounts awarded for pain and suffering must be reversed.

We next address defendant’s claim that plaintiffs failed to establish that the alleged deviations from the standard of care by Delnor proximately caused the decedent’s injury and death. Specifically, defendant asserts that the trial court erred in refusing a motion for directed verdict defendant made at the close of plaintiffs’ case. This motion argued that plaintiffs failed to establish a causal link between the alleged deviations from the standard of care and the decedent’s injury and death.

We determine that defendant’s argument in this regard shall not be considered because it was not properly preserved in defendant’s post-trial motion. (Gerwig v. Bruere (1989), 181 Ill. App. 3d 609, 613.) Supreme Court Rule 366(b)(2)(iii) states:

“A party may not urge as error on review of the ruling on his post-trial motion any point, ground, or relief not specified in the motion.” (134 Ill. 2d R. 366(b)(2)(iii).)

This rule is also reflected by section 2—1202 of the Code of Civil Practice which provides in part:

“Reserved ruling on motion for directed verdict — Post-trial motions in jury cases, (a) If at the close of the evidence, and before the case is submitted to the jury, any party moves for a directed verdict the court may (1) grant the motion or (2) deny the motion or reserve its ruling thereon and submit the case to the jury. If the court denies the motion or reserves its ruling thereon, the motion is waived unless the request is renewed in the post-trial motion.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 110, par. 2—1202(a).

Defendant here has failed in its post-trial motion to renew the motion for directed verdict on the issue of proximate cause with respect to the wrongful death of decedent. Therefore, defendant has waived its right to review the denial of the directed verdict below. (American National Bank & Trust Co. v. J & G Restaurant, Inc. (1981), 94 Ill. App. 3d 318.) It is not our function to correct those errors alleged on appeal which were not first presented to the trial court for its consideration. Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344.

Defendant next argues for a retrial on the grounds that the trial court refused defendant’s instructions on sole proximate cause. We agree and find this error sufficiently prejudicial to warrant a new trial.

During the jury instruction conference, defendant tendered the long forms of Illinois Pattern Jury Instructions, Civil, Nos. 12.04 and 12.05 (3d ed. 1989) (hereinafter IPI Civil 3d) on proximate cause.

The long form of IPI Civil 3d No. 12.04 tendered by defendant provided:

“More than one person may be to blame for causing an injury. If you decide that the defendant was negligent and that its negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.
However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.” See IPI Civil 3d No. 12.04.

The long form of IPI Civil 3d No. 12.05 tendered by defendant provided:

“If you decide that a defendant was negligent and that its negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may also have been a cause of the injury.
However, if you decide that the sole proximate cause of injury to the plaintiff was something other than the conduct of the defendant, then your verdict should be for the defendant.” See IPI Civil 3d No. 12.05.

The trial court refused both of these instructions. Instead, the court accepted the short form of the instructions tendered by plaintiffs. Thus, the second paragraph of each instruction was excluded. As a result, the jury did not receive instructions with respect to the issue of sole proximate cause.

The notes to IPI Civil 3d Nos. 12.04 and 12.05 state that the second paragraph should be used only where there is evidence tending to show that the sole proximate cause of the occurrence was someone or something other than defendant. (IPI Civil 3d Nos. 12.04, 12.05, Notes on Use.) Defendant asserts that evidence was presented at the trial below which tended to show that Dr. Taylor, the physician who cared for Jacqueline, was the sole proximate cause of Kathleen’s injuries. Therefore, defendant argues, the “Notes on Use” guidelines were satisfied and the long forms of Nos. 12.04 and 12.05 should have been tendered to the jury.

The general rule is that the court must instruct the jury on all issues reasonably presented by the evidence. (Lounsbury v. Yorro (1984), 124 Ill. App. 3d 745.) Each party is entitled to have a jury adequately instructed on his theory of the case and failure to do so may require a new trial. Willhite v. Goodman (1978), 64 Ill. App. 3d 273, 275.

