author: JUSTICE RARICK

text:
    TONI L. DECKER, Special Adm’r of the Estate of Richard Decker, Deceased, Plaintiff-Appellee, v. ST. MARY’S HOSPITAL, Defendant-Appellant.
    Fifth District
    No. 5—91—0170
    Opinion filed August 31, 1993.

      Carl W. Lee and Thomas R. Peters, both of Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville, for appellant.
    Amiel Cueto and Thomas M. Daley, both of Cueto, Cueto & Cueto, Ltd., of Belleville, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, Toni Decker, special administrator of the estate of Richard Decker, filed a nine-count complaint in the circuit court of St. Clair County against St. Mary’s Hospital and eight other defendants alleging, inter alia, medical malpractice resulting in the wrongful death of her husband.

In November of 1981, Richard Decker began experiencing headaches and became irritable. By December, he was also experiencing hallucinations and delusions. He was admitted to the emergency room at Salem Memorial Hospital on the morning of December 13, 1981. The emergency room physician prescribed various drugs and released Decker. Decker’s condition worsened throughout the day. He did not know who he was and was talking incoherently. Decker returned to Salem Memorial that evening where he denied any headache but was disoriented and spoke of various fictitious experiences. The emergency room physician diagnosed “situational reaction” and, along with Decker’s treating physician, Dr. Lakshmanan, referred Decker to Dr. Meera Gandhy, a psychiatrist with staff privileges at St. Mary’s Hospital.

Dr. Gandhy admitted Decker to St. Mary’s, where she examined him and diagnosed psychotic depression and headaches of unknown etiology. She performed numerous diagnostic tests, including a neurological examination, a brain scan, and a CT scan, all of which yielded normal results. Although she suspected an aneurysm, Dr. Gandhy released Decker from the hospital and arranged for outpatient consultation on December 29, 1981, with instructions that if he were to experience any problems he was to call her immediately or report to the nearest emergency room. She also made an appointment for Decker to see Dr. Welch, a neurologist, on January 19, 1982.

Upon his release, Decker returned home and chopped wood for three or four hours. Mrs. Decker left later that evening to go bowling. When she returned, Mr. Decker’s headaches had returned and he was acting strangely. Mr. Decker went to sleep, but around 5 a.m. he became more ill. Mrs. Decker called an ambulance, but Richard Decker was dead by the time it arrived. A subsequent autopsy revealed that the cause of death was a massive intracerebral hemorrhage which resulted from a ruptured aneurysm.

The first five counts of the complaint were directed at various drug manufacturers and alleged that the various drugs taken by Decker resulted in increased intercranial pressure and led to the fatal hemorrhage. The remaining four counts of the complaint were directed at St. Mary’s Hospital, Salem Memorial Hospital, Dr. Lakshmanan, and Dr. Gandhy and alleged medical malpractice.

Soon after the complaint was filed, the count against Salem Memorial Hospital was voluntarily dismissed. The remaining defendants filed motions to transfer venue. In response, plaintiff argued that St. Clair County was the most convenient forum because of the proximity of the airport in St. Louis and the fact that Belleville was only 70 miles from Centralia, the location of St. Mary’s Hospital. Plaintiff also asserted statutory venue, alleging that all five drug manufacturers did business in St. Clair County and that one, Pfizer, Inc., maintained offices and a factory in St. Clair County. Defendants’ motions to transfer venue were denied.

Plaintiff served requests to produce and interrogatories on each of the five drug manufacturers. All but Pfizer were subsequently voluntarily dismissed by plaintiff. Subsequent depositions of plaintiff’s experts established that Vistrail, the drug manufactured by Pfizer, played no role in Decker’s death. Pfizer filed a motion for summary judgment, which was granted. Summary judgment was also granted in favor of Dr. Lakshmanan and plaintiff reached a settlement with Dr. Gandhy.

St. Mary’s Hospital, now the sole defendant, filed a motion to transfer venue to Marion County or, in the alternative, to transfer the cause on grounds of forum non conveniens based upon the changed circumstances. St. Mary’s motion to transfer was denied.

Ultimately, the case proceeded to trial on three counts. Count I alleged that Dr. Gandhy was the agent of the hospital and that the hospital was negligent by virtue of the acts and/or omissions of Dr. Gandhy. Count II alleged direct negligence by the hospital, and count III alleged negligence by the hospital based upon the doctrine of res ipsa loquitur.

At trial, Dr. Gandhy testified that while Mr. Decker was hospitalized, she did not inquire of any hospital personnel whether they had any other neurologist or neurosurgeon with whom she could consult. She decided to wait for an outpatient consultation because Decker seemed to be doing better. She also testified that Decker’s psychiatric problems were independent of his later discovered aneurysm.

Plaintiff’s expert, Dr. Levin, testified that had an aneurysm been diagnosed, it would have been operable. He gave no testimony regarding the standard of care for either Dr. Gandhy or the hospital, nor did he testify regarding any breach thereof. Dr. Adams, plaintiff’s only other medical expert, testified that in his judgment Dr. Gandhy’s care was deficient in that she failed to obtain a neurological or neurosurgical consultation. Dr. Adams gave no opinion regarding the hospital’s standard of care.

Dr. Murphy, defendant’s expert, testified that decedent suffered from a dissecting aneurysm that was both undiagnosable and untreatable. He opined that Dr. Gandhy did not deviate from the standard of care.

The jury returned separate verdicts on each of the three counts. The jury returned verdicts for the plaintiff on counts I and II and for the hospital on count III. The jury awarded damages of $360,000. Plaintiff filed a post-trial motion seeking a new trial on damages only, and defendant filed a motion for judgment notwithstanding the verdict. The trial court denied defendant’s motion for judgment notwithstanding the verdict and granted plaintiff’s motion for a new trial on the issue of damages. After a second trial, the jury awarded plaintiff damages in the amount of $1 million. This appeal followed.

On appeal, St. Mary’s first argues that the trial court erred in refusing to enter judgment notwithstanding the verdict because plaintiff failed to present necessary expert testimony and because plaintiff failed to establish a claim based upon agency.

A judgment notwithstanding the verdict should be entered only where all of the evidence, when viewed in a light most favorable to the nonmoving party, so overwhelmingly favors the movant that no contrary verdict based upon the evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

With respect to its first contention, St. Mary’s maintains that there was no expert testimony that it deviated from the appropriate standard of care, and that the absence of such testimony required a judgment for the defendant. A hospital has a duty to its patients to conform to the legal standard of reasonable conduct in light of apparent risk. (Ohligschlager v. Proctor Community Hospital (1973), 55 Ill. 2d 411, 303 N.E.2d 392.) While not an insurer of a patient’s safety, the hospital owes the patient a duty of protection and must exercise a degree of reasonable care as the patient’s known condition requires. (Pickle v. Curns (1982), 106 Ill. App. 3d 734, 435 N.E.2d 877.) In a malpractice action against a hospital, a plaintiff must prove that the hospital failed to comply with the applicable standard of care which guides institutions holding themselves out as devoted to the care and saving of human life and that such failure proximately resulted in the complained-of injury. (Hansbrough v. Kosyak (1986), 141 Ill. App. 3d 538, 490 N.E.2d 181; Scardina v. Colletti (1965), 63 Ill. App. 2d 481, 211 N.E.2d 762.) The standard of care that a hospital is held to is the accepted standard of care within the medical community. (Johnson v. St. Bernard Hospital (1979), 79 Ill. App. 3d 709, 399 N.E.2d 198.) Expert testimony is necessary to establish the applicable standard of care in malpractice actions against hospitals except where the hospital is so grossly negligent or the treatment is so common that a lay person could readily appraise it. (Northern Trust Co. v. Upjohn Co. (1991), 213 Ill. App. 3d 390, 399, 572 N.E.2d 1030, 1040; Mielke v. Condell Memorial Hospital (1984), 124 Ill. App. 3d 42, 463 N.E.2d 216.) In such cases, expert testimony is not required.

The function of a modem hospital is not limited to the narrow sphere of medical practice, nor does it simply provide facilities for treatment. As our supreme court has noted:

“[Wjhile various medical judgments are necessarily a daily part of hospital administration, they do not constitute the entirety of a hospital’s function, as is the case with single medical practitioners. Thus, we deem it appropriate to the diversity inherent in hospital administration that a broad range of evidence be available to establish the applicable standard of care.” Greenberg v. Michael Reese Hospital (1980), 83 Ill. 2d 282, 293, 415 N.E.2d 390, 395-96.

Accordingly, evidence such as a hospital’s accreditation standards, customs, policies, regulations, standards, State licensing requirements, and bylaws is admissible though it is not conclusive. Andrews v. Northwestern Memorial Hospital (1989), 184 Ill. App. 3d 486, 540 N.E.2d 447, citing Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253; Edelin v. Westlake Community Hospital (1987), 157 Ill. App. 3d 857, 510 N.E.2d 958; Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 491 N.E.2d 803; Block v. Michael Reese Hospital & Medical Center (1981), 93 Ill. App. 3d 578, 417 N.E.2d 724.

