author: JUSTICE WOODWARD

text:
    G. KENT YOWELL, Plaintiff-Appellant, v. RONALD H. RINGER, Defendant-Appellee.
    Second District
    No. 2 — 90—1384
    Opinion filed July 30, 1991.
    Rehearing denied September 13, 1991.

      G. Kent Yowell, of Northbrook, appellant pro se.

    Hall, Holmberg, Roach, Johnston & Fisher, of Waukegan (Jeffrey C. Thut, of counsel), for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, G. Kent Yowell, appeals from a jury verdict in favor of the defendant, Ronald H. Ringer, on plaintiff’s claim for legal fees alleged to be owed him by the defendant. On appeal, plaintiff raises the following issues: whether the jury’s verdict was against the manifest weight of the evidence; whether defendant’s closing argument denied plaintiff a fair trial; and whether the jury was properly instructed. We affirm.

On August 15, 1989, plaintiff, an attorney licensed to practice in the State of Illinois, filed a complaint at law against defendant seeking payment for legal services rendered to the defendant by the plaintiff. The complaint alleged that the parties had entered into an agreement whereby plaintiff agreed to perform legal services for the defendant, and defendant agreed to pay the sum of $150 per hour plus costs for plaintiff’s legal services. The complaint further alleged that the plaintiff performed legal services for the defendant, that invoices were sent to defendant and that defendant did pay certain amounts to the plaintiff. Finally, the complaint alleged that there was an outstanding balance of $15,160.21, which defendant had not paid and which was owed to the plaintiff.

Defendant filed an answer admitting that plaintiff and he had entered into an agreement for legal services; that certain work had been performed and that he had paid certain amounts to the plaintiff. He denied the terms of the agreement as alleged by the plaintiff and denied that any further money was owed to the plaintiff. Defendant also filed a counterclaim alleging malpractice on the part of the plaintiff. The defendant’s counterclaim was voluntarily nonsuited by the defendant, who then filed an affirmative defense alleging malpractice on the part of the plaintiff. On plaintiff’s motion, defendant’s affirmative defense was stricken. Plaintiff amended his complaint to allege that the agreement as to his hourly rate was $125, not $150, per hour. The cause then proceeded to trial.

Plaintiff testified as to his training and experience as an attorney. An attorney for 38 years, he had served as an assistant United State’s Attorney for the Northern District of Illinois in the civil division for 2V2 years. He then went into private practice doing general civil practice. The work included contracts, estate planning, wills, real estate and appellate work. He had argued cases before the Illinois Supreme Court, as well as the United States Supreme Court.

Plaintiff then testified that on June 14, 1988, he met with the defendant to discuss the defendant’s retaining him to handle several legal matters. Two of the cases were already in litigation, i.e., the Small case and the Peterson case, which was a mechanic’s lien action. In addition, plaintiff was also requested to handle a dispute defendant had with Body Therapeutic, Inc., a tenant of defendant’s. In all, plaintiff was requested to handle approximately six legal matters for the defendant. Plaintiff received a letter from defendant dated June 18, 1988, in which defendant confirmed that he was retaining plaintiff to be his legal counsel with services provided at the rate of $125 per hour. A check for $1,500 was enclosed.

Plaintiff further testified that he charges his time by the hour and keeps a record of his time and how it was spent in a notebook. The information is then put in a computer, and the pages from the notebook are put in a separate binder. A bill generated by the computer would be sent to a client, such as the defendant, once a month. Cases such as the Small and Peterson cases had separate files. There was also a general file for the defendant which contained matters that were difficult to assign to a specific file.

Plaintiff further testified that, after the initial meeting with the defendant, he met with him at least once per month to discuss defendant’s cases. Defendant never complained to plaintiff that his bills were excessive or the work unnecessary, although he did ask plaintiff to refer him to an attorney who could handle some less important matters at a lower rate. After the Small case was completed, defendant continued to make payments on plaintiff’s bill. When plaintiff’s bill reached $13,000, defendant explained to plaintiff that he was having cash flow problems but did not indicate any problems with plaintiff’s work. After the bill exceeded $13,000, defendant retained another attorney.

On cross-examination, plaintiff testified that less than 14% of his practice involved courtroom litigation and that he had participated in less than 10 lawsuits brought in Lake County. He admitted not being a member of various trial bars. At the initial meeting with the defendant, they discussed plaintiff’s background and his hourly rate. He did not recall telling defendant that his background in mechanic’s lien cases was limited to less than two lawsuits. He did not send out any interrogatories in the Peterson case, nor did he depose any of the parties in that case. He did have conferences with certain people involved in the case. He did prepare an answer and a counterclaim which were part of the court file and a bill of particulars (or response thereto) which for some reason had not been filed. Plaintiff billed defendant 46.4 hours on the Peterson case.

Plaintiff further testified that in the Small case he was attempting on behalf of the defendant to collect $7,000 in rent due. Plaintiff estimated defendant’s damages in that suit to be between $12,000 and $15,000 plus attorney fees of $10,000. The case had been filed by • defendant’s former attorney in the law magistrate division, where the jurisdiction is limited to $15,000. Plaintiff never moved to transfer the case to the law division, where the higher amount of damages he was seeking could be awarded. Plaintiff admitted that in connection with the Small case he billed defendant for the taking of an evidence deposition even though the trial court had barred it from being introduced into evidence because the notice to the opposing side was too short.

Plaintiff further testified that he did not recall telling defendant that he would be billed 15 minutes for telephone calls. He did recall telling him that his minimum hourly rate was $150.

Plaintiff’s time records and bills to the defendant were admitted into evidence. Plaintiff then rested. Defendant’s motion for a directed verdict was denied.

David Semmelman, an attorney, testified on behalf of the defendant. An attorney since 1983, he was an assistant State’s Attorney for Lake County for 2V2 years; thereafter, he practiced law in Lake County. He was the attorney for Richard Small in the lawsuit defendant brought against Mr. Small. He himself has tried approximately 20 cases in the law magistrate division of the circuit court.

According to Semmelman, the Small trial took 21k hours. He moved to bar an evidence deposition on the basis of short notice in the Small case which the court granted. On cross-examination, Sennelman testified that he had oral notice of the proposed evidence deposition a month prior to the scheduled date.

Defendant testified that in June 1988 he met with the plaintiff. They discussed plaintiff’s hourly rate, and defendant told him about the Peterson case. Plaintiff did not inform him that his experience in handling mechanic’s lien cases was limited or that 90% of his practice was not related to litigation. Had he known this information, he would not have hired plaintiff.

Defendant testified that plaintiff did not discuss his testimony with him prior to the day of trial. He did supply plaintiff with the names of potential witnesses. He became dissatisfied with plaintiff at the time of the Small trial because plaintiff appeared unfamiliar with civil practice in Lake County and seemed uncomfortable and hesitant in court.

On cross-examination, defendant testified that plaintiff never told him he was an expert in mechanic’s lien cases, nor did defendant ever inquire as to his level of expertise in such cases. He did retain plaintiff pursuant to the June 18, 1988, letter he sent plaintiff. Defendant received bills from plaintiff, but prior to the conclusion of the Small case, he never complained to plaintiff about the bills he was receiving. Following the Small case, in February 1989, he paid plaintiff $1,000 so plaintiff could do a “standby report.”

Bogan Martinovich, an attorney, testified for defendant. An attorney since 1974, he has done litigation exclusively for the last 12 years. He is a member of the American, Illinois and Lake County Bar Associations, as well as the American and Illinois Trial Lawyers Associations.

Martinovich testified that he was the third attorney defendant hired to represent him in the Peterson case and was familiar with the work in that case. After meeting with the defendant, Martinovich reviewed the court file, as well as plaintiff’s file on the Peterson case. Plaintiff’s file contained correspondence between plaintiff, defendant and the attorney for Peterson. It also contained copies of pleadings prepared by defendant’s first attorney, Fred Rawler, and an answer and counterclaim prepared by plaintiff. The file also contained documents which defendant had furnished to plaintiff and a document indicating defendant had been submitted for deposition. There was nothing else in the file regarding discovery. Upon receipt of the file, Martinovich conducted necessary discovery.

