author: JUSTICE LUND

text:
    DIANA LYNN FLETCHER, n/k/a Diana Lynn Watson, Plaintiff-Appellee, v. EDWARD FRANK FLETCHER, Defendant (Jack C. Vieley, Petitioner-Appellant).
    Fourth District
    No. 4—91—0602
    Opinion filed April 15, 1992.
    Jack C. Vieley, of Peoria, appellant pro se.

    No brief filed for appellee.
   JUSTICE LUND

delivered the opinion of the court:

This is an appeal from orders of the circuit court of Woodford County insofar as it refused to enforce a one-third contingent-fee agreement in proceedings on a child support arrearage based on a 1976 dissolution judgment.

While appellee has not filed a brief, we find the record is simple and the claimed error can be decided without such assistance. See First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495.

We conclude that (1) contingent-fee agreements relating to the collection of back child support and back maintenance are enforceable; (2) the agreements must be in writing; (3) the attorney must seek fees under the provisions of section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 508(b)), if grounds for such action appear to exist, which are to be used to offset part of the contingent fee; and (4) the written fee agreement must be made of record in the collection proceedings.

Facts

The decree dissolving the marriage was entered on January 24, 1977, and approved an agreement requiring Edward Fletcher (Edward) to pay Diana Fletcher (Diana) $40 per week for child support for their son, Daniel, then age five. By August 1988, Edward was over $18,000 in arrears. On August 17, 1988, Diana allegedly signed a one-third contingency-fee agreement with attorney Jack Vieley to collect back child support.

On August 24, 1988, attorney Vieley filed a petition for rule to show cause on behalf of Diana, as well as related documents, stating that as of August 17, 1988, Edward was in arrears approximately $18,040 and praying that the court enter an order requiring Edward to show cause why he should not be held in contempt of court, and for reasonable attorney fees in the sum of $750. Also, on August 24, 1988, attorney Vieley filed a petition on plaintiff’s behalf to increase child support, seeking entry of an order requiring that Edward pay 20% of his net take-home pay as support for Daniel, “plus reasonable attorney’s fees and court costs for the prosecution of this matter.” In the supporting documents, the party’s son, Daniel, was stated to be age 16.

At a hearing on November 18, 1988, the parties appeared and the court noted the arrearage established through November 14, 1988, was $20,680. The court further found that no substantial change in circumstances had been established, but that plaintiff was nevertheless entitled under the statute to a current minimum of 20% of Edward’s net take-home pay. Contempt was found, but no penalty was imposed. The court stated the judgment would include the net arrearage, $200 in attorney fees and $70 costs, as well as a new weekly amount and an amount to be paid on the arrearage. Defendant was to send a letter from his employer regarding his net pay for the last two months and an affidavit on expenses. Ruling was reserved, and Edward was ordered to temporarily pay $50 per week as support.

A docket entry of December 5, 1988, shows the court received correspondence from Edward as ordered, with a portion going beyond the information required, and copies were provided to counsel. (These documents do not appear in the record on appeal.) The court found Edward’s net income to be $18,423.16 per year (his driver’s insurance not deducted) and set support to be paid at the rate of $71 per week, effective November 21, 1988, with any temporary payments in the meantime applied to this obligation. The court stated that payment on the total arrearage and fees and costs judgment “shall be” at least $20 per week, and further stated “alternate methods of recovery are not prohibited by this payment order.” The court thereupon entered payment and withholding orders.

The order for withholding signed on December 5, 1988, listed the amount of the arrearage as $20,950 — though that amount apparently also included the $200 attorney fees and $70 costs awarded per the court’s November 18, 1988, docket entry.

A docket entry of May 10, 1990, shows that Diana appeared and confirmed that she had authorized all payments received to be delivered to her son, Daniel, and to require the same in the future. The court provided that all payments since the November 17, 1989, date of Daniel’s majority should be applied to the arrearage, which the court determined to be $17,141.40 as of that date.