Plaintiff maintains that Dr. Gandhy testified that because she suspected an aneurysm, she desired that Decker be examined by a neurologist during his stay in the hospital. When she inquired about a consultation with Dr. Welch, the neurologist who visited the hospital and saw patients on a monthly basis, she was told by Bill Carroll, the supervisory nurse of the psychiatric care unit, that Dr. Welch was on vacation. In fact, Dr. Welch was seeing patients at St. Mary’s on December 22, 1981, while Decker was a patient. According to Anthony Del Vecchio, vice-president of St. Mary’s, Carroll’s duties included scheduling consultations if requested by a staff physician. Plaintiff also points out that the hospital bylaws specifically provide that the executive committee had a duty to ensure that its staff members obtained proper consultations. Plaintiff contends that the hospital had a duty under its own bylaws to ensure that Dr. Gandhy obtained a consultation, and that the hospital breached that duty when its employee, Bill Carroll, negligently told Dr. Gandhy that Dr. Welch was unavailable.

While the decision on whether to obtain a neurological consultation was a matter of medical judgment on the part of Dr. Gandhy, properly providing such consultation once she requested it was an administrative function. Informing Dr. Gandhy that Dr. Welch was unavailable, when in fact he was available, was evidence of negligence on the part of the hospital in performing this function. This was not a matter of medical judgment, and no expert medical testimony was required to establish the standard of care. With respect to the issue of proximate cause, Dr. Levin testified that had the arteriogram been performed, the aneurysm would have been detected and could have been corrected. Further, we conclude that no other expert testimony was required, as we find that the failure to properly schedule the requested consultation was an omission the results of which are within the common knowledge and understanding of the ordinary lay person. Under the facts of this case, the hospital had a duty under its own bylaws to ensure that requested consultations were properly scheduled, and there was evidence that duty was clearly breached. (Johnson, 79 Ill. App. 3d at 718, 399 N.E.2d at 206.) Consequently, there was sufficient evidence to support a finding of negligence on the part of the hospital.

When all the evidence is viewed in a light most favorable to plaintiff, we cannot say that the evidence so overwhelmingly favors defendant that judgment for plaintiff cannot stand. Pedrick, 37 Ill. 2d at 510, 229 N.E.2d at 513-14.

St. Mary’s also argues that plaintiff failed to establish a claim based upon agency. Because the plaintiff sufficiently established and proved a claim based upon the direct negligence of St. Mary’s, we need not consider this contention. The jury specifically found for the plaintiff on the direct negligence theory, and therefore, any claim of error or inadequacy of proof with respect to the agency theory does not warrant reversal. See Robertson v. General Tire & Rubber Co. (1984), 123 Ill. App. 3d 11, 462 N.E.2d 706; Kreke v. Caldwell Engineering Co. (1982), 105 Ill. App. 3d 213, 433 N.E.2d 1337; Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1974), 21 Ill. App. 3d 510, 316 N.E.2d 255, aff'd (1975), 62 Ill. 2d 77, 338 N.E.2d 857.

St. Mary’s next maintains that the trial court erred in denying its motion for a change of venue to Marion County. St. Mary’s contends both that plaintiff lacks statutory venue and that the case should have been transferred pursuant to the doctrine of forum non conveniens.

St. Mary’s maintains that Pfizer was joined in bad faith. Plaintiff contends that St. Mary’s waived this issue by failing to file its motion to transfer venue in a timely manner. Section 2 — 104(b) of the Code of Civil Procedure provides:

“All objections of improper venue are waived by a defendant unless a motion to transfer to a proper venue is made by the defendant on or before the date upon which he or she is required to appear or within any further time that may be granted him or her to answer or move with respect to the complaint, except that if a defendant upon whose residence venue depends is dismissed upon motion of plaintiff, a remaining defendant may promptly move for transfer as though the dismissed defendant had not been a party.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 104(b).)

Four of the five drug manufacturers were dismissed upon motion of the plaintiff, but Pfizer was granted summary judgment in its favor. Plaintiff filed her complaint in December of 1983, and St. Mary’s filed its first responsive pleading on January 9, 1984. Pfizer was granted summary judgment on January 5, 1989. We need not address St. Mary’s contention on this point, however, because we are not persuaded that Pfizer was joined in bad faith. Section 2 — 101 of the Code of Civil Procedure provides that an action may be commenced in any county of residence of any defendant who is joined in good faith. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 101.) St. Mary’s contends that plaintiff’s delay of over 16 months in pursuing her claim against Pfizer and her failure to oppose Pfizer’s motion for summary judgment demonstrated that plaintiff joined Pfizer solely for the purpose of fixing venue in St. Clair County. Reviewing the record, we find that Pfizer was the manufacturer of one of the drugs given to decedent. During the discovery process, it was determined that the drug in question played no role in Decker’s death. It was after this revelation that Pfizer sought and obtained summary judgment in its favor. Plaintiff disputes St. Mary’s contention that bad faith was demonstrated by the fact that plaintiff did not oppose the motion, but assuming, arguendo, that she did not, we do not find this to be a particularly persuasive factor given that it was the depositions of plaintiff’s own experts that disclosed the fact that the drug played no role in Decker’s death. We also note plaintiff filed a motion to reconsider the order granting summary judgment in favor of Pfizer.

We next address St. Mary’s contention that the cause should have been transferred pursuant to the doctrine of forum non conveniens. Transfer of an action pursuant to the doctrine of forum non conveniens rests with the discretion of the trial court, and the factors to be considered in whether to transfer an action are: (1) the availability of an alternative forum; (2) the access to the sources of proof; (3) the accessibility of witnesses; (4) the relative advantages and obstacles of obtaining a fair trial; (5) the congestion of the court dockets; and (6) the convenience of the parties. (Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 506 N.E.2d 1291.) St. Mary’s argues that a consideration of these factors clearly demonstrates that Marion County is the appropriate forum because both parties and the decedent resided in Marion County and the alleged negligence occurred in Marion County. St. Mary’s also points out the relative congestion of the docket in St. Clair County as opposed to Marion County. Reviewing the record, we find that at the time of defendant’s motion, four of the seven witnesses expected to be called at trial lived in St. Clair County and two others lived in adjoining St. Louis, Missouri. We cannot say that the trial court abused its discretion in denying the motion to transfer based on forum non conveniens.

St. Mary’s next argues that the trial court erred in introducing evidence of the medical staff bylaws, rules, and regulations. As we have noted above, hospital bylaws, rules, and regulations are admissible as evidence on the issue of the standard of care. (Darling, 33 Ill. 2d at 332, 211 N.E.2d at 257; Rohe v. Shivde (1990), 203 Ill. App. 3d 181, 560 N.E.2d 1113.) St. Mary’s contends that the bylaws in question were the bylaws of the medical staff, not the hospital, and constitute evidence of what the medical staff knew or should have known, knowledge which should not be imputed to the hospital. We note, however, that Anthony Del Vecchio testified that although promulgated by the medical staff, the bylaws were subject to the approval of the hospital’s board of trustees. The bylaws were relevant to the issue of the existence and scope of Dr. Gandhy’s agency relationship with the hospital and to the issue of the standard of care. The medical staff, and its responsibility for the quality of care provided by the hospital, was subject to the ultimate authority of the board.

St. Mary’s next challenges the trial court’s refusal to allow it to elicit from Toni Decker the source of decedent’s referral to Dr. Gandhy. St. Mary’s maintains that such testimony was admissible both for purposes of impeachment and as an admission. Reviewing the record, we find that Dr. Gandhy testified that decedent was referred to her by Salem Memorial Hospital. Exclusion of evidence does not constitute reversible error where such evidence is merely cumulative. (Perez v. Hartmann (1989), 187 Ill. App. 3d 1098, 543 N.E.2d 1023, citing Malawy v. Richards Manufacturing Co. (1986), 150 Ill. App. 3d 549, 501 N.E.2d 376.) Any error arising from the exclusion of Toni Decker’s testimony on this point, or of the exclusion of the Salem Hospital records, was harmless.

St. Mary’s next argument with respect to the conduct of the first trial relates to the manner in which the jury was instructed. St. Mary’s contends that the trial court erred in instructing the jury as to agency with respect to Dr. Gandhy. Having determined that the evidence supported a finding of direct liability on the part of the hospital, we need not consider these alleged errors. St. Mary’s also argues that the trial court erred in instructing the jury on the hospital’s duty. The instructions complained of, plaintiff’s Nos. 28, 29, and 31A, are all clearly supported by Darling and its progeny.

St. Mary’s final argument with respect to the manner in which the jury was instructed at the first trial is that the trial court erred in instructing the jury on the appropriate standard of care. St. Mary’s contends that plaintiff’s instructions Nos. 10, 11, and 12 (Illinois Pattern Jury Instructions, Civil, Nos. 10.01, 10.02, 10.04 (2d ed. 1971) (hereinafter IPI Civil 2d)) erroneously told the jury that the defendant had a duty to exercise ordinary care and was to be judged by a reasonable man standard. As we have noted previously, however, the alleged negligence in this case does not relate to Dr. Gandhy’s medical judgment, but to the hospital’s failure to properly schedule the requested consultation. The instructions were therefore proper.