In the present case, one of defendant’s theories was that regardless of the timing of the arrival of anesthesia, the death of Kathleen was actually caused by the actions of Dr. Taylor. During closing arguments, counsel for defendant specifically stated that “it was in the hands of Doctor Taylor to have saved the baby.” In large part, defendant argued that Dr. Taylor failed to act appropriately to save the baby by doing a cesarean under local anesthesia because he thought the baby was stillborn. Counsel for plaintiffs clearly recognized defendant’s proximate cause theory as reflected by an in-chambers conversation in which he stated:

“MR. CANEL: I mean, your argument is a very simple argument. Your argument is that Taylor should have gone ahead with the local infiltrate. Sole proximate cause of the death of the baby.
MR. MEYER: And I should be able to explain why he should have done that.
MR. CANEL: No, he can explain it. He can explain it based on other findings in the record or other physical findings. He doesn’t have to explain it in terms of Taylor. He can say ‘cause I think it was a severe abruption and a severe abruption this baby was going to be compromised in five minutes or ten minutes or twenty minutes and etc., etc., etc.
MR. MEYER: That’s what I’m getting at.
MR. CANEL: Well, then, do it that way.
MR. MEYER: I think that’s what I am doing.
THE COURT: Well-
MR. CANEL: No, you’re not.
THE COURT: I think you’re directing it to this particular surgeon who performed this particular.
MR. CANEL: You want this jury to get the idea that it was Doctor Taylor’s fault and Doctor Taylor should have done something different.
MR. MEYER: And I think I can do that.
THE COURT: But I would prefer that you do it in the abstract [sic].”

Plaintiffs countered that the delayed arrival of anesthesia was the cause of death. Dr. Gerbie, an expert testifying on plaintiffs’ behalf, explained that, in his view, Dr. Taylor caused a partial abruption of the second twin’s placenta when he tried to deliver the afterbirth of the first twin. Thus, Kathleen’s placenta was partially separated from the mother’s uterus with a resultant reduction of oxygen supply. Dr. Gerbie opined that this abruption increased in severity over time and resulted in the baby’s cardiac arrest prior to the time of its delivery. Dr. Gerbie further opined that a 30- to 35-minute window of opportunity existed during which Kathleen could have been delivered with her heart beating and capacity to breathe intact. Plaintiffs’ position was that by the time the hospital’s anesthesiologist had arrived, this window of opportunity had closed.

This evidence, however, was rebutted by evidence presented at trial indicating that (1) the baby was not capable of supporting life at the time her existence was discovered and that (2) the actions of Dr. Taylor precluded all opportunities to preserve the baby’s life in spite of any delay by the hospital in providing general anesthesia. With respect to the first proposition, this evidence was discussed earlier in the context of addressing the pain and suffering issue above. With respect to the second proposition, several points are relevant.

First, defendant’s expert, Dr. Messitt, testified that obstetricians during 1988 regularly observed mothers in order to determine whether they were carrying twins. In the present case, Dr. Taylor never tested Jacqueline to discount the possibility of twins. Dr. Taylor testified, if he had known twins were present, he would have taken additional precautions ahead of time for delivery, including having anesthesia available when Jacqueline went into labor. This evidence indicates that a lack of proper diagnosis and failure to make proper arrangements may have been the sole proximate cause of the fatal injury rather than the hospital’s delay in providing general anesthesia.

Second, even without discovering the existence of a twin by the time Jacqueline went into labor, Dr. Taylor removed the first baby’s placenta. He did not check for a twin after delivery of Alexander, even though he admitted Jacqueline Ellig’s abdomen still looked larger than normal. The testimony of those present indicated that Dr. Taylor had some difficulty delivering the placenta of the first baby. Dr. Taylor testified that had he known of twins ahead of time, he would not have delivered the placenta because placentas for twins may overlap. Other experts testified that removal of the placenta following birth of the first twin caused abruption of the placenta to the second child, leading to asphyxia and injury. Thus, Dr. Taylor’s actions may have been the sole proximate cause of the fatal injury, regardless of the timing of anesthesia.