On September 6, 1990, attorney Vieley filed a notice of lien for legal services and court costs rendered on behalf of Diana, in the sum of one-third of all monies received, as per an alleged fee agreement purportedly dated August 17, 1988 — this notice served upon the clerk of the circuit court — and an assignment from Diana directing and assigning to the clerk of the circuit court the sum of one-third of all monies received in case No. 76 — D—146, to be paid to her attorney, Jack Vieley, for legal services rendered in the cause. The court, by docket entry of September 6, 1990, stated that the proceeds had already been assigned by Diana to her son, Daniel, and thus nothing was left to assign or be subject to a lien. The court further stated it would not enforce any percentage contingent-fee agreement on support obligations, and directed the clerk to notify Diana, Daniel, and attorney Vieley of its order.

On November 19, 1990, an assignment was filed, whereby Daniel purported to direct and assign to the circuit clerk the sum of one-third of all monies received in case No. 76 — D—146, to be paid to “my attorney, Jack C. Vieley, for legal services rendered.”

Attorney Fees in Dissolution Cases

In marriage and dissolution of marriage cases, attorney fees can be by agreement between the attorney and client or set by the court under section 508(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 508(a)). If determined under section 508(a), the fee must be reasonable in amount and necessarily incurred.

If an attorney and a client have an express contract for compensation, it will control in the absence of unconscionability or other contractual impropriety. See In re Marriage of Angiuli (1985), 134 Ill. App. 3d 417, 424, 480 N.E.2d 513, 519; 2 H. Gitlin, Gitlin on Divorce § 19.01(C)(3) (1991).

Contingent Fees

Contingent fees are not allowed in dissolution cases when contingent upon obtaining the dissolution or based upon the financial aspects of the dissolution. Rule 1.5(d)(1) of the Illinois Rules of Professional Conduct (Rules) provides in part:

“(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a dissolution of marriage or upon the amount of maintenance or support, or property settlement in lieu thereof; provided, however, that the prohibition set forth in Rule 1.5(d)(1) shall not extend to representation in matters subsequent to final judgments in such cases.” (134 Ill. 2d R. 1.5(d)(1), eff. Aug. 1, 1990.)

Prior to August 1, 1990, the applicable provision under Rule 2— 106(c)(4) of the Code of Professional Responsibility provided, in part, as follows:

“No contingent-fee agreement shall be made in respect of the procuring of a dissolution of marriage, declaration of invalidity of marriage, or legal separation, or the custody or adoption of children, or property settlement in or arising out of any of the foregoing; provided, however, that the prohibition set forth in this sentence shall not extend to representation in matters subsequent to a final judgment, such as the collection of arrearages in maintenance or child support.” (107 Ill. 2d R. 2— 106(c)(4).)

In the prosecution of dissolution actions, our courts have held contingent fees to be against public policy. In re Fisher (1958), 15 Ill. 2d 139, 153, 153 N.E.2d 832, 840; Stoller v. Onuszko (1973), 10 Ill. App. 3d 598, 599-600, 295 N.E.2d 118, 119.

In Licciardi v. Collins (1989), 180 Ill. App. 3d 1051, 1061, 536 N.E.2d 840, 847, the court stated:

“Nonetheless, we do agree with plaintiff that the public policy behind Rule 2 — 106(c)(4) is best served by prohibiting attorneys from acquiring contingent financial interests in all domestic relations cases involving the division of marital property between either spouses or former spouses. That is, we believe the public policy behind the rule so important that, as long as an attorney’s services are employed with respect to the division of marital property, the rule bars contingent fees therefor whether or not a judgment of dissolution has or has not been entered when the attorney is retained.”

In re Marriage of Wright (1982), 89 Ill. 2d 498, 434 N.E.2d 293, contains the following dictum:

“Fisher and our subsequently adopted rule precluding contingent-fee contracts in dissolution actions leave not the slightest doubt of their invalidity when so employed. We reaffirm our adherence to that policy, and would not hesitate to take appropriate action where transgression of that rule has been established.” Wright, 89 Ill. 2d at 501, 434 N.E.2d at 294.

Regardless of the position taken in the cited cases, it appears that a contingent-fee contract is not invalid if it relates to the collection of unpaid child support and maintenance. (See Zagar v. Zagar (1965), 56 Ill. App. 2d 175, 175, 205 N.E.2d 754, 754 (abstract of opinion).) This result is not in conflict with the public policy set forth in Fisher preventing the encouragement of divorce and the hindrance of reconciliation which could result if attorneys were given financial interest in property settlements. Fisher, 15 Ill. 2d at 153, 153 N.E.2d at 840.