St. Mary’s final contention of error with respect to the first trial is that the trial court erred in prohibiting St. Mary’s from withdrawing Dr. Smith as an expert and in allowing plaintiff to comment thereon. Reviewing the record, we find that the trial court prohibited St. Mary’s from withdrawing Dr. Smith as a discovery sanction. Plaintiff sought to depose Dr. Smith with respect to other cases in which he testified as an expert. Dr. Smith had indicated that, while such records were voluminous, he would produce them. These records were not produced at Dr. Smith’s deposition, and by the fourth day of trial, when defendant sought to withdraw Dr. Smith, they still had not been produced. The trial court ordered defendant to produce Dr. Smith so that plaintiff could call him as a witness. Dr. Smith was never produced. As a continuation of the sanction, the trial court ruled that plaintiff could mention this fact to the jury. A trial court has broad discretion in imposing sanctions for discovery violations, and the exercise of that discretion will not be disturbed absent clear abuse. (Ramos v. Pyati (1989), 179 Ill. App. 3d 214, 534 N.E.2d 472.) Based upon our review of the record, we conclude that the trial court did not abuse its discretion.

The next issue we address is St. Mary’s contention that the trial court erred in granting plaintiff a new trial on damages only. The trial court’s decision was based upon the “destruction” of plaintiff’s opening statement, the misquoted remarks of Sister Clarette, the violation of an order in limine by witness Del Vecchio, and defendant’s failure to produce Dr. Smith as ordered.

During plaintiff’s opening statement, the trial court instructed plaintiff’s counsel that he could not use his exhibits unless they were marked by the court reporter. The wording of the trial court’s order was vague and unclear, a fact that the trial court itself acknowledged in its order granting a new trial on damages, and plaintiff took the trial court’s ruling to mean that he could not use the exhibits at all during his opening statement. Many of these exhibits went to the issue of damages. Clearly, a party is allowed to show exhibits, which will later be admitted into evidence, to the jury during the opening statement. (LeMaster v. Chicago Rock Island & Pacific R.R. Co. (1976), 35 Ill. App. 3d 1001, 343 N.E.2d 65.) As the trial court itself acknowledged, its failure to clarify its ruling resulted in a misunderstanding which prejudiced plaintiff.

A second reason given by the trial court as a basis for granting a new trial on the issue of damages is the violation of its order in limine. Prior to trial, plaintiff filed a motion in limine requesting the court to enter an order precluding St. Mary’s from making any reference to itself as a not-for-profit corporation. The following exchange took place:

“THE COURT: Let me make this suggestion. I think naturally St. Mary’s Hospital — and you got a nun testifying — is going to — no one’s going to think that that’s a — one of the icons of the commercial enterprises.
MR. LEE: It’s not I.B.M.
THE COURT: Yeah. And so I — I would suggest that in the trial memorandum, let me read that it’s ‘So and so v. St. Mary’s Hospital, a not-for-profit corporation’ and let’s let it go at that.
MR. LEE: And I don’t intend to ask anybody if it is a not-for-profit corporation. If that satisfies Mr. Cueto, that’s fine with me.
MR. CUETO: Well, it doesn’t satisfy me. But you’ve already ruled, Judge, I mean—
THE COURT: Well, I haven’t ruled. I offered that as a suggestion.
MR. CUETO: I would — I would ask — I would object and ask the court not to read that in the trial memorandum.
THE COURT: Well, what you said was in response to my suggestion. Is that right, Mr. Lee?
MR. LEE: Yes.
THE COURT: That you won’t further mention it and so forth?
MR. LEE: Right.
THE COURT: Okay. I’ll read it into the memorandum and then we’re done with the subject.”

At trial, Del Vecchio was called as an adverse witness by plaintiff. When asked his occupation, Del Vecchio replied:

“I’m a Vice President at St. Mary’s Hospital in Centralia, Illinois. It’s a non-profit hospital, Catholic institution owned and operated by the Falechian [sic] Sisters.”

During a recess, plaintiff made a motion for a default judgment based on the violation of the ruling on the motion in limine. Defense counsel acknowledged that he did not instruct the witness not to refer to the hospital as being a not-for-profit corporation. The trial court took plaintiff’s motion for default judgment under advisement and told defense counsel to caution his witnesses with respect to whatever motions in limine had been made. In its order granting a new trial on damages, the trial court indicated that reading to the jury from the trial memorandum the words “a not-for-profit corporation” after St. Mary’s name was “probably *** erroneous” and that it attempted to limit the damage from such order by entering an order in limine. This is an apparent reference to the trial court’s comment that “I’ll read it into the memorandum and then we’re done with that subject.”

Noting the well-settled rule that for violations of an in limine order to serve as the basis for a new trial the order must be specific in its prohibitions and the violations must be clear, St. Mary’s argues that the trial court’s in limine order was not only vague but in fact was not an order at all. We disagree. After reviewing the record, we conclude that while the order was poorly expressed, the trial court did in fact enter an order in limine prohibiting any comment on St. Mary’s status as a not-for-profit corporation, and while not a model of clarity, it was sufficiently clear to put defendant on notice that evidence or testimony of such status was not to be introduced. Further, defense counsel’s comments, during both the discussion on the motion in limine and the discussion on plaintiff’s motion for a default judgment, clearly demonstrate that he knew that an order in limine had been entered precluding such testimony. In the past, it has been noted that “[o]ral in limine motions provide fertile ground for confusion and misunderstanding during trial.” (Lundell v. Citrano (1984), 129 Ill. App. 3d 390, 395, 472 N.E.2d 541, 545; Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 416 N.E.2d 268; see also People v. Vazquez (1990), 194 Ill. App. 3d 516, 551 N.E.2d 656.) This case demonstrates yet again the problems that can arise from oral in limine orders. We strongly advise that in the future in limine motions and orders be written so that all parties are clearly aware of exactly what evidence is to be excluded.

St. Mary’s argues that plaintiff waived any potential error by failing to object when the witness made this comment in question. It has been held that where evidence is offered in violation of an in limine order, the opposing party must object or the issue will be considered to be waived. (Carlson v. City Construction Co. (1992), 239 Ill. App. 3d 211, 606 N.E.2d 400.) However, in the present case, plaintiff complained of Del Vecchio’s violation as soon as was practicable. To have immediately voiced an objection would only have emphasized the objectionable testimony and exacerbated the damage. We find that plaintiff did not waive this issue by waiting until a recess to voice his complaint.

St. Mary’s also argues that the trial court failed to apply or misapplied the appropriate analysis for awarding a new trial on the issue of damages only. The standard for making such a determination is well settled:

“ ‘ “A new trial on the question of damages only is appropriately granted ‘where (1) the jury’s verdict on the question of liability is amply supported by the evidence; (2) the questions of damages and liability are so separate and distinct that a trial limited to the question of damages is not unfair to the defendant; and (3) the record suggests neither that the jury reached a compromise verdict, nor that, in some other identifiable manner, the error which resulted in the jury’s awarding inadequate damages also affected its verdict on the question of liability.’ ” ’ ” Barr v. Groll (1991), 208 Ill. App. 3d 318, 323, 567 N.E.2d 13, 16, quoting Hollis v. R. Latoria Construction, Inc. (1985), 108 Ill. 2d 401, 408, 485 N.E.2d 4, 7, quoting Balestri v. Terminal Freight Cooperative Association (1979), 76 Ill. 2d 451, 456, 394 N.E.2d 391, 393, quoting Robbins v. Professional Construction Co. (1978), 72 Ill. 2d 215, 224, 380 N.E.2d 786, 790.

In the present case, the trial court noted in its order granting a new trial that the jury’s verdict clearly did not consider any loss of society, implicitly finding the award to be inadequate. Further, the verdict on liability was clear and amply supported by the evidence. St. Mary’s contends that liability was predicated upon a single statement by plaintiff’s expert. As we noted above, however, this was not a case of negligent medical judgment, but of administrative negligence in failing to obtain the neurological consultation. Also, we find that the questions of damages and liability are sufficiently separate and distinct that a new trial on damages only was not unfair to St. Mary’s. None of the reasons set forth by the trial court for ordering a new trial related to the issue of liability. Finally, we find nothing in the record which suggests a compromise verdict. We conclude that the trial court correctly limited the second trial to the issue of damages only.

The trial court listed several other reasons for granting a new trial on damages only, but we need not discuss them as we find that the reasons discussed above, either individually or taken together, provide sufficient support for the trial court’s action such that we cannot say the trial court abused its discretion.

St. Mary’s also argues that the trial court erred in failing to grant St. Mary’s a new trial after the second trial. St. Mary’s maintains that the trial court erred in excluding evidence regarding the decedent’s condition prior to his death and in allowing plaintiff’s expert, Dr. Grossman, to testify.

Regarding the first contention, St. Mary’s maintains that the trial court erred in precluding all evidence that decedent was suffering from a psychosis resulting in psychotic depression, hallucination, and delusions along with an inability to work. St. Mary’s argues that not only did the plaintiff have the burden of proving that the decedent was in good health, but the excluded evidence was highly relevant, particularly in light of Dr. Grossman’s testimony that the fact that decedent had not been released to work when discharged from the hospital would have an effect on his employability.

Reviewing the record, we find that there is no evidence indicating that decedent was not released to work because of his psychosis. When Dr. Gandhy discharged decedent from the hospital, her final diagnosis was headache of unknown etiology. She did, however, suspect the presence of an aneurysm. There is no evidence or testimony indicating that the nature of his psychotic condition rendered him unable to work. We conclude that the trial court did not err in excluding this evidence.

St. Mary’s also argues that the trial court erred in allowing the testimony of Dr. Grossman, plaintiff’s expert economist. St. Mary’s maintains that Dr. Grossman failed to account for the fact that even if the aneurysm existed as described by plaintiff’s expert, there was only a 5% chance that Richard Decker would have died. This fact is irrelevant as Richard Decker did in fact die from a ruptured aneurysm.