Third, Dr. Taylor may have been the sole proximate cause of the fatal injury by failing to deliver the decedent by cesarean under local anesthesia which was readily available. When nurses could not hear any fetal heart tones, and the baby failed to react to pin pricks, Dr. Taylor assumed the baby was stillborn or greatly stressed. He testified that he spent 10 to 14 minutes trying to manipulate the baby for vaginal delivery before requesting anesthesia. Experts testified that Dr. Taylor could have obtained a precise reading on the baby’s heart activity to determine exactly the baby’s condition by using an available electrocardiogram through an internal monitor, instead of the external listening device which was in fact used. Having properly assessed the baby’s condition, defendant’s expert opined that Dr. Taylor should have performed a cesarean within eight minutes by using local anesthesia, assuming the placenta of the second twin had separated from the wall of the mother’s uterus. Thus, there was evidence that Dr. Taylor was the sole proximate cause of the fatal injury by delaying and not immediately performing a cesarean by local anesthesia to save a severely compromised child.

In light of the facts presented above, we determine that sufficient evidence was presented by defendant such that the trial court erred in not instructing the jury on the issue of sole proximate cause. We next must determine whether this error requires a retrial. We hold that it does.

An erroneous instruction requires a new trial when prejudice has resulted. (Korpalski v. Lyman (1983), 114 Ill. App. 3d 563, 568.) In Korpalski, prejudice was found where the erroneous instruction affected the jury’s understanding of plaintiffs’ burden of proof with respect to the issue of proximate cause. In making its determination about the presence of prejudice, the court assessed whether the instructions, taken as a whole, were sufficiently clear so as not to mislead and whether they fairly and correctly stated the law. Korpalski, 114 Ill. App. 3d at 568.

We find prejudice in this case because the jury could have reasonably found, based on the evidence presented, that someone else was the sole proximate cause of the baby’s injuries. (McCall v. Chicago Board of Education (1992), 228 Ill. App. 3d 803, 810.) Testimony on plaintiffs’ behalf never established that the baby was alive upon discovery of her existence. Instead, the testimony only established that the extent of the abruption in conjunction with a delayed delivery precluded complete revival upon delivery. Thus, the case is a close one, and it is not completely clear as to when the fatal injury or injuries were incurred and by whom they were inflicted. In our view, if the sole proximate cause instruction is not justified in the present case, then circumstances where it would be justified are difficult to imagine.

By refusing the sole proximate cause instruction, the trial judge, in effect, decided for the jury that the child was neither stillborn nor injured solely by the actions of Dr. Taylor. However, these are questions of fact which the jury should have been given a fair chance to determine. As it stands, the short form of the instruction tells the jury that it is not a defense that someone or something else may be to blame. This instruction is implicitly biased towards the plaintiffs’ case. We determine that it is unfair where, as here, evidence was presented showing that another may have been the sole proximate cause of an injury but such evidence was not impartially presented by an appropriate instruction. Thus, the second paragraph of IPI Civil 3d No. 12.04 (and 12.05) must be given to the jury “in order to correct any negative implications arising from the first paragraph.” (Miyatovich v. Chicago Transit Authority (1969), 112 Ill. App. 2d 437, 443.) According to Miyatovich, “[wjithout the benefit of accurate wording to this effect, the jury might cease its inquiry after finding a defendant’s negligence to have been simply a cause of the injury, without considering whether it was a proximate cause thereof.” Miyatovich, 112 Ill. App. 2d at 443.

The defendant here presented sufficient evidence to indicate that, even if it was negligent, its negligence had no effect on the condition of the baby. However, the court did not allow this theory to be presented properly via the long form instruction which would have equally presented defendant’s theory simultaneously with the plaintiffs’ theory of the case. Therefore, we find that the refusal of the long forms of IPI Civil 3d Nos. 12.04 and 12.05 was error which prejudiced defendant and requires a new trial. In this same vein, we determine it to be error where the trial court prevented testimony or questioning on matters speaking to the question of whether another person or occurrence was the sole proximate cause of decedent’s injuries.