While the phrase “such as the collection of arrearages in maintenance or child support” which was included in previous Rule 2— 106(c)(4) was not included in present Rule 1.5(d)(1), we conclude the deletion was not intended to prohibit contingent fees.

As stated, contingent fees are not prohibited by Rule 1.5(d)(1) as to legal matters which follow the final judgments in dissolution cases. The decree of dissolution, even though ordering installment payments of maintenance and/or child support, is considered final and is an appealable judgment. In re Marriage of Leopando (1983), 96 Ill. 2d 114, 119, 449 N.E.2d 137, 140; In re Marriage of Cierny (1989), 187 Ill. App. 3d 334, 342, 543 N.E.2d 201, 207; In re Marriage of Lord (1984), 125 Ill. App. 3d 1, 4, 465 N.E.2d 151, 153; 2 H. Gitlin, Gitlin on Divorce §16.01 (1991).

A contingent fee can never be implied, but must be expressly contracted between the attorney and the client. (Warner v. Basten (1969), 118 Ill. App. 2d 419, 431, 255 N.E.2d 72, 78; 4 Ill. L. & Prac. Attorneys and Counselors §131 (1971).) Rule 1.5(c) states it shall be in writing. (134 Ill. 2d R. 1.5(c).) Fees awarded under section 508 of the Act should offset part of the contingent-fee agreement.

Section 508 of the Act (Fees)

Section 508 of the Act did not, however, exist at the time of the Fisher decision and is a factor. Section 508 allows for court assessment of fees against either party, but section 508(b) provides:

“In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without cause or justification, the court shall order the party against whom the proceeding is brought to pay the costs and reasonable attorney’s fees of the prevailing party.” (Ill. Rev. Stat. 1989, ch. 40, par. 508(b).)

The preamble to the Rules contains the following statement:

“The lawyer-client relationship is one of trust and confidence. Such confidence only can be maintained if the lawyer acts competently and zealously pursues the client’s interests within the bounds of the law. ‘Zealously’ does not mean mindlessly or unfairly or oppressively. Rather, it is the duty of all lawyers to seek resolution of disputes at the least cost in time, expense and trauma to all parties and to the courts.” (134 Ill. 2d R. 1.1, Preamble, at 472.)

Rule 1.1(a) of the Rules provides in part:

“(a) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation necessary for the representation.” 134 Ill. 2d R. 1.1(a).

We conclude that competent representation of a client in support or maintenance collection proceedings requires the attorney to seek the relief afforded by section 508(b) of the Act. As previously stated in this opinion, attorney Vieley did ask for reasonable fees in the sum of $750 in the contempt proceedings and reasonable fees in the request for increase of child support payments.

While argument may be made that section 508 of the Act in effect prohibits the use of contingent-fee agreements in support and maintenance collection proceedings, we determine otherwise. The justification usually suggested for contingent fees is that such fees provide legal services to those who would not otherwise be able to hire an attorney. We agree this justification has been validated by recoveries being awarded to those who would otherwise have been deprived. The incentive of possibly receiving reasonable fees under section 508 of the Act might well be insufficient to convince attorneys to take support cases. The possible windfall of the contingent fee might be a sufficient incentive.

A contingent fee should not be condemned solely on the ground that the share being received is large, nor should it be deemed unconscionable and unfair because the case involved less difficulty and work than was believed necessary. (7 Am. Jur. 2d Attorneys at Law §255 (1980).) With the recognized national problem relating to the nonpayment of child support, public policy is best served by encouraging collection. Contingent fees might, in some cases, be the most effective tool in the collection.

This case is illustrative of those which justify contingent fees. Edward had to be found, and service of process was evidently difficult. Edward’s assets appear to be insignificant and his income relatively low. Any recovery of past child support and attorney fees will take place on an installment basis over a long period of time. There is little incentive to take such a case.

This court has found that a contempt order, as was entered herein, carries with it an implicit finding that failure to make child support payments was without cause or justification. In re Marriage of Betts (1987), 155 Ill. App. 3d 85,105, 507 N.E.2d 912, 926.