St. Mary’s contends that there was no testimony received as to the employability of Richard Decker given his psychosis. St. Mary’s maintains that Decker did not work after being diagnosed as having a psychotic depression reaction and that because Dr. Gandhy had not released Decker to return to work when he was released from the hospital, any testimony on lost wages was speculative. This argument is premised upon the assumption that Decker’s psychotic depression rendered him unemployable, an argument which is not supported by the record. At the time of his death Decker was employed as a printer at World Color Press in Salem, Illinois. There was sufficient evidence in the form of Decker’s 1981 tax return to. support Dr. Grossman’s testimony with respect to future earnings. St. Mary’s argues that the tax return was a joint return for Toni and Richard Decker and does not indicate whether any of the couple’s income was attributable to Toni Decker’s employment as a beautician. Dr. Gross-man testified, however, that the tax return listed Toni Decker’s occupation as “housewife” and that all of the income was attributable to Richard Decker.

St. Mary’s also argues that Dr. Grossman was allowed to testify to actual dollar figures rather than expressing his testimony in the form of neutral numbers, and that he improperly incorporated future wage increases into his analysis. With respect to wage increases, Dr. Grossman testified that he considered the general level of wage increases that occurred between 1981 and the date of trial in determining Richard Decker’s lost wages. We find nothing improper or speculative about this testimony. With respect to Dr. Grossman’s failure to express his testimony in neutral figures, while it is true that neutral figures, as opposed to actual figures unique to the case, should be used in illustrating the mathematical process for compiling present cash value (American National Bank & Trust Co. v. Thompson (1987), 158 Ill. App. 3d 478, 511 N.E.2d 1206), we do not believe any potential error to be so prejudicial as to warrant a new trial.

St. Mary’s next argues that the trial court erred in precluding it from questioning Dr. Grossman “regarding the amount his figures would earn for even one year.” St. Mary’s maintains that it was prejudiced by preclusion of this evidence but does not indicate how it was prejudiced thereby. Error in the exclusion or admission of evidence does not require reversal where there has been no prejudice or where the result of the trial has not been materially affected. (Vaughn v. Granite City Steel Division of National Steel Corp. (1991), 217 Ill. App. 3d 46, 576 N.E.2d 874.) We find that St. Mary’s was not prejudiced and that the trial was not materially affected by the trial court’s preclusion of this line of questioning.

St. Mary’s also argues that the trial court erred in allowing Dr. Grossman’s exhibits to go to the jury. Whether to allow exhibits to go to the jury room is within the discretion of the trial court. (Thompson, 158 Ill. App. 3d at 486, 511 N.E.2d at 1211.) After reviewing the record, we find no abuse of discretion in allowing the exhibits in question to go to the jury room during deliberations.

St. Mary’s next argues that the trial court committed numerous errors in instructing the jury. Specifically, St. Mary’s contends that the trial court gave duplicitous instructions in attempting to define the term “society” and erred in instructing the jury regarding the items it could consider in awarding damages.

In defining the term “society,” the trial court gave the following instruction:

“When I use the term ‘society’ in these instructions, I mean the mutual benefits that Holly Decker and Christopher Decker received and would have received from Richard Decker’s continued existence, including love, affection, care, attention, companionship, comfort, guidance, and protection.”

This is a modified version of IPI Civil 2d No. 31.11, which provides:

“When I use the term ‘society’ in these instructions, I mean the mutual benefits that each family member receives from the other’s continued existence, including love, affection, care, attention, companionship, comfort, guidance, and protection.” (IPI Civil 2d No. 31.11 (2d ed. Supp. 1989).)

The modification substituting “Holly Decker and Christopher Decker” for the term “each family member” was necessary because Toni Decker had remarried and was no longer entitled to compensation for loss of society. A similar instruction was approved in Singh v. Air Illinois, Inc. (1988), 165 Ill. App. 3d 923, 520 N.E.2d 852, and in Drake v. Harrison (1987), 151 Ill. App. 3d 1082, 503 N.E.2d 1072. We find that the giving of the instruction as modified did not constitute error.

St. Mary’s also contends that the trial court erred in giving plaintiff’s instruction No. 7 rather than defendant’s tendered instruction No. 1. Both are modified versions of IPI Civil 2d No. 31.04. IPI Civil 2d, No. 31.04 (2d ed. Supp. 1989).

Plaintiff’s No. 7 provides:

“You must fix the amount of money which will reasonably and fairly compensate the widow and lineal next of kin of the decedent, for the pecuniary loss proved by the evidence to have resulted to them from the death of the decedent. ‘Pecuniary loss’ may include loss of money, goods, services and society.
Where the decedent leaves a widow and lineal next of kin the law recognizes a presumption that they have sustained some substantial pecuniary loss by reason of the death. The weight to be given this presumption is for you to decide from the evidence in the case.
In determining pecuniary loss you may consider what the evidence shows concerning the following:
1. What money, goods, and services the decedent customarily contributed in the past;
2. What money, goods, and services the decedent was likely to have contributed in the future;
3. Decedent’s personal expenses and other deductions;
4. What instruction, moral training, and superintendence of education he might reasonably have been expected to give his children had he lived;
5. His age;
6. His sex;
7. His health;
8. His habits of industry, sobriety, and thrift;
9. His occupational abilities;
10. His physical and mental characteristics;
11. The relationship between Richard Decker and his children, Holly and Christopher Decker.”

Defendant’s tendered instruction No. 1 provides:

“You must fix the amount of money which will reasonably and fairly compensate the widow and lineal next of kin of the decedent, for the pecuniary loss proved by the evidence to have resulted to them from the death of the decedent. ‘Pecuniary loss’ may include loss of money, goods, services and society.
Where the decedent leaves a widow and lineal next of kin the law recognizes a presumption that they have sustained some substantial pecuniary loss by reason of the death. The weight to be given this presumption is for you to decide from the evidence in the case.
In determining pecuniary loss you may consider what the evidence shows concerning the following:
1. What money, goods, and services the decedent customarily contributed in the past;
2. What money, goods, and services the decedent was likely to have contributed in the future;
3. Decedent’s personal expenses and other deductions;
4. What instruction, moral training, and superintendence of education he might reasonably have been expected to give his children had he lived;
5. His age;
6. His sex;
7. His health;
8. His habits of industry, sobriety, and thrift;
9. His occupational abilities;
10. His physical and mental characteristics;
11. The relationship between Richard Decker and his children, Holly and Christopher Decker;
12. Toni Decker is not entitled to damages for loss of Richard Decker’s society and sexual relations.”

Even though plaintiff’s instruction No. 7 makes no mention of Toni Decker in item (11) of the list of factors to be considered in determining pecuniary loss, the instruction does tell the jury that it “must fix the amount of money which will reasonably and fairly compensate the widow” and that “[wjhere the decedent leaves a widow and lineal next of kin the law recognizes a presumption that they will have sustained some substantial pecuniary loss.” (Emphasis added.)

A reviewing court will not reverse a cause on the basis of an improper jury instruction unless, considering the instructions as a whole, the alleged improper instruction clearly misled the jury. (Phelps v. Chicago Transit Authority (1991), 224 Ill. App. 3d 229, 234, 586 N.E.2d 352, 355, citing Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 432 N.E.2d 1267.) Viewing the instructions as a whole, it is by no means clear that the instruction in question misled the jury.

Finally, St. Mary’s argues that plaintiff’s closing argument constituted reversible error. St. Mary’s advances numerous complaints with respect to the manner in which plaintiff’s closing argument was conducted. The scope of closing argument is within the sound discretion of the trial court, and such argument will not warrant reversal unless it is so prejudicial as to have deprived the opposing party of a fair trial. (Lewis v. Cotton Belt Route—St. Louis Southwestern Ry. Co. (1991), 217 Ill. App. 3d 94, 576 N.E.2d 918.) Having reviewed the arguments advanced by St. Mary’s in light of the record, we find that, even when considered together, plaintiff’s closing argument was not so prejudicial as to deprive St. Mary’s of a fair trial.

The defendant raises a number of other issues concerning instruction of the jury as well as evidentiary and other rulings of the trial court. We have examined each one and conclude that the contentions are either without merit or are so minor as not to constitute reversible error.

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

Affirmed.

CHAPMAN, P.J., and GOLDENHERSH, J., concur.


source: Caselaw Access Project

author: JUSTICE GOLDENHERSH

license: Public Domain

text:
    ROBERT FIELD, Adm’r of the Estate of Raymond Ewell Field, Deceased, Plaintiff-Appellant, v. FIRST NATIONAL BANK OF HARRISBURG et al., Defendants-Appellees.
    Fifth District
    No. 5—91—0706
    Opinion filed August 26, 1993.
    Rehearing denied September 30, 1993.
    Ronald R. Eckiss, of Harris & Lambert, of Marion, for appellant.
    Thomas J. Wolf, Jr., RC., of Harrisburg, for appellee First National Bank of Harrisburg.