Defendant next argues that it was denied a fair trial because the trial court failed to advise the jury of a directed finding granted to defendant at the conclusion of plaintiffs’ case. This directed finding related to two allegations in plaintiffs’ complaint that Delnor Hospital’s personnel injured (negligently or otherwise) Kathleen with an endotracheal tube during post-delivery resuscitation efforts. At the close of its case, defendant moved that the court advise the jury that all testimony regarding the placement or maintenance of the endotracheal tube be stricken and disregarded. Defendant also moved that the jury be instructed of the earlier directed finding. The trial court granted the motion with respect to barring arguments that plaintiffs’ counsel would make in this regard. However, the trial court ruled it would not strike testimony already presented on the issue and would not instruct the jury on the directed finding.

We need not address this issue because the case is being reversed on other grounds. We note, however, it is axiomatic that once an allegation has been nullified by a directed verdict, evidence proffered solely in support of that allegation would be irrelevant and immaterial.

Defendant next argues that the trial court improperly gave judicial recognition to a disputed fact. The instruction of concern here stated that defendant:

“4. Failed to have anesthesia available to perform an emergency cesarean section within thirty minutes of Dr. Taylor’s request for anesthesia at approximately 8:40 to 8:45 p.m.” (Emphasis added.)

Defendant argues that in giving this instruction the court lent judicial credence to a significant disputed fact, i.e., the timing of the anesthesia request. Defendant asserts that the court should have instructed the jury that plaintiffs claimed defendant was negligent by failing to have anesthesia available within 30 minutes of Dr. Taylor’s request without stating when the request occurred. This 30-minute period is one set by the hospital’s Maternity Service Plan for the provision of anesthesia for an emergency cesarean section.

According to a chart of events maintained by a nurse present at Kathleen’s delivery, Dr. Taylor instructed a nurse to assemble a medical team necessary to perform a cesarean section at 8:40 p.m. Thus, in order for the hospital to comply with its own Maternity Service Plan, emergency anesthesia would have had to be present by 9:10 p.m. However, anesthesia was not administered to Jacqueline Ellig until 9:23 p.m. Dr. Gerbie opined that the hospital’s deviation from its standard of care caused or contributed to cause the injury and death of Kathleen Ellig. Defendant attempted to create a question of fact with respect to the timing of the anesthesia request by showing that the records the hospital kept were merely an approximation of the times events occurred and by showing that the events, as they were testified to by Dr. Taylor, necessarily implied that the call for anesthesia occurred at a time later than that indicated on the hospital records. Dr. Taylor testified that the decision to perform a cesarean section could have been made as late as 8:50 p.m.

Viewing the instructions as a whole, we determine that defendant’s case was not prejudiced by the language cited above. First, the statement that Dr. Taylor’s request occurred at approximately 8:40 to 8:45 p.m. arises in the context of an instruction explaining the plaintiffs’ allegations. Therefore, it is unlikely that the jury construed the instruction as the judge’s view of the facts. Moreover, the judge subsequently informed the jury that the instructions are not intended to indicate the judge’s opinion as to the facts. Thus, while this instruction alone does not serve as a valid basis for reversal, it is phrased in such a way that a possibility for prejudice did exist. In one sense, the trial court gave credence to plaintiffs’ allegations regarding the timing of the call for anesthesia by failing to similarly present defendant’s position on the matter. The exact time the call for anesthesia was made is a question of fact. In order to avoid the possibility of jury confusion on remand, we suggest that the trial court avoid reference to one party’s allegation regarding the timing of the anesthesia requests where no similar presentation is made on the other party’s behalf.

Defendant next argues that the trial court incorrectly stated the applicable standard of care in the tendered jury instructions. Specifically, defendant asserts that the instructions had the effect of holding the hospital to the standard of care of a reasonably careful person (layperson). Defendant argues that a hospital should, instead, be held to the standard of care of same or similar institutions holding themselves out as providing health care services for individuals. We agree.