The trial court record does not contain the alleged written contingent-fee agreement. Because of the requirement that the agreement be in writing, we find that the agreement must be made a part of the record in the collection proceedings. In the present case, the trial court took the position that contingent fees were not enforceable, thus indicating the futility of offering the agreement into evidence; hence, attorney Vieley should now be allowed to introduce the agreement.

We reverse the trial court’s order finding that contingent fees are not enforceable in cases involving the collection of unpaid child support. We remand so that additional evidence of the contingent-fee agreement can be presented and an order entered consistent with the dictates of this opinion.

Reversed and remanded.

GREEN, P.J., and McCULLOUGH, J., concur.


source: Caselaw Access Project

author: JUSTICE COOK

license: Public Domain

text:
    JOHN T. CUNNINGHAM et al., Plaintiffs-Appellants, v. MILLERS GENERAL INSURANCE COMPANY, Defendant-Appellee.
    Fourth District
    No. 4—91—0576
    Opinion filed April 15, 1992.

      Howard R. Baker, Jr., of Nessler, Clark & Shay, of Decatur, for appellants.
    James T. Ferrini, Michael L. Foran, and Susan Condon, all of Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

Plaintiffs, John T. Cunningham and Cora L. Cunningham, appeal from a jury verdict entered in the circuit court of Macon County in favor of defendant, Millers General Insurance Company. Plaintiffs argue the trial court improperly allowed the jury to hear evidence of a prior fire at plaintiffs’ property. We disagree and affirm.

Plaintiffs owned and occupied a residence in Decatur, Illinois, which was insured against fire by defendant. At about 1 a.m. on March 1, 1987, after Cora Cunningham returned from working a 3:30 p.m. to 12 midnight shift, plaintiffs left to visit relatives in Chicago. A few hours later, at approximately 3:25 a.m., the Decatur fire department received a call for a fire at plaintiffs’ home. When fire fighters arrived at the scene, the fire was already very smoky and extremely hot. At that time plaintiffs were driving to Chicago. Plaintiffs spent the day in Chicago, then returned to Decatur at dawn on March 2, and discovered the fire had occurred. Several fire investigation experts independently concluded that the fire was intentionally started based on (1) the pattern of the fire, which indicated that it was set using liquid accelerants, and (2) samples from plaintiffs’ home, which confirmed the presence of kerosene and naphtha. There was no direct evidence as to who set the fire. Plaintiffs submitted a sworn proof of loss to defendant, but defendant denied the claim.

On February 9, 1988, plaintiffs filed a complaint against defendant. A jury trial was held from March 25 through March 28, 1991. At the start of the trial plaintiffs made a motion in limine to prevent defendant from introducing evidence of a prior fire at their home in 1981. After a hearing the trial court denied the motion in limine, but reserved the right to modify the ruling. During the trial, plaintiffs attempted to show that someone else could have started the 1987 fire. Plaintiffs testified about threats, including a bomb threat received before the fire, and an arson attempt on one of their vehicles. Their testimony was supported by the testimony of Terry L. Brown, fire inspector, and Rick Jones, investigator for the Decatur police department.

During the trial, defendant introduced evidence of the prior fire. On cross-examination during their case in chief, and on direct examination during their rebuttal testimony, plaintiffs testified that their home had been damaged by a fire in 1981, and that they had recovered $30,000 on their insurance based on that fire. At the time of the 1981 fire plaintiffs had also been traveling to Chicago in the early morning, after Cora worked second shift. The Decatur fire department had been called to the 1981 fire at about 2:30 a.m., not long after plaintiffs had left for Chicago. Plaintiffs testified that they often left for Chicago early in the morning after Cora worked second shift.

Defendant called Thomas Chamblin, a certified fire inspector with more than 20 years of experience. In 1981 Chamblin investigated the earlier fire and classified it as suspicious. Illustrating his testimony with photographic slides, Chamblin described the physical evidence at the scene. Chamblin testified the fire started on the floor in one of the bedrooms, and was hot and low burning, which indicated an accelerant had probably been used on the floor. Chamblin had determined that the resulting hole in the bedroom floor was the point of origin, even though it was located away from any natural source of ignition that might have caused the fire. During the 1981 fire investigation Chamblin had tested the premises for accelerants, but had not found any present. Chamblin explained that because accelerants could have been consumed by the fire or removed during fire-fighting efforts, a negative test did not prove that accelerants had not been used. On cross-examination, Chamblin indicated that in an unusual situation the burn pattern of the 1981 fire could have existed without the use of accelerants.