Martinovich opined that, based upon his training, education, experience, review of the plaintiff’s file and the court file and given the nature of the Peterson case and the fact that another attorney had already done certain work on it, the reasonable number of hours an attorney would have spent on the case was as follows: one to two hours conferring with the defendant; given the deposition he reviewed in this cause, the preparation for defendant’s deposition, meeting with the defendants and presenting him for his deposition should have taken three to four hours; and drafting of the answer and counterclaim should have taken no more than one hour. There was no need for the plaintiff to prepare a response to the bill of particulars that had been filed by Peterson since one had already been prepared by Rawler.

Martinovich further testified that he reviewed both plaintiff’s file and the court file on the Small case. Because of the size of that case, it did not warrant any more discovery than taking the deposition of the opposing party and a review of documents in order to avoid incurring substantial fees not warranted by the amount in controversy, which in the Small case was some $12,000. In Martinovich’s opinion, preparation of pleadings in the case would have reasonably taken one to two hours. Plaintiff presented defendant for deposition which should reasonably be taken in three hours. Because plaintiff did not conduct any discovery, there was nothing to review and nothing more to do other than to meet with the defendant which should not reasonably have exceeded two hours. To those hours, Martinovich would add the time it took to try the case (21/2 hours). He concluded that a reasonable time to prepare for the Small case was between 5 to 10 hours.

On cross-examination, Martinovich testified that he did not discuss any of the files with the plaintiff. He was vaguely aware that plaintiff was working on some leases for the defendant. He was not present at any of the conferences between plaintiff and the defendant. According to Martinovich, attorneys handle different cases different ways, although you start out in a standardized process. He agreed that the preparation for and presentation at trial requires that an attorney make judgment calls on behalf of his client.

On rebuttal, plaintiff testified as to his membership in the American, Illinois and Chicago Bar Associations, his service as a commissioner to the supreme court of Illinois and his appointment to the character and fitness committee. He also served as the village attorney for Glencoe for eight years. He conservatively estimated that he had tried hundreds of cases in the Second District of Cook County, which is the equivalent of the law magistrate division in Lake County.

Plaintiff further testified that defendant estimated that the Peterson case involved $80,000. On other cases, it was the principle that mattered to the defendant, not the money. Over the course of his representation of defendant, defendant never complained about the bill, although plaintiff did send him a replacement bill on one occasion.

On cross-examination, plaintiff testified that the activities he testified to on rebuttal all dealt with lawyer ethics. He also admitted that out of the “hundreds” of cases he tried, many were municipal ordinance violations or traffic tickets. In considering whether to adjust a fee for a client, plaintiff would consider the client’s economic situation.

During closing argument, defendant’s attorney made the following statement:

“Mr. Ringer [defendant] did not agree to pay [plaintiff] for hours he expended which amounted to be nothing more than a colossal waste of time, and [defendant] should not be required to pay for hours which were wasted by [plaintiff].”

Plaintiff did not object to this statement.

The jury returned a verdict in favor of the defendant, and this appeal followed.

Plaintiff contends, first, that the jury’s verdict in favor of the defendant was against the manifest weight of the evidence.

Plaintiff argues, first, that in denying his request for a judgment notwithstanding the verdict, the trial court based its ruling on the fact that plaintiff had not moved for a directed verdict at the close of the case. Plaintiff correctly notes that he need not make a motion for a directed verdict in order to be granted the relief he sought. (See Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1202(b).) The following colloquy occurred during the argument of plaintiff’s post-trial motion:

“[Plaintiff]: Section 2 — 1202(b) provides that relief after trial may include the entry of judgment if, under the evidence in the case, it would have been the duty of the Court to direct a verdict without submitting the case to a jury even though no Motion for Directed Verdict was made; or if made, was denied or a ruling thereon reserved.
THE COURT: Of course, the underlying test then is whether, as a matter of law, plaintiff was entitled to the judgment it [sic] sought.
[Plaintiff]: That’s right.
THE COURT: And that no reasonable jury could have determined otherwise.
[Plaintiff]: That’s correct.
THE COURT: That clearly is not the situation in this case. The motion wasn’t made anyway.”

Despite the trial court’s final comment, the exchange establishes that its decision to deny the request for judgment notwithstanding the verdict was based upon plaintiff’s failure to establish that he was entitled to a judgment as a matter of law.

Plaintiff then argues that the evidence presented established a prima facie case for recovery under the theory of an account stated. He correctly points out that defendant agreed to the billing rate of $125 per hour, did not dispute the reasonableness of that rate and did not dispute the number of hours plaintiff expended. Thus, plaintiff theorizes that he need not prove the necessity and reasonableness of the number of hours he expended on the part of the defendant. We disagree.

In Laff v. Chapman Performance Products, Inc. (1978), 63 Ill. App. 3d 297, the court stated as follows:

“It is well established that when an attorney files an action to recover fees under the theory of account stated, the attorney has the burden of furnishing detailed facts and computations upon which the claimed fee was predicated [citation], and the client is always permitted to prove that the charges are excessive, not warranted by custom and usage, and otherwise unreasonable. [Citations.] Among the factors to be considered in determining the reasonable value of an attorney’s services are the following:
'*** the skill and standing of the attorney employed; the nature of the cause and the novelty and difficulty of the questions at issue; the amount and importance of the subject matter; the degree of responsibility involved in the management of the cause; the time and labor required; the usual and customary charge in the community; and the benefits resulting to the client. [Citations.]’ ” Laff 63 Ill. App. 3d at 306-07, quoting Neville v. Davinroy (1976), 41 Ill. App. 3d 706, 711.

Plaintiff notes that the pleadings in this cause did not raise the issue as to the necessity and reasonableness of the number of hours he expended on behalf of the defendant. However, in an action by an attorney for fees, mere allegations of an account stated are insufficient to allege liability of the client, and the burden is always on the attorney to show any agreement he has made with a client is fair and reasonable. (Laff 63 Ill. App. 3d at 306.) The agreement between plaintiff and defendant did not specify the number of hours contemplated to be expended on defendant’s legal matters. Consequently, it was plaintiff’s burden to establish the reasonableness of the hours he expended on defendant’s behalf.

Actual time spent is only one factor to be considered in determining the reasonableness of the fee charged. (Laff, 63 Ill. App. 3d at 307.) While there is no dispute that plaintiff actually expended the hours he billed defendant for, plaintiff presented little or no evidence to establish the reasonableness and necessity of those hours. Plaintiff’s testimony consisted of his education and experience as an attorney and a review of his time records. He introduced no expert testimony to establish the reasonableness and necessity of the hours expended, nor did he himself testify to that effect. On the other hand, defendant presented expert testimony that the work performed by the plaintiff would not reasonably have taken the time reflected in the hours billed by the plaintiff, or was unnecessary. Resolution of this question was properly for the jury. Laff, 63 Ill. App. 3d at 308.

Plaintiff’s reliance on Pefferle v. Prairie Mills, Inc. (1966), 72 Ill. App. 2d 440, is misplaced. In that case, the reviewing court refused to consider the client’s argument as to the reasonableness of the attorney’s fee because the issue was raised for the first time on appeal. In contrast, in the case at bar, the issue of reasonableness was raised at trial and evidence presented thereon to the jury. Given the lack of evidence from the plaintiff that the hours he expended on behalf of the defendant were reasonable and necessary, we cannot say that the jury’s verdict was against the manifest weight of the evidence.

Next, plaintiff argues that defendant’s expert witness, attorney Martinovich, was never disclosed pursuant to Supreme Court Rule 220(b) (134 Ill. 2d R. 220(b)). However, plaintiff failed to object to Martinovich’s testimony on the basis of a violation of Rule 220(b), and, therefore, the argument is waived. (Puskar v. Hughes (1989), 179 Ill. App. 3d 522, 531.) Plaintiff further argues that the jury erred in accepting Martinovich’s testimony because Martinovich did not review all of the work plaintiff performed for the defendant nor did he testify that plaintiff’s work was not reasonable or necessary.

Through his testimony and his records, plaintiff presented evidence that he spent 47.15 hours on the Peterson case and 81.40 on the Small case and 22.95 hours on miscellaneous matters for the defendant. Martinovich’s testimony demonstrated that he was familiar with both the Peterson and the Small cases. He testified as to the number of hours that would be reasonable and necessary to accomplish the work plaintiff performed on the Peterson case, 7 hours, and on the Small case, 10 hours. Although plaintiff maintains that Martinovich did not review all of the work plaintiff performed, in view of substantial differences between the hours charged as the hours necessary and reasonable, the jury could properly infer that such work was unnecessary.