In our view, the instructions given to the jury on this issue were confusing and prejudiced defendant’s case. Over defendant’s objection, the trial court tendered the following instruction based upon IPI Civil 3d No. 105.03.01:

“In providing hospital services to Jacqueline Ellig and the infant, Kathleen Ellig, the defendant, Delnor Hospital, had a duty to exercise ordinary care. A failure to do so is professional negligence.
In deciding whether Delnor Hospital exercised ordinary care, you may consider expert testimony, professional standards, and hospital regulations presented in this case.” See IPI Civil 3d No. 105.03.01 (1990).

According to the Notes on Use for IPI Civil 3d No. 105.03.01, the instruction incorporates the duty of a hospital or other treating institution to care for its patients as defined in Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326. In Darling, our supreme court upheld a decision in which a hospital was held negligent because the jury could reasonably have concluded that hospital nurses failed to attend properly to the plaintiff’s broken leg. In identifying the hospital’s duty, the court determined that it was permissible to rely upon regulations, standards, and bylaws related to the hospital’s functions. The second paragraph of IPI Civil 3d No. 105.03.01 reflects these elements in defining a hospital’s duty.

In the present case, during the jury instructions conference, plaintiffs asserted that the case involved the same kind of administrative activity complained of in Darling. Plaintiffs argued that the failure of the hospital to get the anesthesiologist on board in a timely fashion was an administrative function. In light of this theory, the jury was instructed, pursuant to IPI Civil 3d No. 105.03.01, that it could look to expert testimony, professional standards, and hospital regulations in order to determine whether Delnor was guilty of professional negligence.

In order to define the term “ordinary care” as it is used in IPI Civil 3d No. 105.03.01, and in accordance with the Notes on Use section of IPI Civil 3d No. 105.03.01, IPI Civil 3d No. 10.02 was submitted to the jury. This instruction provides:

“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.” (IPI Civil 3d No. 10.02.)

Thus, the jury was essentially instructed that professional negligence results from a failure to exercise the care a reasonably careful person (layperson) would use under circumstances similar to those shown by the evidence.

We cannot see how this definition of ordinary care comports with the phrase as it is used in the context of defining the professional negligence of a hospital. The Notes on Use to IPI Civil 3d No. 105.03.01 suggest that IPI Civil 3d No. 10.02 be modified as appropriate when it accompanies IPI Civil 3d No. 105.03.01. Such a modification would seem to be one which defines “ordinary care” in terms of other “similarly situated institutions” rather than in terms of the “reasonable person,” particularly where a case, such as this one, involves questions of professional negligence, rather than ordinary principles of negligence. (See IPI Civil 3d No. 105.03.01, Comment.) The standard of care to which a health care provider is held is not the same standard of care to which a layperson is held, unless the negligence is so grossly apparent or obvious that an ordinary layperson could appraise it. Walski v. Tiesenga (1978), 72 Ill. 2d 249, 256.

The present case, which involves questions of the timing and administration of anesthesia, is not one which lies within the ken of an ordinary layperson. Therefore, it was inappropriate for the trial court to submit a reasonable person standard of care instruction. Instead, ordinary care should have been defined in terms of the care a reasonably careful, similarly situated institution would exercise under circumstances similar to those shown by the evidence.

A similar source of jury confusion could reasonably have resulted from the court’s injection of a jury instruction based upon IPI Civil 3d No. 105.01 (1990). The instruction provided as follows:

“In providing professional services to JACQUELINE and KATHLEEN ELLIG, hospital personnel must possess and apply the knowledge and use the skill and care ordinarily used by reasonably well-qualified hospital personnel practicing under the circumstances similar to those shown by the evidence. A failure to do so is professional negligence.
The only way in which you may decide whether the hospital personnel of the defendant, Delnor Hospital, possessed and applied the knowledge and used the skill and care which the law required of it, is from expert testimony and/or evidence of professional standards presented in the trial. You must not attempt to determine this question from any personal knowledge you have.” See IPI Civil 3d No. 105.01.