Relying on Wernowsky v. Economy Fire & Casualty Co. (1985), 106 Ill. 2d 49, 477 N.E.2d 231, plaintiffs argue the trial court erred in allowing testimony about the 1981 fire. In Wernowsky, plaintiffs sued to recover the proceeds of a homeowner’s insurance policy issued by defendant on plaintiffs’ home after it burned. Defendant was allowed to introduce evidence that plaintiffs had suffered three fire losses in the four years immediately prior to the fire which was the subject of the case. The trial court in Wernowsky determined that the occurrence of the prior fires should be admitted to show motive or knowledge, but decided not to allow an explanation by defendant of the circumstances surrounding the previous fires, reasoning that would be unfair to plaintiffs. The supreme court held the other fires could not be admitted without some showing that the other fires were incendiary in origin, and some evidence either direct or circumstantial that the insureds participated in them. (Wernowsky, 106 Ill. 2d at 55, 477 N.E.2d at 234.) The supreme court did not hold that evidence of prior fires could never be admitted, but only that there was insufficient foundation for admission of that evidence in the case before it. Although more foundation was laid in the present case than in Wernowsky, we need not decide whether the evidence was properly admitted here.

Defendant argues plaintiffs failed to preserve the Wernowsky issue for review because, after the court’s ruling on the motion in limine, they failed to make any objection at the time the evidence was introduced. We agree.

A motion in limine permits a party to obtain, in advance, an order excluding inadmissible evidence and prohibiting interrogation concerning such evidence. The moving party will thereby be protected from any prejudicial impact the mere asking of the questions and making of the objections may have upon a jury. (Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 549, 416 N.E.2d 268, 271.) A disadvantage of a motion in limine is that a court rules on it in a vacuum, before hearing the full evidence at trial that may justify admission or require exclusion. Trial judges should be cautious in entering broad in limine orders, attempt to anticipate proper evidence that might be excluded by the order (People v. Williams (1978), 60 Ill. App. 3d 529, 535, 377 N.E.2d 367, 371 (Green, P.J., dissenting)), and make the order clear and precise so that all parties concerned have an accurate understanding of its limitations. (Reidelberger, 83 Ill. 2d at 550, 416 N.E.2d at 271; Lundell v. Citrano (1984), 129 Ill. App. 3d 390, 395, 472 N.E.2d 541, 545 (order barred presentation of any diagnosis or medical opinion “ ‘other than by competent medical testimony’ ”).) An unclear order in limine is worse than no order at all; even if the court concludes the evidence is inadmissible, it has the discretion to deny the motion in limine. (Williams, 60 Ill. App. 3d at 533, 377 N.E.2d at 370.) To prevent confusion and misunderstanding during trial, both the motion in limine and the resulting order should be in writing. Lundell, 129 Ill. App. 3d at 395, 472 N.E.2d at 545.

Orders in limine are potentially dangerous, but such orders are interlocutory and remain subject to reconsideration by the court throughout the trial. (Romanek-Golub & Co. v. Anvan Hotel Corp. (1988), 168 Ill. App. 3d 1031, 1040, 522 N.E.2d 1341, 1347; Ely v. National Super Markets, Inc. (1986), 149 Ill. App. 3d 752, 760, 500 N.E.2d 120, 126.) A court should make whatever correction or interpretation of an in limine order is necessary during the trial. (Crawford County State Bank v. Grady (1987), 161 Ill. App. 3d 332, 341, 514 N.E.2d 532, 538.) Where the evidence could be prejudicial, an order granting a motion in limine may be safer than an order denying it; the evidence will then be kept out until it is clear it should be admitted. Sometimes it may be appropriate not to allow comment on questionable evidence during opening statements. Still, a court should carefully analyze a motion in limine when the motion is first presented. Changed rulings destroy the desired certainty and clarity of an in limine order. It is a mistake for a court to continually shift its ruling as different evidence is presented and never reach a firm decision. (Reidelberger, 83 Ill. 2d at 551-52, 416 N.E.2d at 272.) Once a motion in limine is granted, the movant must be vigilant and object when evidence is presented which may violate the order. The purpose of an in limine order is to exclude inadmissible evidence, not to create a trap which results in a new trial if the court in retrospect determines the rule was violated. Reidelberger, 83 Ill. 2d at 553, 416 N.E.2d at 272.