The credibility of the witnesses and the weight to be given their testimony are matters for the jury to determine, and unless its determination is manifestly against the weight of the evidence, it will not be disturbed on appeal. (Moran v. Lola (1989), 179 Ill. App. 3d 771, 782.) A verdict will not be disturbed merely because the jury could have determined the credibility of the witnesses differently or drawn different inferences of fact, and when credible evidence supports the verdict, the court may not say that the conclusions other than the ones drawn by the jury are more reasonable. (Gabrenas v. R.D. Werner Co. (1983), 116 Ill. App. 3d 276, 285.) Contrary to established case law, plaintiff chose not to offer any evidence as to the reasonableness and necessity of the hours he billed defendant. Thus, on that issue there was only the testimony of the defendant’s expert that the hours billed by plaintiff were excessive. Given that the jury is the judge of the credibility of the witnesses, and in light of Martinovich’s uncontradicted testimony in this regard, we cannot say that the jury erred in accepting Martinovich’s testimony.

We conclude, therefore, that the jury’s verdict was not against the manifest weight of the evidence.

Next, plaintiff contends that defendant’s statement during closing argument to the effect that plaintiff’s work was a “colossal waste of time” and that it represented “hours wasted” deprived him of a fair trial. Plaintiff points out that defendant’s attempt to elicit such testimony from his expert was cut short when the trial court sustained an objection to the question.

Plaintiff concedes that he failed to object to the comment of which he now complains. Failure to object is considered a waiver of objections. (Webb v. Angell (1987), 155 Ill. App. 3d 848, 852.) Nonetheless, when the argument and misconduct of counsel is so prejudicial as to deny a litigant a fair trial, the instance of misconduct may be considered despite the failure to object and despite corrective steps taken by the trial court. Webb, 155 Ill. App. 3d at 852.

Based upon our review of the record, we are convinced that the complained-of comment was not so prejudicial as to deprive the plaintiff of a fair trial. We observe, first, that this is the only comment complained of and not a case where the cumulative effect of several such comments prejudiced the plaintiff in the eyes of the jury. Although plaintiff maintains that the jury probably did not remember the fact that the trial court sustained his objection to defendant’s questions to Martinovich as to the usefulness of plaintiff’s work, that is mere speculation. Moreover, plaintiff’s objection was made before Martinovich could respond, so there was no answer to that question to mislead the jury. As plaintiff himself points out, the jury was instructed that the closing arguments were not evidence. Finally, counsel is allowed broad latitude in drawing reasonable inferences and conclusions from evidence presented at trial during closing arguments. (Sloan v. O’Dell (1987), 159 Ill. App. 3d 268, 273.) Given the difference between the amount of hours Martinovich testified would be necessary to complete work on the Peterson and Small cases and the time plaintiff billed defendant, we cannot say that defendant’s remark in closing argument was not a proper inference from the record.

Finally, plaintiff contends that the jury was not properly instructed.

During its deliberations, the jury sent a note to the trial court asking “whether it was an all or nothing proposition or could it be split up?” After consulting with the attorneys for the parties and with their mutual agreement, the trial court ad-vised the jury that it was to follow the instructions as given. Plaintiff argues that this exchange indicated that the jury was confused by the jury instructions. An instruction cannot be tendered if the instruction would confuse the jury. (In re Estate of Pirie (1986), 141 Ill. App. 3d 750, 769.) In Pirie, the jury was instructed as to two different standards in the same instruction, which the appellate court found may well have confused the jury. (Pirie, 141 Ill. App. 3d at 769.) However, in the cause before us, plaintiff has not explained how the instructions were confusing to the jury. He merely cites the fact that the jury posed a question to the trial court which the trial court, in effect, did not answer. Nevertheless, the mere posing of a question is not enough to show confusion on the part of the jury. (Kingston v. Turner (1987), 115 Ill. 2d 445, 463.) We also note that the trial court's response was made after consulting with and securing the mutual approval of the attorneys for both parties. Therefore, we can find no basis for concluding that the jury was confused by the jury instructions in this cause.

Next, plaintiff argues that it was error to give defendant’s instruction 3A, which read as follows:

“In determining whether or not the attorney hours expended by plaintiff, G. Kent Yowell, are reasonable, you should consider the amount of time and labor required, the novelty and difficulty of the legal issues, the skill required to litigate the cases, which were litigated, the amount involved in the case, the plaintiff’s experience, reputation and ability.”

Plaintiff maintains that this instruction, which was based on In re Estate of Healy (1985), 137 Ill. App. 3d 406, was improperly given since in the Healy case, there was no agreement as to the hourly rate. However, the fact that the parties had agreed to the hourly rate does not lift from plaintiff his burden of proving the reasonableness of his fee. Laff 63 Ill. App. 3d at 306.

Plaintiff also argues that the trial court erred in refusing plaintiff’s instruction 11, which read as follows:

“When an attorney renders services under such circumstances as reasonably imply that they were performed with the assent and on the request of the person benefitted, he is entitled to compensation.”

Plaintiff maintains that his instruction 11 supported his theory of an account stated, which was established, and shifted the burden of proof to the defendant that the services were not performed or that they were not reasonable and necessary.

Jury instructions are to be considered as a whole and must be read together to determine whether they fairly and accurately state the law. (Pirie, 141 Ill. App. 3d at 766.) Instructions that incorrectly state the law and mislead the jury should not be given. (141 Ill. App. 3d at 766-67.) Contrary to plaintiff’s argument, the burden is always on the attorney to prove that his services on behalf of the client were reasonable and necessary. (Laff, 63 Ill. App. 3d at 306.) Moreover, plaintiff’s proposed instruction would lead the jury to believe, incorrectly, that all plaintiff need do was to prove the terms of his agreement with the defendant in order to recover the fees he charged. Since we have repeatedly stated in this opinion that a necessary element of plaintiff’s action was proof that his fees were reasonable and necessary, plaintiff’s instruction 11 does not accurately state the law and was properly refused.

We conclude, therefore, that the jury was properly instructed.

The judgment of the circuit court is affirmed.

Affirmed.

DUNN and BOWMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SLATER

license: Public Domain

text:
    ELVIRA MORENO, Special Adm’r of the Estate of German Parades, a/k/a Miguel Parades, Plaintiff-Appellant, v. BALMORAL RACING CLUB, INC., Defendant-Appellee.
    Third District
    No. 3-90-0878
    Opinion filed August 9, 1991.

      Cooney & Conway, of Chicago (Timothy R. Ocasek, of counsel), for appellant.
    Thomas J. Branit, of Moore & Maisel, of Chicago (Travis Maisel, of counsel), for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

This case comes on appeal from the trial court’s order dismissing plaintiff’s third amended complaint with prejudice. Plaintiff appeals pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

Plaintiff’s third amended complaint alleges that on October 28, 1987, defendant owned, operated, maintained, managed and controlled apartments located at its racetrack, one of which was the lawful residence of plaintiff’s decedent, German Parades. The temperature on October 28, 1987, was at or below freezing, and decedent’s apartment was without heat. Defendant knew or should have known that the heating system was not working and that this would result in the use of alternative heat sources. To provide heat in his apartment, decedent placed and operated a charcoal grill in his room which caused him to die of carbon monoxide poisoning. Failure of defendant to provide heat was a violation of a local ordinance.

Defendant moved to dismiss the third amended complaint pursuant to sections 2 — 615 and 2 — 619 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 615, 2 — 619.) Plaintiff responded by asking for leave to amend by replacing allegations of violation of a local Crete, Illinois, ordinance with allegations of violation of a Will County ordinance. The trial court denied this request on the basis that neither ordinance was applicable to the facts as alleged and granted defendant’s respective motions to dismiss.

The issue to be decided on appeal is whether the trial court erred as a matter of law in granting defendant’s motions to dismiss under sections 2 — 615 and 2 — 619 of the Illinois Code of Civil Procedure. We will first consider the trial court’s ruling pursuant to section 2 — 615.

Generally, a landlord is not liable for injuries sustained by a tenant as a result of a defective condition within the four corners of the demised premises. (Lamkin v. Towner (1990), 138 Ill. 2d 510, 563 N.E.2d 449.) There are, however, five notable exceptions to this rule: (1) a latent defect existed at the time of the leasing which lessor should have known about; (2) a fraudulent concealment by a landlord of a dangerous condition; (3) the defect causing the harm amounts to a nuisance; (4) the landlord makes a promise to repair a condition at the time of leasing; and (5) the landlord violates a statutory requirement of which tenant is in the class designed to be protected and the resulting harm is reasonably foreseeable. (Gilbreath v. Greenwalt (1980), 88 Ill. App. 3d 308, 410 N.E.2d 529.) Plaintiff in this case argues on appeal that defendant violated either a Crete city ordinance or a Will County ordinance by failing to maintain heating facilities in a safe and good working condition. Plaintiff also mentions that the third amended complaint states causes of action under the nuisance and latent defect exceptions as well. These points, however, are only mentioned, not argued, and therefore we will not address them on appeal.