      Timothy L. Fornes, of Rath & Fornes, of Harrisburg, for appellee Patsy Field Wasson.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Robert Field, administrator of the estate of Raymond Ewell Field, deceased, appeals from an order of the circuit court of Saline County entering partial summary judgments in favor of defendants, the First National Bank of Harrisburg (hereinafter Bank) and Patsy Field Wasson (hereinafter Wasson). Plaintiff requested that the trial court certify three questions for interlocutory appeal, pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308). The trial court granted plaintiff’s motion, and the following three questions were certified for review by this court: (1) whether the alleged course of conduct was one transaction or numerous separate transactions for purposes of the commencement of the running of the applicable statute of limitations; (2) in respect to when the statute of limitations commenced running as to the alleged transaction^), did the commencement of the running of the statute of limitations occur on the date of the alleged conversion^) or on the date of the actual discovery of the alleged conversions) by the personal representative of the estate of Robert Ewell Field, deceased; and (3) is the appropriate determination of the issue of the statute of limitations in this case to bar the prosecution of any and all claims for alleged acts of conversion that occurred prior to March 23,1983. We reverse and remand.

I

This is a family dispute involving plaintiff, son of Raymond Ewell Field, and Wasson, daughter of Raymond Ewell Field. Plaintiff filed a two-count complaint against defendants on March 23, 1988, seeking to recover funds that were allegedly improperly obtained by Wasson. Both counts allege that from January 1, 1980, until March 14, 1984, the date of the death of Raymond Ewell Field, Wasson deposited checks endorsed by her father which were restricted by the words “For Deposit Only” into her own account at the Bank. Raymond Ewell Field’s name did not appear on the account. Field resided in a nursing home from the late 1970’s until his death in 1984. Count I alleged that the actions on the part of defendants amounted to wilful and wanton misconduct, and count II alleged that the actions of defendants constituted conversion.

The evidence deposition of Linda Watson, a vice-president at the Bank, is included in the record. According to Watson, Wasson opened two accounts at the Bank. The first was account No. 67 — 2351, opened on July 5, 1974. Originally, account No. 67 — 2351 was in Was-son’s name only. By January 27, 1981, the account was held in the names of Patsy Field Wasson, John F. Wasson, and John F. Wasson II. A second account, No. 67 — 2300, was also held in the name of Wasson at the Bank. Numerous checks made payable to Raymond E. Field were deposited into both accounts by Wasson. Most of Raymond E. Field’s checks went into account No. 67 — 2351. Linda Watson testified about checks that were drawn on the account. For example, a check for $125 made payable to “Cash” was cashed by the Bank. Wasson also made payments out of that account on notes on her car and on a note held by her son. Linda Watson further testified that cancelled checks and deposit slips went to Wasson. None would have been sent to Raymond E. Field, as his name did not appear on the accounts. As far as Watson knew, Raymond E. Field never did any banking through her employer.

Plaintiff knew that his sister, Wasson, took care of their father’s business affairs and had been doing so since his father entered a nursing home in the late 1970’s. Between January 1, 1980, and March 14, 1984, plaintiff’s father received monthly pension checks from the Veterans’ Administration, the Social Security Administration, and the Black Lung Fund. These checks were delivered in his father’s name to Wasson’s mail box. Raymond E. Field did not have a post office box. Prior to his father’s death, plaintiff did not know about the accounts at the defendant Bank and did not know that his father’s name was not on the accounts to which his checks were deposited. Plaintiff agreed that his father was mentally sharp up until his death. Plaintiff and his father did not discuss financial affairs. Plaintiff did receive gifts out of the accounts in question from his father, which were signed by Wasson. Plaintiff never questioned why such checks were signed by Wasson but just accepted that this was the way it was done.

Both defendants filed motions for partial summary judgment, arguing that all alleged acts of conversion that arose prior to March 23, 1983, are barred pursuant to the applicable five-year statute of limitations. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 205.) The trial court agreed and granted partial summary judgments for both the Bank and Wasson. Plaintiff appeals from those orders of the trial court granting partial summary judgments for defendants, and we are asked to consider the three questions previously set forth.

II

The first question we are asked to address is whether the alleged course of conduct was one transaction or numerous separate transactions for purposes of commencement of the running of the applicable statute of limitations.

Plaintiff argues that the complaint filed herein clearly alleges a four-year course of conduct in which both defendants allowed restrictively endorsed pension checks for Raymond E. Field to be deposited into accounts that did not bear his name. According to plaintiff, the deposits were made on a monthly basis, in the same manner, to the same accounts over a four-year period, thus establishing an ongoing “scheme, plan, conspiracy or the like.” Plaintiff discovered this course of conduct after his father’s death on March 14, 1984. Plaintiff commenced this action on March 23, 1988, within five years of his father’s death, thus within the applicable five-year statute of limitations. (See Ill. Rev. Stat. 1987, ch. 110, par. 13 — 205.) Defendants respond that each allegedly converted check constituted a separate cause of action and no facts were alleged or shown which would transform the deposits into anything more than a series of isolated transactions. We agree with plaintiff that the alleged course of conduct was one continuous transaction or scheme for purposes of the commencement of the statute of limitations.

Section 13 — 205 of the Code of Civil Procedure provides for a five-year statute of limitations to recover the possession of personal property or damages for the detention or conversion thereof. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 205.) While we are unable to find any cases in which a series of checks cashed is said to constitute a single transaction for purposes of the running of the statute of limitations, we have found some cases to give us guidance in this area. For example, the law is clear that where a tort involves a continued repeated injury, the limitation period does not begin until the date of the last injury or when the tortious act ceased. (Gass v. Metro-East Sanitary District (1989), 186 Ill. App. 3d 1077, 1084, 542 N.E.2d 1229, 1234; Anderson v. Sutter (1983), 119 Ill. App. 3d 1070, 458 N.E.2d 39; City of Rock Falls v. Chicago Title & Trust Co. (1973), 13 Ill. App. 3d 359, 300 N.E.2d 331.) Moreover, a somewhat similar situation to the one presented here is found in Sommer v. United Savings Life Insurance Co. (1984), 128 Ill. App. 3d 808, 471 N.E.2d 606. In that case, the plaintiffs in count I of their complaint alleged a scheme by their insurance company to defraud. The scheme consisted of a series of misrepresentations which occurred from September 1974, when the first policy was issued, to at least November 1975. The plaintiffs’ complaint alleged misrepresentations which induced reliance and injury as late as December 1975. (Sommer, 128 Ill. App. 3d at 817, 471 N.E.2d at 613.) The Sommer court determined that under this alleged scheme, the applicable five-year statute of limitations did not begin to run until December 1975, and thus the complaint filed in October 1979 was not barred. (Sommer, 128 Ill. App. 3d at 817, 471 N.E.2d at 613-14.) Likewise, under Federal antitrust laws it is well settled that where a continuing “conspiracy” is involved the statute of limitations under the appropriate antitrust law begins to run from the date of the last overt act in furtherance of the conspiracy which allegedly causes damage to the plaintiff. See, e.g., Garelick v. Goerlich’s, Inc. (6th Cir. 1963), 323 F.2d 854; Saunders v. National Basketball Association (N.D. Ill. 1972), 348 F. Supp. 649.

We have reviewed plaintiff’s two-count complaint herein. Contrary to the trial court’s determination, we believe plaintiff alleged facts sufficient to show an ongoing “scheme, plan, conspiracy, or the like” which would transform the deposits into what could be considered a single transaction. The checks were cashed by Wasson over a continuous four-year period, but every one was made payable to her father, Raymond E. Field. Furthermore, all the checks were restrictively endorsed with the words “For Deposit Only.” Nevertheless, the accounts into which these checks were deposited did not bear Raymond E. Field’s name, and he received no information concerning the accounts from the defendant Bank. Therefore, in answer to the first certified question, we hold that the alleged course of conduct is one transaction and that the statute of limitations did not begin to run until the date on which the last pension check was cashed by Wasson.

Ill

Our determination of the first certified question also determines our answer to the third certified question, namely, that it is not appropriate to bar any and all claims for alleged acts of conversion that occurred prior to March 23, 1983. The trial court ruled that because plaintiff’s complaint was not filed until March 23, 1988, all banking transactions that occurred prior to March 23, 1983, were barred by the five-year statute of limitations. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 205.) Because we have determined that defendants’ actions constituted one ongoing transaction, we believe the statute of limitations did not commence running until the last of Raymond E. Field’s pension checks was cashed by Wasson. Plaintiff, therefore, filed his complaint well within the five-year statute of limitations, and none of it should be barred. Accordingly, the trial court erred in granting partial summary judgments for defendants.

IV

Because of our determination as to certified questions (1) and (3), we need not answer the second certified question. When it becomes apparent that an opinion on a question of law cannot affect the result as to the parties or controversy in the case before it, the court should not resolve the question merely for the sake of setting a precedent to govern subsequent cases. (Bluthardt v. Breslin (1979), 74 Ill. 2d 246, 251, 384 N.E.2d 1309, 1311.) Here, it does not matter when the alleged wrong was discovered by plaintiff because we do not believe there is a statute of limitations problem. We therefore decline to answer certified question number (2).

For the foregoing reasons, the order of the circuit court of Saline County granting partial summary judgments for defendants is reversed, and the cause is remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

CHAPMAN, P.J., and RARICK, J., concur.


author: PRESIDING JUSTICE CHAPMAN

text:
    ROBERT T. MANK, Plaintiff-Appellee, v. WEST AMERICAN INSURANCE COMPANY, Defendant-Appellant (Devin L. Sims, Defendant).
    Fifth District
    No. 5—92—0607
    Opinion filed September 7, 1993.

      Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Scott 0. Reed, of counsel), for appellant.
    Brad L. Badgley, of Heiligenstein & Badgley, P.C., of Belleveille, for appellee.
   PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiff, Robert T. Mank, instituted a declaratory judgment action seeking a determination that the defendant, West American Insurance Company, had a duty to defend and indemnify Devin Sims based upon a business automobile liability insurance policy issued to Sims’ father’s business, Jack Waters Plumbing, Inc. The parties filed cross-motions for summary judgment. On June 17, 1992, the court granted the plaintiff’s motion for summary judgment and found that the Toyota Tercel driven by Devin Sims at the time of the collision with the plaintiff was covered by the West American insurance policy issued to Jack Waters Plumbing, Inc.

At issue is whether an endorsement in the policy which limits coverage to vehicles listed in a “schedule of covered autos” is ambiguous if the only schedule attached to the policy is one entitled “schedule of equipment.” The trial court found that the policy was ambiguous and therefore construed the insurance contract against the insurer and in favor of coverage. The defendant, West American Insurance Company, appeals from the circuit court’s judgment. We reverse.

The facts are undisputed. On October 31, 1989, the plaintiff, Robert T. Hank, was involved in a collision with defendant, Devin L. Sims. Sims was driving a 1989 Toyota Tercel, and its title was issued in the names of both Devin Sims and his father, Benjamin Clark Sims.

Prior to the accident, defendant West American Insurance Company had issued a business automobile liability insurance policy to Jack Waters Plumbing, Inc., which was co-owned by Devin Sims’ father, Benjamin, and Jack Waters.

The policy contained an endorsement on a form labelled “Form 5912,” which provided:

“THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
AUTOS NOT COVERED
In consideration of the premium paid, it is understood and agreed coverage will not apply to an auto owned, leased, acquired, or held under a contract of sale prior to the effective date of the policy unless the auto is described in the schedule of covered autos.” (Emphasis added.)

The policy contained only one listing of automobiles, which was on a document entitled “schedule of equipment.” Thirteen automobiles were listed on this schedule, but the 1989 Toyota Tercel owned by Devin Sims and Benjamin Clark Sims was not listed.

On appeal, West American Insurance Company contends (1) that the court erred in finding that the use of the term “schedule of covered autos” in the exclusion endorsement rendered the policy ambiguous, (2) that the language of an exclusion controls language found in the remainder of the insurance policy, and (3) that if the policy was properly found, to be ambiguous, the trial court erred in deciding, contrary to evidence, that the insured did not intend to cover personal vehicles of its co-owners omitted from the schedule.

The interpretation of an insurance policy is a question of law (Murphy v. State Farm Mutual Automobile Insurance Co. (1992), 234 Ill. App. 3d 222, 599 N.E.2d 446; Burnett v. Safeco Insurance Co. (1992), 227 Ill. App. 3d 167, 590 N.E.2d 1032), and this court may examine the issue of interpretation independently of the trial court’s finding. Landmark Trust Co. v. Aitken (1992), 224 Ill. App. 3d 843, 587 N.E.2d 1076.

The rules governing the interpretation of insurance policies require unambiguous policies to be enforced as written. (Murphy v. State Farm Mutual Automobile Insurance Co. (1992), 234 Ill. App. 3d 222, 599 N.E.2d 446.) No extrinsic evidence of the parties’ intent need be considered where the contract is determined to be unambiguous. (P.A. Bergner & Co. v. Lloyds Jewelers, Inc. (1986), 112 Ill. 2d 196, 492 N.E.2d 1288.) However, if a provision of the policy is ambiguous, it should be construed against the insurer and in favor of coverage. State Security Insurance Co. v. Burgos (1991), 145 Ill. 2d 423, 583 N.E.2d 547; Murphy v. State Farm Mutual Automobile Insurance Co. (1992), 234 Ill. App. 3d 222, 599 N.E.2d 446.

An ambiguity is present where a provision in the insurance contract is susceptible of more than one reasonable interpretation. State Security Insurance Co. v. Burgos (1991), 145 Ill. 2d 423, 583 N.E.2d 547; Murphy v. State Farm Mutual Automobile Insurance Co. (1992), 234 Ill. App. 3d 222, 599 N.E.2d 446; Flora Bank & Trust v. Czyzewski (1991), 222 Ill. App. 3d 382, 583 N.E.2d 720.

Applying these principles to this policy, we conclude that the trial court’s finding of ambiguity was erroneous. The endorsement’s reference to a “schedule of covered autos” was not ambiguous; it is only susceptible of one reasonable interpretation since there exists only one schedule of vehicles in the insurance contract. Had the policy contained more than one schedule of vehicles, none of which was entitled “schedule of covered autos,” the endorsement’s reference to a “schedule of covered autos” would be susceptible of more than one interpretation. Here, however, the insurance policy contained only one schedule. Thus, there was no room for confusion.

The second point raised by the insurer is that language in an exclusionary endorsement controls language in the remainder of the policy. The plaintiff contends that the policy’s declarations page designates the auto liability coverage with “covered auto symbol 01,” which is defined in the policy as covering “any auto.” This designation appears to be in conflict with the exclusion in the endorsement. This court has previously held that an insurance policy and its endorsements must be read together to determine the meaning and effect of the insurance contract. (Rockford Mutual Insurance Co. v. Economy Fire & Casualty Co. (1991), 217 Ill. App. 3d 181, 576 N.E.2d 1141.) If there is a conflict between the policy and an endorsement, the endorsement will control. (Rockford Mutual Insurance Co. v. Economy Fire & Casualty Co. (1991), 217 Ill. App. 3d 181, 576 N.E.2d 1141; G.E. Mathis Co. v. Centennial Insurance Co. (1980), 80 Ill. App. 3d 610, 400 N.E.2d 621.) Jack Waters, the president of Jack Waters Plumbing, Inc., testified that all scheduled vehicles were used for business purposes. The car driven by Devin Sims was his personal car and had never been used in the business of Jack Waters Plumbing, Inc. Jack Waters listed only business vehicles on the schedule of equipment, and he excluded from the schedule the Toyota Tercel and all other personal automobiles of employees that were not used for business purposes. Waters never paid a premium for insurance coverage for the Toyota Tercel. These acts indicate that the insured understood the insurance agreement and did not intend for the Toyota to be covered under the policy.

Furthermore, the exclusion endorsement warned the insured that “THIS ENDORSEMENT CHANGES THE POLICY” and advised the policyholder to read the endorsement carefully. We conclude that Jack Waters obviously understood the warning since his description of the listing on the schedule is consistent with the language of the endorsement. Therefore, the endorsement controls the language of the insurance policy and excludes all coverage of any automobiles not described in the schedule of vehicles, despite the “any auto” coverage designation on the face sheet of the policy.

In light of our conclusions that use of the term “schedule of covered autos” in the exclusion endorsement was unambiguous and that the endorsement controls, we need not discuss the third issue raised by the appellant.

In short, the business automobile liability insurance policy issued to Jack Waters Plumbing, Inc., by West American Insurance Company should have been construed against coverage of the 1989 Toyota Tercel driven by Devin Sims. Form 5912 unambiguously excludes from coverage any automobile owned by the named insureds that was absent from the schedule. This exclusion controls the remainder of the insurance contract. Therefore, the trial court erred in granting the plaintiff summary judgment.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is reversed. Rather than remand this case, we enter summary judgment for defendant and against plaintiff under the authority granted this court by Supreme Court Rule 366 (134 Ill. 2d R. 366).

Reversed; judgment entered.

LEWIS and HAAG, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL LOFTON, Defendant-Appellant.
    Fifth District
    No. 5—91—0395
    Opinion filed August 6, 1993.

      Robert Agostinelli and Joseph N. Ehmann, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Rebecca Sanders, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Michael Lofton, was convicted of aggravated battery and armed violence in a jury trial in October 1983. The trial court entered judgment on the aggravated battery conviction and sentenced defendant to a term of 10 years’ imprisonment. The trial court concluded that it could not enter a judgment for the armed violence conviction because it would have constituted improper double enhancement. Defendant appealed the conviction, and the State filed a motion in our supreme court requesting the court to issue a supervisory order. The supreme court granted the State’s motion and directed this court to dismiss defendant’s direct appeal of his conviction. The court further ordered that the cause be remanded so the trial court could enter a judgment on the armed violence conviction and sentence defendant for that offense. The order also directed the trial court to vacate the aggravated battery conviction on the principle of “one-act/ one-crime.” The trial court complied with the supervisory order and sentenced defendant to a 25-year term of imprisonment for the armed violence conviction. On direct appeal, this court affirmed the conviction and sentence for armed violence in a Supreme Court Rule 23 order (134 Ill. 2d R. 23) filed August 23, 1985. People v. Lofton (1985), 137 Ill. App. 3d 1169, 499 N.E.2d 183.

On May 22, 1989, defendant filed a post-conviction petition in the circuit court of St. Clair County, alleging ineffective assistance of appellate counsel. The petition stated that defendant’s appointed counsel was ineffective for failing to raise a double-enhancement issue and for failing to challenge the more severe sentence imposed on defendant for the armed violence offense. After a hearing on defendant’s petition, the trial court denied defendant’s petition for post-conviction relief. Defendant now appeals that order.

The issue we now address is whether defendant was denied his right to effective assistance of counsel when his appellate attorney failed to challenge the 25-year prison sentence. As defendant correctly states, to prevail on a claim of ineffective assistance of counsel, a defendant must establish that counsel’s representation fell below an objective standard of reasonableness and there is a reasonable probability that but for counsel’s unprofessional errors the result of the proceeding would have been different. Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Allanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.