This instruction purports to instruct the jury on theories of negligence based on vicarious liability. In contrast, IPI Civil 3d No. 105.03.01 purports to instruct the jury on theories of institutional negligence. See IPI Civil 3d No. 105.03.01, Notes on Use.

We determine that it is error to instruct the jury on two distinct theories of professional negligence absent some explanation as to how these theories apply to the case. The instructions, as they were tendered in the present case, inform the jury that Delnor Hospital was under two distinctly different duties: (1) to exercise “the care a reasonably careful person [reasonably careful layperson] would use under circumstances similar to those shown by the evidence” (emphasis added) (as per IPI Civil 3d No. 105.03.01 and IPI Civil 3d No. 10.02), and (2) that the hospital personnel “must possess and apply the knowledge and use the skill and care ordinarily used by reasonably well qualified hospital personnel practicing under the circumstances similar to those shown by the evidence” as established by expert testimony and/or evidence of professional standards presented in the trial (as per IPI Civil 3d No. 105.01). Thus, the jury is told that Delnor Hospital had a duty to exercise “ordinary care” at the same time it was told that the hospital had a duty to exercise “the care ordinarily used by other health care professionals.”

In our view, the instructions, as they were given in the present case, could create a situation where the professional negligence of the defendant/hospital could be determined by looking to the actions of a layperson. This is an incorrect recitation of the law and, therefore, we hold that it was error to give IPI Civil 3d No. 105.01 when IPI Civil 3d No. 10.02 was also tendered concerning the same alleged breach of duty. Leary v. Eng (1991), 214 Ill. App. 3d 279, 284.

As cited above, an error in tendered jury instructions is reversible where prejudice results. (Korpalski, 114 Ill. App. 3d at 568.) The error in the present case results from the incorrect recitation of the law which would allow the jury to judge the actions of a professional medical organization by using the standards applicable to a layperson. For example, the jury could have decided that a reasonable layperson would have had anesthesia available at a moment’s notice for an emergency cesarean section. However, professional duties and obligations, as identified by experts, regulations, and bylaws, may dictate otherwise. Prejudice also resulted from the failure to provide the jury -with instructions that clearly identified the theories of plaintiffs’ requested relief. The first asserts defendant’s liability based upon its administrative failure to provide timely anesthesia. The second theory asserts that defendant was vicariously liable through the actions of its medical staff. When different theories of relief are requested, the jury should be more clearly informed about which standards apply to which theory of recovery so that they are not misled.

In sum, the juxtaposition of IPI Civil 3d Nos. 105.03.01 and 10.02 with IPI Civil 3d No. 105.01 creates a situation in which the potential for juror confusion is substantial. On the one hand, the jury is led to believe that it may apply its own knowledge and experience in assessing whether the hospital met the standards of ordinary care. On the other hand, the jury is led to believe that it may only consider expert testimony or evidence of professional standards in assessing whether the hospital met its standard of care. These instructions may have led to a situation where the jurors ignored the expert testimony with respect to the standard of care issue. Therefore, we determine that this issue was a source of prejudice to the defendant warranting reversal for a retrial.

Defendant next argues that the trial court tendered instructions to the jury which failed to distinguish between survival actions and wrongful death actions with respect to the calculation of damages. In light of our holding on the Survival Act count, we determine this issue to be moot and will not address it here. Likewise, because we reverse this case on other grounds, we will not address defendant’s final assertion that counsel for plaintiffs made statements during trial and closing argument which allegedly prejudiced defendant. In addition, defendant’s request for remittitur of the jury award is no longer relevant in light of our holding.

Finally, plaintiffs’ cross-appeal of the trial court’s order below granting a remittitur for medical expenses has been mooted with respect to the instant appeal. Therefore, we will not address it at this time.

The judgment of the circuit court of Kane County is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

INGLIS, P.J., and DUNN, J., concur.