Defendant’s section 2 — 619 motion was based primarily upon its assertion that the racing grounds were not located within the Crete city limits and, therefore, the Crete city ordinance had no application. In granting defendant’s motion on this point the trial court compared the Will County ordinance and the Crete city ordinance and found them to be substantially similar. That being the case, the trial court then considered whether plaintiff could have stated a proper cause of action had the Will County ordinance been properly alleged. Determining that no cause of action could be stated under either ordinance, the trial court granted both of defendant’s respective motions to dismiss and denied plaintiff’s motion to amend. We affirm.

To bring a cause of action against a landlord for tort liability based upon the alleged violation of an ordinance, the plaintiff must be within the class of persons which the ordinance is intended to protect and the resulting harm must be the kind which the ordinance was intended to prevent. (Gilbreath, 88 Ill. App. 3d 308, 410 N.E.2d 539.) There is no disagreement that plaintiff’s decedent was within the class of persons designed to be protected by the respective ordinances. The primary question is whether the use of a charcoal burning grill as an alternative heat source, and the resulting death, was the kind of harm designed to be prevented by the ordinance.

Defendant concedes that there was no heat in the apartment and, therefore, it breached its statutorily prescribed duty to provide heat in the decedent’s apartment. “The violation of the statute is prima facie evidence of negligence ***. [Citations.]” But “[t]his in itself creates no liability. The injury must have a direct and proximate connection with the violation of the statute before liability will be held to exist.” (Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 78-79.) Courts in Illinois have considered this point under the proximate cause rationale of whether a prudent person would reasonably foresee that an injury of this type would result from violation of the statutory duty. (Ney, 2 Ill. 2d 74, 117 N.E.2d 74.) Moreover, an intervening cause can break the causal connection between the original wrong and the injury unless the intervening cause is in itself foreseeable. Ney, 2 Ill. 2d 74, 117 N.E.2d 74; Johnston v. City of East Moline (1950), 405 Ill. 460, 91 N.E.2d 401.

Plaintiff argues that determinations of foreseeability or proximate cause are generally questions of fact to be decided by a jury, and we agree. Where, however, the injury is so remote that reasonable men would not differ as to a finding of no proximate cause, courts can make such determinations as a matter of law. See Merlo v. Public Service Co. (1942), 381 Ill. 300, 45 N.E.2d 665; Palsgraf v. Long Island R.R. Co. (1928), 248 N.Y. 339, 162 N.E. 99; W. Prosser, Torts §43 (4th ed. 1971).

Plaintiff cites the cases of Mangan v. F.C. Pilgrim & Co. (1975), 32 Ill. App. 3d 563, 336 N.E.2d 374, and Enis v. Ba-Call Building Corp. (7th Cir. 1980), 639 F.2d 359, as authority for the proposition that reasonable men could differ as to whether the decedent's injury and death were foreseeable consequences of defendant’s statutory violation. In Mangan, plaintiff filed a complaint based on two theories of negligence, one being the per se violation of a statute requiring defendant landlord to keep plaintiff tenant’s apartment free of rodent infestation. Plaintiff, while opening her oven door, was startled by a mouse that jumped out of the oven, causing her to fall and become injured. The court, without substantial analysis, determined that plaintiff’s injury was of a type that the relevant ordinance was, in general, designed to prevent and it was therefore a jury question whether the ordinance violation proximately caused plaintiff’s injury. (Mangan, 32 Ill. App. 3d 563, 336 N.E.2d 374.) We note that Mangan involved no intervening action or force on the part of plaintiff that would break the causal connection between the breach of the statutorily prescribed duty and the resulting harm to plaintiff. The analysis in Mangan was based squarely on whether the statute in question was, in general, designed to protect against the type of event causing plaintiff’s injuries.

In Enis, plaintiffs were injured by boiling water spilled from a turkey kettle which was on a kitchen stove for the purpose of providing heat to an apartment owned by defendant. Defendant was required by local ordinance to provide heat at minimum temperatures which it had failed to do. The United States Court of Appeals for the Seventh Circuit, citing Mangan as primary authority, held that injuries arising from the use of alternative heating methods were foreseeable consequences of defendant’s failure to provide heat. Furthermore, it was not so clear as to what events had immediately transpired prior to the water spilling on plaintiffs so as to take this cause from the trier of fact. In essence, the court stated that the intervening cause of the injury was in itself foreseeable. (Enis, 639 F.2d 359.) In his dissent, Judge Pell opined that there should be no recovery in this case. He reasoned that the construction of the particular statute for determining its intent was a matter of law and, therefore, the issue of proximate cause was necessarily intertwined to some degree. Although he conceded that the use of alternative heat sources was foreseeable, he suggested that the use of a kettle to boil water was a normal use for a kettle and to invoke liability because someone was injured as a result of said normal use was not foreseeable and, therefore, not intended to be protected by the statute in question. Citing Cook v. Seidenverg (1950), 36 Wash. 2d 256, 217 P.2d 799, Judge Pell essentially determined that there must have been some intervening force causing the boiling water to spill which caused the injury. Enis, 639 F. 2d at 365 (Pell, J., dissenting).

Mangan is distinguishable from this case. In Mangan there was no intervening force to be considered. Enis, although not entirely distinguishable, is not controlling. We agree with plaintiff herein that the use of an alternative heating source was a foreseeable event resulting from defendant’s failure to provide heat. In Enis, however, the appliance used to provide alternative heat (i.e., the turkey kettle) was used in its common and normal method albeit for a different purpose. That is not true in this case. It is general common knowledge that a charcoal grill is not intended to be nor is it commonly used indoors. As a matter of law, no reasonable men could differ on this point. Actionable negligence is cause related, not merely injury related. The decedent’s act of operating a charcoal grill indoors without ventilation is an intervening force, which is in itself not reasonably foreseeable, therefore breaking the causal link between defendant’s failure to provide heat and decedent’s resulting death from carbon monoxide asphyxiation. The statute in question was not intended to protect tenants from their own unforeseeable negligent conduct.

For all of the foregoing reasons, the decision of the trial court is affirmed.

Affirmed.

BARRY and HAASE, JJ., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID W. PHILLIPS, Defendant-Appellant.
    Third District
    No. 3 — 90—0655
    Opinion filed August 14, 1991.

      Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Erik I. Blanc, State’s Attorney, of Pekin (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

A jury convicted the defendant, David W. Phillips, of aggravated kidnapping and aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, pars. 10 — 2, 12 — 14). After a hearing, he was sentenced to concurrent extended terms of 25 and 40 years, respectively. He appealed the sentences, and we reduced the extended-term sentence for aggravated kidnapping to a 15-year nonextended term of imprisonment and affirmed the 40-year term.

Phillips subsequently filed a post-conviction petition based on People v. Ferguson (1989), 132 Ill. 2d 86, 547 N.E.2d 429, which held that a factor implicit in an offense, such as the age of the victim, cannot be used as an aggravating factor in sentencing. The petition was allowed and a new sentencing hearing was held, following which the trial court imposed an extended-term sentence of 36 years for the aggravated criminal sexual assault. Phillips now appeals this sentence.

Phillips first contends that the extended-term sentence was not warranted because he did not act in an exceptionally brutal and heinous manner as the trial court found. We disagree.

A summary of the evidence introduced at trial and at the first sentencing hearing can be found in our opinion issued in the first appeal. (People v. Phillips (1987), 159 Ill. App. 3d 483, 511 N.E.2d 1193.) A brief review of that evidence follows.

Phillips, an acquaintance of the victim’s mother, went to the victim’s home around midnight on the evening in question. After speaking with the mother on the front porch for a short time, he asked to use the bathroom. Phillips entered the residence and removed the sleeping 21/2-year-old victim from the couch, exiting out the back door. He returned to the home, spoke with the mother for a few moments, and left. About 5 to 10 minutes later, the mother discovered her daughter was missing and called the police. Volunteers were gathered, and a massive search for the victim ensued. Phillips, who had driven away with the victim in his car, disrobed and anally raped the 2xk-year-old child. He then deposited her near a road at 3 a.m. and sped away. The victim was naked and crying.