Defendant argues that appellate counsel was ineffective because he failed to argue that section 5 — 5—4 of the Unified Code of Corrections (the Code) (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—4) prohibited a trial court from sentencing defendant to 25 years’ imprisonment for the armed violence offense. Section 5 — 5—4 states:

“§5 — 5—4. Resentences. Where a conviction or sentence has been set aside on direct review or on collateral attack, the court shall not impose a new sentence for the same offense or for a different offense based on the same conduct which is more severe than the prior sentence less the portion of the prior sentence previously satisfied unless the more severe sentence is based upon conduct on the part of the defendant occurring after the original sentencing.” Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—4.

Defendant failed to raise the argument in his petition for post-conviction relief, thus providing the State with a credible argument that defendant waived the issue on appeal. We will, however, address the matter on its merits.

Defendant argues that the State’s motion for a supervisory order by the supreme court and the supreme court’s issuance of that order constituted a collateral attack on defendant’s sentence. Defendant further argues that because the supervisory order directed the trial court to vacate defendant’s aggravated battery conviction and 10-year prison sentence, he cannot be resentenced to the longer 25-year term of imprisonment for the armed violence offense which was based on the same conduct as the aggravated battery offense. We disagree. The purpose of the supervisory order issued by our supreme court was to correct the trial court’s error of entering judgment and sentencing defendant on the lesser of two convictions (aggravated battery) while not entering judgment on the more serious offense of armed violence. Defendant’s aggravated battery conviction and sentence were not vacated because he should not have been convicted of that offense. They were vacated because the trial court should have entered judgment and sentenced defendant on the greater offense of armed violence which arose from the same criminal conduct as the aggravated battery offense, thus precluding conviction and sentencing for both offenses. Simply stated, the trial court knew it could enter judgment and pronounce sentence for only one of the two offenses, and it chose the incorrect one. As a result, the supreme court entered an order which effected the proper judgment of guilty of armed violence and directed the trial court to sentence defendant for that offense accordingly. The trial court’s sentence of 25 years’ imprisonment on the armed violence conviction does not constitute a resentencing as contemplated by section 5 — 5—4 of the Code.

It is well settled that counsel will not be deemed incompetent when he does not raise a meritless issue. (People v. Howard (1981), 94 Ill. App. 3d 797, 419 N.E.2d 702.) Because we have decided that section 5 — 5—4 does not apply to the facts of this case, we cannot find that appellate counsel was ineffective for failing to raise the issue on direct appeal.

For the foregoing reasons, the order of the circuit court of St. Clair County dismissing defendant’s petition for post-conviction relief is affirmed.

Affirmed.

CHAPMAN, P.J., and LEWIS, J., concur.


author: JUSTICE LEWIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT TODD, Defendant-Appellant.
    Fifth District
    No. 5—92—0430
    Opinion filed September 10, 1993.

      Daniel M. Kirwan and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Terry M. Green, State’s Attorney, of Benton (Norbert J. Goetten, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LEWIS

delivered the opinion of the court:

Defendant, Robert Todd, was charged with two counts of residential burglary. The trial court denied defendant’s motion to suppress evidence, and he was convicted of both offenses at a stipulated bench trial. Defendant was sentenced to concurrent prison terms of 15 and 22 years, respectively, on each count, both terms to run consecutively to a term of imprisonment imposed in a related Franklin County case. (People v. Todd, No. 5 — 92—0407, under separate appeal in this court.) On appeal, defendant raises issues regarding the denial of his motion to suppress evidence and whether the trial court considered an improper factor in sentencing. The State argues that defendant has waived both issues, due to his failure to file either a post-trial motion or a motion to reduce his sentence. We do not find that defendant has waived either issue, under the facts of this case, and we affirm the trial court for the reasons stated below.

On September 22, 1991, at approximately 10 a.m., Benton police officer Melvin Dixon was on patrol in his squad car at the Benton Community Park. The park was open to the public at this time. Dixon noticed a car parked in a public parking lot but did not see anyone in the car at first. The car did not have license plates but did have a registration sticker. After running a check on the registration, Dixon learned that the car was registered to defendant, whom he knew to be a convicted felon. When Dixon approached defendant’s vehicle and looked in the passenger-side window, he observed defendant sitting in the driver’s seat with a paper for rolling coins in his hands and a cup of change between his legs. On the front floorboard of the car, he observed another plastic cup with change and a box containing several knives, watches, and assorted jewelry. Defendant’s eyes were closed, so Dixon could not tell if defendant was sleeping, unconscious, or dead.

Dixon testified at the hearing on defendant’s motion to suppress evidence that after he saw the jewelry, change, and knives, he assumed that defendant may have committed a crime, such as burglary or theft, especially since he knew defendant to be a convicted felon. Dixon then called for backup. After the other officer arrived, Dixon went around to the driver’s side of defendant’s car and pounded on the top of the car to try to awaken defendant. Defendant woke up and rolled down his car window. Dixon testified that he asked defendant to step out of his car, and that defendant then exited the car on his own, without any physical assistance from either officer and without any further requests from the officers. Defendant’s testimony was essentially the same as Dixon’s up to this point, but defendant testified that Dixon did not request but, rather, ordered him out of the ear.

After defendant exited the vehicle, he left the car door open, so that Dixon observed in plain view on the driver’s side floorboard approximately eight or nine empty shell casings from a small caliber handgun. Defendant does not deny that the empty shell casings were in Dixon’s plain view after defendant exited the car. As soon as Dixon observed the empty shell casings, he directed defendant to move to the back of the car, for the safety of himself and the other officer. Defendant’s testimony is that the other officer bodily restrained defendant as soon as defendant exited the vehicle. Dixon then reached under the driver’s seat and found a cloth bag, which felt like it contained a handgun. Dixon unzipped the bag and found a fully loaded .38-caliber pistol inside. He then placed defendant under arrest and had defendant’s car towed to the Benton police station, where it was inventoried. Items from two residential burglaries were found in defendant’s car and also in his home after a search warrant was issued for the residence. The items seized in the inventory of the car and the later search of defendant’s home were the basis of the State’s two residential burglary charges against defendant.

The trial court denied defendant’s motion to suppress, finding that Dixon had the right to look into defendant’s car, since it was parked in a public place, a finding that defendant does not dispute. The court found that Dixon had the right to request that defendant exit his vehicle, but that defendant had the right to refuse that request. The court also found that because defendant voluntarily exited his car, Dixon was able to observe the spent shell casings in plain view. As a result, the officer then reasonably inferred that a gun might be present in the car, since shell casings are empty only after they have been fired from a gun. The court concluded that the reasonable inference of the probability of a gun in the vehicle gave Dixon the right to further search the areas of the car which were immediately accessible to defendant. The trial judge finally found that the legitimate seizure of the handgun gave Dixon probable cause to arrest defendant for the crime of possession of a weapon by a felon.

After the trial court denied defendant’s motion to suppress, defendant, who was representing himself, requested to withdraw his plea of not guilty. As the court was advising defendant of his rights when pleading guilty, the State’s Attorney interrupted the judge with the following statement:

“Judge, I hate to interrupt you while you are making advisement, but I think, as an officer of this court, and especially since I am dealing with Mr. Todd who is acting here pro se, [sic] and I think what Mr. Todd is telling this court, maybe not articulating it, is he is wishing to preserve the issue of his search.
***
I think that what Mr. Todd is asking to do at this time would be for us to stipulate to the facts so that he can preserve the issue. And rather than have this court go through with this admonishment and find out 30 days from now Mr. Todd is not wishing to actually plead guilty because that would waive his *** efforts to preserve his issue, [i]f he wants *** we will stipulate to the evidence for this court to make the various findings of fact in order that he can have this court make its decision and also preserve his issue.”

The trial judge then stated to defendant that it had not accepted defendant’s plea of guilty, and that the court would set the case down for a stipulated bench trial rather than allow defendant to enter a plea of guilty that would foreclose any review of the issue of whether the motion to suppress was improperly denied.

On May 4, 1992, the defendant and the State jointly filed a “Stipulation for Bench Trial,” the first paragraph of which read:

“It is the desire of the parties to permit the issue of the denial of defendant’s Motion to Suppress Evidence *** to be preserved for Appellate review while allowing for the orderly and timely trying of this cause.”

The stipulation then went on to outline the evidence that would be presented by the State if the case came to trial. Based upon the stipulation, the court found defendant guilty of both counts of residential burglary and scheduled the case for a sentencing hearing.

Defendant first argues that his conviction is based upon an illegal search and, therefore, the conviction must be reversed. However, we must first consider the State’s argument that defendant’s appeal should be dismissed for failure to file a post-trial motion, under the authority of People v. Johnson (1991), 214 Ill. App. 3d 1087, 574 N.E.2d 225.

In Johnson, this court dismissed an appeal for failure to file a post-trial motion, which is mandatory to preserve issues for appeal under section 116 — 1(b) of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1991, ch. 38, par. 116 — 1(b); People v. Johnson (1991), 214 Ill. App. 3d 1087, 574 N.E.2d 225.) Further, a written post-trial motion is mandatory to preserve issues for appeal after a bench trial as well as a jury trial. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The purpose of a post-trial motion is to alert the trial court to trial errors, so that a new trial may be granted, if warranted, without the necessity of an appeal. The post-trial motion also limits the issues reviewable on appeal, which otherwise would be open-ended and unduly burdensome. People v. Johnson (1991), 214 Ill. App. 3d 1087, 574 N.E.2d 225.

However, there are exceptions to the requirement of a written post-trial motion. One exception, which we find applicable to this case, is where a defendant makes an oral motion for a new trial, or some statement that can reasonably be construed as an oral motion for new trial, and the State does not object to the motion for not being in writing. (Enoch, 122 Ill. 2d at 188, 522 N.E.2d at 1131.) The basis of the exception for oral motions lies in the concept of waiver; the State is found to have waived the requirement that the post-trial motion be in writing if it does not object to an oral request for a new trial. People v. Flynn (1956), 8 Ill. 2d 116, 118-20, 133 N.E.2d 257, 258.

Although the facts of the case sub judice are somewhat different, we believe that the same reasoning applies. Here, the State initially brought to the court’s attention the fact that a guilty plea would destroy defendant’s right to appeal the denial of his motion to suppress. In order that the issue of the motion to suppress be preserved for review, the State and defendant jointly entered into a stipulation for bench trial, again stating that both parties desired that the issue of the denial of the motion to suppress be preserved for review. The only basis upon which we could possibly find that defendant has waived his right to appeal this issue is that the parties intended only that defendant not lose his right to file a post-trial motion, which continued to be a necessary prerequisite to preserve his appeal on this issue, even though the language of the stipulation did not indicate any such requirement. However, such a finding would require this court to ignore the plain language of the statements made by the State’s Attorney at the close of the hearing on the motion to suppress, as well as the clear words of the stipulation itself. We decline to give the words any meaning beyond their common, ordinary meaning. We find that the State, by entering into the stipulation for bench trial, waived the requirement that defendant file a written motion for new trial. Rather, the State agreed to a procedure whereby the stipulation itself served as a written post-trial motion with no requirement for further hearings by the trial court. This finding is supported by the trial court’s acceptance of the stipulation and the following statements by the trial judge after he sentenced defendant:

“You have the right to take an appeal from this decision, not only the sentence that I have imposed, but the finding of guilt after the stipulated bench trial, and any pre-trial motions that you are unhappy with.” (Emphasis added.)

The court then went on to advise defendant about the requirement of filing a notice of appeal in order to have the case reviewed by the appellate court. By the judge’s statements, it is clear that he did not believe that a post-trial motion was necessary to preserve any issue regarding the motion to suppress, since more than 30 days had already passed since the entry of the judgment of conviction, so that on the date of the sentencing hearing, the time for filing a post-trial motion was already passed. (Ill. Rev. Stat. 1991, ch. 38, par. 116 — 1(b).) The State did not object to the judge’s statement that defendant had the right to appeal any pretrial motions, and as a result, the State has waived any requirement that defendant file a written post-trial motion.

We now consider the merits of defendant’s argument that the officer did not have probable cause to search defendant’s car. Defendant correctly states that the issue is whether the observation of spent shell casings on the driver’s side floorboard would have led a reasonably prudent officer to believe that a gun or other evidence of a crime was probably in close proximity. Defendant, in essence, argues that Dixon could have assumed that the spent shell casings came from some source other than a gun located in defendant’s car. However, defendant’s argument ignores the most logical and reasonable inference to be drawn from the presence of the spent shell casings, that they came from a gun located within defendant’s immediate access in his car.

A warrantless search is justified where there is probable cause to believe that a crime has been committed, is being committed, or is about to be committed. Probable cause is determined from the knowledge and experience of the officer conducting the search. If the officer is aware of articulable, objective facts that indicate that the existence of criminal activity is more probable than not, then probable cause exists for the search. (People v. Morgan (1990), 200 Ill. App. 3d 956, 558 N.E.2d 524.) Officer Dixon was aware that defendant was a convicted felon, who was out of prison and on parole; he initially observed items in defendant’s car that could very well have been evidence of a crime, i.e., it was reasonable to infer that the jewelry, watches, and knives came from a burglary or theft; and defendant was asleep in his car at a public park. Dixon had every right, as defendant concedes, to try to awaken defendant to find out if he needed assistance or medical attention, under the officer’s general community-caretaking function. (See People v. Murray (1990), 137 Ill. 2d 382, 387, 560 N.E.2d 309, 312.) Furthermore, as the trial judge pointed out, Dixon had the right to ask defendant to get out of his car in order to determine if defendant was fit to drive. (People v. Murray (1990), 137 Ill. 2d 382, 393, 560 N.E.2d 309, 314.) Once defendant was out of the car, by his own admission, he left the car door open, so that the shell casings were in plain view to the officer. As we have stated, the most reasonable conclusion the officer could arrive at after viewing the spent shell casings was that defendant was carrying a gun in his car. Because Dixon reasonably believed that defendant was in the process of committing the crime of possession of a weapon by a felon, and because he also reasonably believed that the car might contain evidence of other crimes, such as theft or burglary, he thereby had probable cause to search the areas of defendant’s car which were immediately accessible to him.

Furthermore, the fact that defendant’s testimony at the hearing on the motion to suppress contradicted the officer’s testimony is not controlling. Questions of fact, such as the manner in which defendant was requested or ordered to exit the vehicle and whether unnecessary force was used against defendant, are to be decided by the trial court (People v. Murray (1990), 137 Ill. 2d 382, 560 N.E.2d 309), whose decision is not to be disturbed unless clearly erroneous. (People v. Clark (1982), 92 Ill. 2d 96, 440 N.E.2d 869.) The trial court in this case resolved the issues of credibility in favor of the officer, and we do not find that decision clearly erroneous.

We next consider the State’s argument that the defendant is precluded from raising sentencing errors in this appeal, since he did not file a motion to reduce his sentence. The State cites People v. Macke (1992), 224 Ill. App. 3d 815, 587 N.E.2d 1113, and People v. Lewis (1992), 235 Ill. App. 3d 1003, 602 N.E.2d 492, appeal allowed (1993), 148 Ill. 2d 649, 610 N.E.2d 1271, for this proposition. Both Macke and Lewis hold that where a defendant seeks to appeal only his sentence, he is required to first file a motion to reduce sentence with the trial court under section 5 — 8—1(c) of the Unified Code of Corrections. (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—1(c); People v. Lewis (1992), 235 Ill. App. 3d 1003, 602 N.E.2d 492; People v. Macke (1992), 224 Ill. App. 3d 815, 587 N.E.2d 1113.) If no motion to reduce sentence is filed and only sentencing issues are raised, then all sentencing issues are waived before the appellate court. (People v. Lewis (1992), 235 Ill. App. 3d 1003, 602 N.E.2d 492; People v. Macke (1992), 224 Ill. App. 3d 815, 587 N.E.2d 1113.) It is clear, however, from the language of both cases, that their authority is limited to situations in which a defendant does not appeal any issue other than sentencing. People v. Lewis (1992), 235 Ill. App. 3d 1003, 602 N.E.2d 492; People v. Macke (1992), 224 Ill. App. 3d 815, 587 N.E.2d 1113.

Since we have already determined that the issue of the denial of defendant’s motion to suppress is properly before this court, defendant has not waived review of sentencing issues. In the case at bar, the sentencing error complained of is that the trial court considered an improper factor in sentencing. Another hearing to reconsider the factors used in determining sentence would not promote justice. Rather, where other issues are properly before the court of review, sentencing issues are not waived for failure to file a motion to reduce sentence. (See People v. Turner (1992), 233 Ill. App. 3d 449, 599 N.E.2d 104.) Additionally, we note that the Lewis case is currently under appeal by the Illinois Supreme Court, and therefore, any further resolution of the question of whether a motion to reduce sentence under section 5— 8 — 1(c) is mandatory, and the exact parameters of when and how motions to reduce sentence are to be filed must be left to the supreme court of Illinois. Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—1(c); People v. Lewis (1992), 235 Ill. App. 3d 1003, 602 N.E.2d 492, appeal allowed (1993), 148 Ill. 2d 649, 610 N.E.2d 1271.

On the merits of the issue, defendant argues that the trial judge improperly considered the threat of harm as an aggravating factor, and that such consideration was improper because that factor is inherent in the offense of residential burglary. We disagree that the trial court relied on an improper factor in sentencing. Our review of the trial judge’s findings in sentencing indicate that he relied most heavily on the factors of defendant’s lengthy criminal history and defendant’s lack of capacity for rehabilitation and that a lengthy sentence was necessary to deter others. Although the court did mention that it considered the threat of harm presented by defendant’s conduct, the record does not demonstrate that consideration of this factor had any real bearing on the length of sentence imposed.

Furthermore, while the court should not rely to a great degree on an aggravating factor that is inherent in the offense (People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906), the court may consider the degree of harm caused or threatened by defendant’s conduct, even if the threat of harm is inherent in the offense, as it is in residential burglary. (People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138.) Our review of the record does not indicate that the trial judge relied on improper factors in sentencing defendant. Therefore, there is no need for us to determine the weight the judge gave to each sentencing factor in this case. See People v. Pollard (1986), 149 Ill. App. 3d 434, 500 N.E.2d 971.

For all of the reasons stated, we affirm the judgment of the trial court.

Affirmed.'

MAAG and GOLDENHERSH, JJ., concur.