An examination revealed redness around the vaginal and anal areas. The inner portion of the anal area was grossly enlarged and seminal material was obtained from a rectal swab. The day following the incident, the victim would not eat, play, or smile. She complained of pain and would not sit in her bath. The resentencing court was aware of the above-noted evidence.

A reviewing court considering the appropriateness of a sentence must give great weight to the judgment of the trial court and should not alter the sentence imposed unless the court abused its discretion. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) The trial court may consider the nature and circumstances of the offense, including the nature and extent of each element of the offense as committed by the defendant. People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138.

The resentencing court did not abuse its discretion in finding that Phillips acted in a brutal and heinous manner. Phillips abducted a very young child from her mother’s home in the middle of the night. Not only did he remove her clothes and sexually assault her, he left her naked by the side of a road at 3 a.m.

Additionally, we note that “any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person” constitutes sexual penetration for purposes of the instant offense. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 12(f).) Clearly, the evidence of the victim’s grossly enlarged anus and the seminal fluid that was found established that this was much more than slight contact. Indeed, this was contact of the most abhorrent kind with a very young child. In this case, the court’s finding of brutal and heinous conduct to justify the imposition of an extended-term sentence upon Phillips was warranted. Therefore, the trial court did not err in imposing a 36-year extended term in the instant case.

Phillips also contends that the resentencing court erred by considering the victim’s age as an aggravating factor when the victim’s age was an element of the offense. We find Phillips’ contention without merit.

All the trial court’s remarks were made in the context of deciding whether an extended-term sentence should be imposed. A careful reading of the record reveals that the court clearly stated that it was not considering the victim’s age in determining whether to impose an extended term. Therefore, the trial court did not err in this regard.

Furthermore, it is well settled that a defendant cannot complain on appeal of an alleged error which was invited or acquiesced in by him below. (People v. Gutierrez (1987), 156 Ill. App. 3d 555, 509 N.E.2d 787.) Again, a thorough reading of the record reveals that the trial court’s remarks concerning the victim’s age were in response to defense counsel’s argument at resentencing. Therefore, since defense counsel invited the court’s remarks, the defendant should not now be heard to complain.

Finally, we note that in resentencing Phillips the court noted that his conduct made him eligible for an extended-term sentence and found that the conduct supported the original 40-year sentence. The court then considered in mitigation Phillips’ progress in prison and his drug and alcohol therapy, and reduced the initial sentence by four years to a 36-year extended term. Considering all these circumstances, we cannot say that the trial court abused its discretion in re-sentencing Phillips.

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

Affirmed.

STOUDER, P.J., and McCUSKEY, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL STEWART, Defendant-Appellant.
    Third District
    No. 3-90-0597
    Opinion filed August 6, 1991.

      Kenneth D. Brown, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (Jay P. Hoffmann, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant, Paul Stewart, appeals his conviction for unlawful possession of a controlled substance (Ill. Rev. Stat. 1989, ch. 56V2, par. 1402). We reverse and remand.

At trial, Joliet police officer Jeff Stubler testified that on June 21, 1989, around 4:30 p.m., he was patrolling North Broadway Street with his partner, James Klancher. As they drove north, he saw two black males conversing on the sidewalk. When they were within 50 to 75 feet of the men, one male handed something to the other. Stubler could not see what was exchanged, or who handed what to whom. Afterwards, the defendant placed his right hand in his front pants pocket. Stubler testified that about 50 times previously he had seen similar transactions that led to arrests for unlawful delivery of a controlled substance.

As the officers approached in their squad car, the two men ran into the lobby of a nearby building. After the officers drove around the block to the back of the building, Klancher got out of the car and entered the building’s rear entrance. Stubler then drove back onto Broadway Street, where he saw the two men again standing in front of the building.

Stubler parked near the men and began getting out of the car. The defendant ran into the building, while the other man ran down the street. Stubler chased the other man but was unable to catch him.

Officer Klancher testified that when the defendant ran into the lobby, he tackled him, placed him under arrest, and handcuffed him. In the course of searching him, he found 17 bags containing a white powdery substance.

Officer Klancher’s other testimony generally corroborated Officer Stubler’s description of the events leading up to the arrest. In addition, he noted that the area of the arrest was known for having many drug transactions. He further stated that it was not uncommon for people in that area to flee when police officers approached.

The parties stipulated that if a forensic scientist were called to testify, he would state that the bags contained 6.0 grams of a substance containing cocaine.

The defendant presented no evidence. Following arguments, the court found him guilty of unlawful possession of a controlled substance.

The trial court later sentenced the defendant to a five-year term of imprisonment. It granted him 147 days of credit against his sentence for his pretrial incarceration from June 21, 1989, to September 17, 1989, and from June 18, 1990, to August 17,1990.

On appeal, the defendant argues that his counsel was ineffective because he failed to move to suppress the cocaine. He contends that if counsel had done so, the evidence would have been suppressed because the arrest was not supported by probable cause.

Defense counsel is ineffective where his performance falls below an objective standard of reasonableness and there is a reasonable probability that, but for his performance, the result would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) A reasonable probability is defined as a probability sufficient to undermine confidence in the outcome. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) The reasonableness of counsel’s actions must be determined in light of the totality of the circumstances. People v. Atkins (1987), 161 Ill. App. 3d 600, 515 N.E.2d 272.

Since the instant defendant was clearly under arrest when he was apprehended in the lobby, at that time the officer had to have probable cause. (People v. Johnson (1970), 45 Ill. 2d 283, 259 N.E.2d 57.) Probable cause exists where the facts within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution to believe that the person arrested has committed an offense. People v. Lippert (1982), 89 Ill. 2d 171, 432 N.E.2d 605.

Here, the question of probable cause was a close one. The officers conceded that they did not see what was transferred between the defendant and the other man. Consequently, they could not be certain that an innocent transaction had not occurred. Moreover, the defendant’s attempts to evade the officers, while probative, did not conclusively establish probable cause. See People v. Batista (1989), 156 A.D.2d 455, 548 N.Y.S.2d 749.

The failure to move to suppress does not appear to have been a matter of trial strategy. The defendant would not have had to testify on the motion, because his counsel could have presented a plausible argument based solely on the officers’ testimony. Further, it appears from the record that the defendant’s only viable defense lay in contesting the propriety of the arrest.

For all of the foregoing reasons, we find that counsel’s failure to file a suppression motion undermines confidence in the outcome. We therefore hold that the defendant did not receive effective assistance. Although the defendant seeks outright reversal of his conviction without remand, we think that the better approach is to reverse his conviction and remand for further proceedings. Presumably, a suppression motion will then be considered, and the parties will have the opportunity to present any further evidence that may be available.

Since the defendant’s other arguments may come up on remand, we will address them at this time. The defendant next contends that he should have received 150 days of sentencing credit instead of 147 days, because he was entitled to credit for any fraction of a day spent in pretrial custody. See People v. Williams (1986), 144 Ill. App. 3d 994, 495 N.E.2d 685.

We disagree. Although the periods from June 21, 1989, to September 17, 1989, and from June 18, 1990, to August 17, 1990, equal 150 days, the defendant was furloughed for two complete days during that time. Since the purpose of the mandatory credit provisions is to provide credit for only the time spent in custody, the defendant cannot receive credit for those days. (See People v. Leggans (1986), 140 Ill. App. 3d 268, 488 N.E.2d 614.) Additionally, the defendant is not entitled to credit for August 17, 1990, because on that day he was remanded from the county jail to the Department of Corrections. (See Leggans, 140 Ill. App. 3d at 270-71, 488 N.E.2d at 615.) Accordingly, we find no error in the court’s calculation of sentencing credit.

The defendant lastly argues that his sentencing order should be amended because it states that he was convicted of a Class 1 felony. We agree that since the offense was actually a Class 4 felony (Ill. Rev. Stat. 1989, ch. 56V2, par. 1402(b)), the order should be so amended by the trial court.

The judgment of the circuit court of Will County is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

STOUDER, P.J., and McCUSKEY, J., concur.


text:
    THE SISTERS OF THE THIRD ORDER OF ST. FRANCIS, Plaintiff-Appellee, v. DONALD O. SUMMERSON et al., Defendants-Appellants.
    Third District
    No. 3 — 90—0821
    Opinion filed August 9, 1991.

      Leslie Kite, of Libit, Lindauer, Henry & Thall, of Chicago (Michael W. Pinsof, of counsel), for appellants.
    Covey & Litter st, Ltd., of Peoria (Roland N. Litter st, of counsel), for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Plaintiff filed suit against defendants to recover upon an implied contract for medical services. This case comes on appeal from the judgment of the trial court granting plaintiffs motion for summary judgment and the entry of judgment in favor of plaintiff against defendants in the amount of $1,144.15 plus costs.

Defendant Linda Summerson was a patient at plaintiff hospital on June 9 through 12, 1988, and June 29 through July 4, 1988, for the purpose of surgery. Defendant’s hospital records were subsequently reviewed by a consultant retained by their health care insurer who determined that the first day of each hospital stay was not medically necessary. The record indicates that defendant was placed in the hospital pursuant to her own decision or that of her doctor.

Plaintiff filed suit to collect its outstanding hospital bill for services provided to Mrs. Summerson. Defendants admitted that they owed the amount sought except for two days of hospital room charges in the amount of $500. Defendants filed an affirmative defense asserting the room charges were not medically necessary. Plaintiff filed a motion for summary judgment, attaching the bills incurred by defendants and two affidavits regarding plaintiff’s procedure for processing and billing patients and the reasonableness of the specific charges to defendants. These affidavits were not refuted. After hearing arguments, the trial court granted plaintiff’s motion for summary judgment and entered judgment against defendants.

The issue presented on appeal is whether the trial court erred in granting plaintiff’s motion for summary judgment where the defendants raised the affirmative defense that part of the services provided were not medically necessary. We affirm.

Defendants first argue that public policy and statutory guidelines necessitate consideration of the affirmative defense of medical necessity. Defendants, however, cite no cases or other authority which indicates that the public and social policy of this State required the trial court to make a determination of medical necessity in this case. Secondly, and more significantly, defendants cite many cases which hold that the medical necessity of services provided by a hospital or doctor is a question of fact to be decided after a hearing on the merits. (See Blue Cross & Blue Shield of Kentucky, Inc. v. Smither (Ky. App. 1978), 573 S.W.2d 363; Lockshin v. Blue Cross (1980), 70 Ohio App. 2d 70, 434 N.E.2d 754; Haggard v. Blue Cross-Blue Shield (Ala. 1980), 401 So. 2d 781, aff’d (Ala. 1981), 401 So. 2d 783; Sarchett v. Blue Shield (1987), 43 Cal. 3d 1, 729 P.2d 267, 233 Cal. Rptr. 76.) These cases, however, are actions by insured parties against insurers. The question of medical necessity was relevant to whether the insurers were obligated to provide coverage to their insureds for treatment received which the insurers considered medically unnecessary. Here, the hospital is suing its patient for services rendered at the request of the patient or her own private treating physician.

Defendants further cite the cases of Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253, and Ferguson v. New England Mutual Life Insurance Co. (1990), 196 Ill. App. 3d 766, 554 N.E.2d 1013, to support their lack of medical necessity argument. In Darling, plaintiff sued the defendant hospital for negligent medical and hospital treatment. Part of the hospital’s defense was that it was not responsible for the actions of its nurses or the attending physician who was on call in the hospital’s emergency room. The court held that hospitals, by the employment of nurses and doctors, have taken on greater responsibilities in patient care and are therefore held to a standard of conduct comparable to similar facilities in the area. (Darling, 33 Ill. 2d 326, 211 N.E.2d 253.) This case does not involve any form of alleged negligent conduct by the hospital in the performance of its patient care.

In Ferguson, plaintiff patient sued her doctor for breach of contract in failing to provide services which were medically appropriate. The court held that whether the doctor’s services were medically appropriate was a question of fact which could not be resolved on a motion to dismiss. (Ferguson, 196 Ill. App. 3d 766, 554 N.E.2d 1013.) This case does not involve the appropriateness of the services rendered to determine whether plaintiff was negligent in the care it provided.

We consider Sherman Hospital v. Wingren (1988), 169 Ill. App. 3d 161, 523 N.E.2d 220, on point. In Sherman Hospital, plaintiff hospital sued defendant patient for services rendered and defendant, on appeal, raised the issue of medical necessity of the services rendered. Although the court determined that defendant had waived this defense, the court noted that “no Illinois cases *** have required a hospital to prove as part of its case the necessity of its services.” (Sherman Hospital, 169 Ill. App. 3d at 164, 523 N.E.2d at 222.) Citing Victory Memorial Hospital v. Rice (1986), 143 Ill. App. 3d 621, 493 N.E.2d 117, the court held that a hospital seeking recovery for services rendered must prove only that its charges are reasonable by showing they are customary and usual as compared to other area hospitals. Sherman Hospital, 169 Ill. App. 3d 161, 523 N.E.2d 220.

Defendants in this case are, in effect, suggesting that the hospital should not be able to rely upon defendants’ physician’s request, but must instead get a second opinion prior to admitting a patient. This creates an undue burden upon plaintiff. Had the requesting physician been employed by plaintiff, medical necessity could arguably be a defense, but that is not the case herein.

Plaintiff has established its prima facie case through the affidavits of its employees. Defendants have not refuted these affidavits and, therefore, summary judgment was appropriate. The trial court decision is affirmed.

Affirmed.

McCUSKEY and BARRY, JJ., concur.


author: JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TODD B. MANNON, Defendant-Appellant.
    Third District
    No. 3 — 90—0842
    Opinion filed August 14, 1991.
    Louis E. Olivero & Associates, of Peru (Douglas B. Olivero, of counsel), for appellant.
    Donald D. Knuckey, State’s Attorney, of Lacón (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Todd Mannon, appeals the order of the circuit court of Marshall County denying his petition to rescind statutory summary suspension. We reverse.

The defendant was stopped in Henry by a police officer and charged with driving with no red taillights and no registration for his boat trailer. Immediately after the officer stopped the defendant’s vehicle, he was advised by radio dispatch that defendant’s driving privileges were revoked. Defendant was then taken into custody, searched, cuffed and transported to the Marshall County jail. When defendant was placed in custody, the officer did not make any mention or inquire of the defendant concerning possible alcohol intoxication. At the scene, the officer did not ask the defendant if he had consumed alcohol or request him to perform any field sobriety tests. Upon arriving at the jail, the officer completed his paperwork for the initial charges, i.e., driving while license revoked, no red taillights, and no boat trailer registration.

After completing this paperwork, the officer then asked defendant to perform field sobriety tests at the jail. The defendant complied. At the conclusion of the field sobriety tests, the officer admonished defendant concerning the statutory warnings for administration of breath or blood-alcohol tests. The officer requested defendant take a breathalyzer test. Defendant refused and was then arrested for “driving under the influence of alcohol” (DUI). In conjunction with defendant’s arrest for DUI, a summary suspension of his driving privileges was issued 46 days later.

Defendant contends the trial court erred in denying defendant’s petition to rescind the statutory summary suspension. We agree.

According to section 2 — 118.1(b) of the Vehicle Code (the Code), there are four areas of inquiry with respect to seeking rescission of a statutory summary suspension. (Ill. Rev. Stat. 1989, ch. 951/2, par. 2 — 118.1(b).) As stated in section 2 — 118.1(b)(1) of the Code, the first area of inquiry is “Whether the person was placed under arrest for an offense as defined in Section 11 — 501 [of the Vehicle Code], or a similar provision of a local ordinance, as evidenced by the issuance of a Uniform Traffic Ticket.” (Ill. Rev. Stat. 1989, ch. 951/2, par. 2 — 118.1(b)(1).) The test for determining whether an arrest has occurred is whether a reasonable man, innocent of any crime, would have concluded that he was not free to leave considering the surrounding circumstances. (People v. Jones (1990), 198 Ill. App. 3d 572, 555 N.E.2d 1143.) Factors to consider when determining if a suspect has been arrested include continuing possession of the defendant’s driver’s license by a police officer, placing of a suspect into a police car, and the duration of the suspect’s detention. (People v. Goodman (1988), 173 Ill. App. 3d 559, 527 N.E.2d 1055.) At the time defendant was taken into custody, he was clearly under arrest only for driving while license revoked. The defendant was searched, cuffed and transported to the county jail. It was not until the officer completed the requisite paperwork concerning the initial charges that he investigated the possible DUI offense. Defendant was not advised, nor did he believe, he was under arrest for DUI until after he refused the officer’s request to submit to a breathalyzer test. Furthermore, defendant was not served with a uniform citation for DUI nor had one been issued.

The applicable statute in this case provides in pertinent part:

“Any person who drives or is in actual physical control of a motor vehicle *** shall be deemed to have given consent *** to a *** test of *** breath *** if arrested, as evidenced by the issuance of a Uniform Traffic Ticket for any offense as defined in Section 11 — 501 ***.” (Ill. Rev. Stat. 1989, ch. 951/2, par. 11-501.1(a).)

Therefore, according to the statute, the prerequisite for a valid arrest for DUI is the issuance and service of a written citation sufficiently apprising the defendant he is, or has been, charged with DUI. According to section 11 — 501.1(a) of the Code, if a suspect has not been properly arrested for DUI by the service of a uniform citation, the statutory summary suspension shall not issue. In People v. Wozniak (1990), 199 Ill. App. 3d 1088, 557 N.E.2d 996, the defendant’s summary suspension was properly rescinded because defendant had not been properly arrested pursuant to section 11 — 501.1(a) of the Code. (Ill. Rev. Stat. 1989, ch. 951/2, par. ll-501.1(a).) This court made clear in Wozniak that the statutory summary suspension provisions are triggered by an arrest pursuant to statute for DUI. The issuance of a uniform citation is the pivotal prerequisite that must be fulfilled in order to arrest a suspect for DUI. In reviewing the record in the present case, the officer did not issue or serve a citation upon the defendant until after he requested defendant undergo a breathalyzer. An arrest for DUI did not occur until following defendant’s refusal to submit to a breath test. Therefore, the summary suspension of his driving privileges should have been rescinded by the trial court.

For the reasons heretofore indicated, the order of the circuit court of Marshall County is reversed.

Reversed.

SLATER and GORMAN, JJ., concur.


author: JUSTICE GORMAN

text:
    FIRST NATIONAL BANK OF JOLIET, Plaintiff-Appellee, v. ASSOCIATED STOCKDALE COMPANIES, Defendant-Appellant.
    Third District
    No. 3-90-0730
    Opinion filed August 14, 1991.
    Gomien, Root & Rigazio, of Morris (Paul E. Root, of counsel), for appellant.
    Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet (A. Michael Wojtak, of counsel), for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

The plaintiff, First National Bank of Joliet, brought an action for declaratory judgment against the defendant, Associated Stockdale Companies, Inc. (Stockdale), seeking a declaration of whose perfected security interest in certain crops was entitled to priority. The circuit court entered a declaratory judgment in favor of the bank. Stockdale now appeals. We affirm. Lyle Hecht, Kimberly Hecht, Edward Hecht, and Alice Hecht signed a security agreement dated June 1, 1983, giving the bank a security interest in crops growing or to be grown on specified parcels of land in Grundy County. The security interest was given to secure the payment of any and all indebtedness of Edward and Lyle Hecht to the bank, whether then existing or thereafter arising. On June 29, 1983, the bank filed with the recorder of deeds of Grundy County a financing statement noting the debtors, the secured party, and the collateral that had been the subject of the security agreement. (A continuation of this financing statement was filed on March 4, 1988.)

The Hechts signed two promissory notes dated August 22, 1985, with the bank as payee. Both notes were renewals of previously existing indebtedness, and both were due and payable on February 22, 1986. The principal amounts of the notes were $159,000 and $416,684.83. (The record indicates that the indebtedness represented by these notes has never been satisfied.)

Stockdale sold to the Hechts fertilizer and other supplies needed for production of the 1986 crops. It sold these supplies on open account between November 18, 1985, and June 23, 1986. On October 3, 1986, Stockdale obtained a security agreement from Lyle Hecht granting it a security interest in the 1986 crops to secure payment of the indebtedness for the supplies. A financing statement was duly filed with the recorder of deeds of Grundy County by Stockdale on October 6, 1986.

The Hechts planted their cash crops between April 25, 1986, and May 19, 1986.

On March 18, 1987, the bank brought this declaratory judgment action to determine whose security interest in the Hechts’ 1986 crops was superior, its or Stockdale’s. The bank and Stockdale had previously agreed to hold in escrow some of the proceeds from the sale of the Hechts’ 1986 crops, with disposition of that sum to depend on the outcome of the declaratory judgment action. The bank and Stockdale entered into a stipulation of facts. Based on that stipulation and after considering the written briefs and arguments of the parties, the circuit court decided that the bank’s security interest was superior, and entered judgment accordingly.

The sole issue presented is whether section 9 — 312(2) of the Uniform Commercial Code (Ill. Rev. Stat. 1985, ch. 26, par. 9 — 312(2)) gives Stockdale’s perfected security interest in the Hechts’ 1986 crops priority over the bank’s perfected security interest in those crops.

Section 9 — 312(2) of the Uniform Commercial Code states as follows:

“A perfected security interest in crops for new value given to enable the debtor to produce the crops during the production season and given not more than three months before the crops become growing crops by planting or otherwise takes priority over an earlier perfected security interest to the extent that such earlier interest secures obligations due more than six months before the crops become growing crops by planting or otherwise, even though the person giving new value had knowledge of the earlier security interest.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 26, par. 9 — 312(2).

Stockdale argues that in order to give this provision any practical effect, the time when an “obligation” is deemed “due” ought to be the time when value is originally given to the debtor whereby the debtor incurs the obligation. Stockdale argues that the term “obligations” in this provision should not be interpreted to include promissory notes merely embodying antecedent debts. Stockdale reasons that since the original indebtedness to the bank (that eventually became embodied in the promissory notes) had been incurred long before six months prior to the planting of the 1986 crops, Stockdale’s security interest for supplies provided in the three-month period prior to planting has priority over the bank’s security interest for indebtedness represented by the promissory notes.

Stockdale argues alternatively that “due” should simply be interpreted as “due and owing” rather than “due and payable.” Stockdale reasons that since the bank’s promissory notes were “due and owing” on August 22, 1985, more than six months before the 1986 crops were planted, Stockdale’s security interest for supplies provided in the three-month period prior to planting has priority over the bank’s security interest for indebtedness represented by the promissory notes.

A number of Federal and sister State cases have applied section 9 — 312(2) of the Uniform Commercial Code and have consistently interpreted the term “due” therein as meaning “overdue.” (See, e.g., Salem National Bank v. Smith (7th Cir. 1989), 890 F.2d 22; In re Connor (8th Cir. 1984), 733 F.2d 523; United States v. Minster Farmers Cooperative Exchange, Inc. (N.D. Ohio 1977), 430 F. Supp. 566; McCoy v. Steffen (1987), 227 Neb. 72, 416 N.W.2d 16.) In Decatur Production Credit Association v. Murphy (1983), 119 Ill. App. 3d 277, 456 N.E.2d 267, the appellate court implicitly adopted the position that the term “due” in section 9 — 312(2) means “overdue.” None of these opinions discusses the purposes the drafters of section 9 — 312(2) sought to achieve by this section, and the present parties do not present any authority to shed light on why the drafters chose the words they chose.

We recognize that if “due” in section 9 — 312(2) means “overdue,” that section gives less benefit to farmers seeking crop production financing (and those wishing to provide such financing) than if “due” means “due and owing.” While previously secured lenders are placed at great advantage in this situation, farmers are not without business options to counter an unscrupulous lender in most instances. On the other hand, a contrary interpretation would probably make it harder to get credit in the first instance, and would probably require lenders to be more aggressive in enforcing their rights in collateral and in doing so at an earlier time. In short, we see no happy medium interpretation here, and no particular policy reason to interpret the term one way or the other.

Given that courts have consistently interpreted “due” in section 9 — 312(2) as meaning “overdue,” that the legislature has not seen fit to amend this provision at any time since it was first adopted in 1962, that there has been no showing that the drafters of this provision had a purpose for it inconsistent with this interpretation, and that the drafters could have easily chosen another word (such as “created”) to make clear a contrary interpretation, the trial court correctly interpreted “due” as meaning “overdue” in this provision.

Since the due dates of the bank’s promissory notes at issue fell within the six-month period prior to the planting of the Heehts’ 1986 crops, Stockdale cannot claim that its security interest has priority over that of the bank by virtue of section 9 — 312(2). As no other basis for priority has been argued by Stockdale, the general priority rule of section 9 — 312(5)(a) (Ill. Rev. Stat. 1985, ch. 26, par. 9 — 312(5)(a)) applies. This rule, as applied to the facts of the present case, gives priority to the security interest of the first of two secured creditors to file a financing statement covering the collateral. Since the bank filed its financing statement earlier than did Stockdale, the trial court did not err in entering its declaratory judgment in favor of the bank.

Affirmed.

STOUDER, P.J., and HAASE, J., concur.


text:
    ROY M. JOHNSTON, Plaintiff-Appellant, v. TRI-CITY BLACKTOP, INC., et al., Defendants-Appellees (Tim W. Downing, d/b/a Tim W. Downing, Architect, AIA, Defendant).
    Third District
    No. 3 — 90—0756
    Opinion filed August 14, 1991.

      Alan G. Blackwood, of Blackwood, Nowinski, Huntoon & Swanson, P.C., of Moline (Robert P. Swanson, of counsel), for appellant.
    Ralph W. Heninger, of Heninger & Heninger, of Davenport, Iowa, for appellee Tri-City Blacktop, Inc.
    Katz, McAndrews, Balch, Lefstein & Feiweger, of Rock Island (Robert T. Park, of counsel), for appellee Ken Curry Construction, Inc.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The plaintiff, Roy M. Johnston, appeals the Rock Island circuit court’s orders granting summary judgment as to counts I, III and Y, and dismissing count IV of plaintiff’s complaint. We affirm.

Plaintiff owns the Kennedy Square Shopping Center in East Moline, which was built in 1978. Defendant Ken Curry Construction, Inc. (Curry), was the general contractor of the entire project, including the construction of the parking lot, driveways, and ramps. As the general contractor and pursuant to written contract, Curry was responsible for the acts and omissions of his employees, agents and the subcontractors involved in building the shopping center. Defendant Tri-City Blacktop, Inc. (Tri-City), supplied the materials and constructed the parking lot, pavement, driveways and ramps. Defendant Tim Downing was the architect of the project. Downing is not a party in this appeal.

Within a year following completion of the parking lot, certain areas began to crack and break. Plaintiff immediately notified defendants of this deterioration. In 1979, Tri-City repaired the deteriorated pavement pursuant to its written one-year guaranty. However, in 1980, Tri-City refused to undertake similar repairs without compensation. Tri-City contended the one-year guarantee had expired.

By 1983, the pavement continued to further deteriorate. Plaintiff then complained to Downing. Downing advised the plaintiff that because the parking lot had been in place so long, the removal and analysis of core samples would be of little value in determining the cause of the pavement’s deterioration. Based on this professional advice, as well as economic circumstances, plaintiff chose not to hire an engineer to remove and analyze core samples from the parking lot.

As time elapsed, continued deterioration occurred. In 1985, plaintiff contacted several local engineering firms to employ one of them to analyze and determine the cause of the deterioration. No local engineering firms could or would determine the cause of the deterioration. Plaintiff believed that since the firms he contacted were local, they did not want to criticize Tri-City. Plaintiff then hired a Peoria engineering firm, which indicated they could determine the cause of the deterioration by removing core samples from the pavement. In the spring of 1986, the Peoria engineering firm removed and analyzed core samples. They determined the materials originally used in the construction of the pavement were substandard. They concluded this caused the premature deterioration of the parking lot.

Plaintiff filed his complaint shortly thereafter. Count I contained allegations of breach of contract against Tri-City. Counts III, IV and V contained allegations of breach of contract, negligence and vicarious liability against Curry. Count II is of no consequence in this appeal.

The trial court dismissed count IV on the basis that plaintiff could not recover economic damages for Curry’s alleged negligence. In so ruling, the trial court applied the Moorman doctrine, which generally holds that economic damages are not recoverable in a negligence suit. We agree. Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443.

The trial court granted summary judgment in favor of defendants as to counts I, III and V on the basis the actions were barred by the two-year statute of limitations. We agree. Ill. Rev. Stat. 1983, ch. 110, par. 13 — 214(a).

Plaintiff raises several issues on appeal. Initially, plaintiff contends the trial court erred in dismissing count IV, wherein plaintiff sought to recover repair and replacement damages against Curry for his negligence in overseeing the construction of the pavement. These types of damages are generally regarded as economic damages. Economic damages are considered damages for inadequate value, costs of repair and replacement of the defective product, and consequential loss of profits. (Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d at 82, 435 N.E.2d at 449.) Plaintiff claims the trial court’s reliance on Moorman is misplaced because the present situation is distinguishable from Moorman. We disagree. Plaintiff claims Moorman involved a defective product, i.e., cracked storage tank, and this matter involves a service, i.e., construction of pavement.

The present case is analogous to the case of 2314 Lincoln Park West Condominium Association v. Mann, Gin, Ebel & Frazier, Ltd. (1990), 136 Ill. 2d 302, 555 N.E.2d 346. In 2314 Lincoln Park West Condominium Association, a condominium association sued the contractors and architect for defects in the design and construction of the building which caused plaintiff’s repair damages. The trial court properly dismissed the counts of the complaint pursuant to Moorman. The trial court then certified the following issue for interlocutory appeal:

“Should there be an exception to the rule set forth in Moorman which would permit Plaintiffs seeking to recover purely economic losses due to defeated expectations of a commercial bargain to recover from an architect or engineer in tort?” (136 Ill. 2d at 306.)

The supreme court held that a suit against architects seeking economic damages in tort is not an exception to the Moorman doctrine and will not lie in such circumstances. 2314 Lincoln Park West Condominium Association v. Mann, Gin, Ebel & Frazier, Ltd., 136 Ill. 2d at 313-14, 555 N.E.2d at 351.

Plaintiff next contends the trial court erred in granting summary judgment in favor of defendants as to counts I, III and V, based on the expiration of the applicable statute of limitations. We disagree. Summary judgment is an extraordinary measure which should only be granted when the movant’s right to judgment is clear and free from doubt as a matter of law. (Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.) The appropriate standard of review regarding summary judgment is to determine if the trial court properly decided there were no material issues of fact and that judgment was correct as a matter of law. All necessary parties in this case were deposed prior to the trial court granting summary judgment. We find the trial court correctly determined there were no issues involving material facts.

Based upon section 13 — 214(a) of the Code of Civil Procedure, the applicable two-year statute of limitations expired prior to plaintiff filing his complaint in this cause. (Ill. Rev. Stat. 1983, ch. 110, par. 13— 214(a).) There is no dispute that the applicable and appropriate statute of limitations was the two-year statute contained within section 13 — 214(a).

Section 13 — 214(a) provides:

“Actions based upon tort, contract or otherwise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property shall be commenced within 2 years from the time the person bringing an action, or his or her privity, knew or should reasonably have known of such act or omission.” (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 214(a).)

Subsequent to the filing of this action, the statute of limitations was extended by our legislature from two years to four years. This adds some confusion to this issue. (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 214(a).) However, subsequent legislation extending the statute of limitations should not be applied retroactively to revive a time-barred cause of action unless the legislature indicates otherwise. Arnold Engineering, Inc. v. Industrial Comm’n (1978), 72 Ill. 2d 161, 380 N.E.2d 782.

Plaintiff contends the statute of limitations began to run in April 1986 when he was informed by the last engineer he contacted that the materials comprising the pavement were substandard. The trial court disagreed and held the statute of limitations began to run in April 1983 when plaintiff knew or should have known the deterioration of the pavement was unusual and likely actionable. The record reflects plaintiff was aware that his blacktop pavement should last 10 to 15 years. However, plaintiff had immediate and continuous problems with the parking lot. For instance, in 1979, when several pieces of blacktop became totally detached, plaintiff contacted Tri-City to repair the damaged blacktop. The record reflects that soon after the pavement began deteriorating, plaintiff thought Tri-City made mistakes in the construction of the pavement. Plaintiff knew or should have known after talking with various contractors and repairmen that there were serious problems with the asphalt.

The fact that plaintiff did not know the particular or specific reasons for the cause of the deterioration is not important. According to Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 416, 430 N.E.2d 976:

“At some point the injured person becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved.”

From the record, it appears the the trial judge correctly resolved the statute of limitations issue with respect to counts I, III and V. Accordingly, we affirm the trial court’s order of summary judgment.

For the foregoing reasons, the circuit court of Rock Island County is hereby affirmed.

Affirmed.

STOUDER, P.J., and GORMAN, J., concur.