When a motion in limine is denied, the unsuccessful movant is left with the procedure of specifically objecting to the evidence when it is offered at trial. (Department of Public Works & Buildings v. Roehrig (1976), 45 Ill. App. 3d 189, 195, 359 N.E.2d 752, 759; People v. Van Riper (1970), 127 Ill. App. 2d 394, 398, 262 N.E.2d 141, 144; Williams, 60 Ill. App. 3d at 533, 377 N.E.2d at 370.) The rule is well established that the denial of a motion in limine does not preserve an objection to disputed evidence later introduced at trial. The moving party remains obligated to contemporaneously object when the evidence is offered or the objection will be waived. Gonzalez v. Prestress Engineering Corp. (1990), 194 Ill. App. 3d 819, 825, 551 N.E.2d 793, 798; Romanek-Golub & Co., 168 Ill. App. 3d at 1040, 522 N.E.2d at 1347; People v. Armstrong (1983), 111 Ill. App. 3d 471, 478-79, 444 N.E.2d 276, 281.

During the trial, no objection was raised when plaintiffs were cross-examined about the 1981 fire, nor when Chamblin testified about plaintiffs’ activities preceding that fire and the fire’s cause and origin. Plaintiffs themselves cross-examined Chamblin concerning the 1981 fire and testified about the fire on direct examination during their case in rebuttal. At the very close of the evidence, plaintiffs objected to the admission of four slides of the 1981 fire scene which had been shown to the jury during Chamblin’s testimony:

“DEFENDANT’S ATTORNEY: Also admission of the slides, 19 through 23.
PLAINTIFFS’ ATTORNEY: No objection.
THE COURT: They are admitted.
PLAINTIFFS’ ATTORNEY: For the purpose of the record, could I have an objection to that to preserve my motion in limine.
THE COURT: Yes. Defendant’s 16.
PLAINTIFFS’ ATTORNEY: No objection.
THE COURT: Admitted. Number 17 has been admitted.”

Plaintiffs contend their objection to the admission of the slides specifically preserved the issues raised by their motion in limine. We disagree. Where a party objects to certain evidence but fails to object to similar evidence admitted by the trial court, the party waives any claim that the evidence objected to was erroneously admitted. (Gillespie v. Chrysler Motors Corp. (1990), 135 Ill. 2d 363, 374, 553 N.E.2d 291, 296; Bullard v. Barnes (1983), 112 Ill. App. 3d 384, 392, 445 N.E.2d 485, 492, affd (1984), 102 Ill. 2d 505, 468 N.E.2d 1228.) The slides were only cumulative evidence since Chamblin’s testimony independently established the cause and origin of the 1981 fire. Plaintiffs’ pro forma objection after all the evidence had been introduced did not give the trial court an opportunity to consider the issues raised by the motion in an evidentiary setting. When the objection was made, it was too late for the court to exclude the evidence. The trial court’s enigmatic answer to plaintiffs’ request to preserve the motion in limine did not absolve plaintiffs of their duty to object at the time the evidence was introduced.

The rule of waiver is a limitation on parties and not on reviewing courts. In reviewing circuit court judgments, reviewing courts may, in the furtherance of their responsibility to reach a just result, override considerations of waiver and consider a point which was either not raised or not argued by an appellant. (In re Marriage of Sutton (1990), 136 Ill. 2d 441, 446, 557 N.E.2d 869, 871; Welch v. Johnson (1992), 147 Ill. 2d 40, 48.) The plain error doctrine is recognized in civil as well as criminal cases, although it finds greater application in criminal cases. (Belfield v. Coop (1956), 8 Ill. 2d 293, 313, 134 N.E.2d 249, 259; Gillespie, 135 Ill. 2d at 375, 553 N.E.2d at 297.) However, the waiver doctrine is strictly applied unless the prejudicial error was so egregious that it deprived the complaining party of a fair trial and substantially impaired the integrity of the judicial process. (Gillespie, 135 Ill. 2d at 377, 553 N.E.2d at 298.) There was no egregious error here, nor was the integrity of the judicial process impaired.

Sometimes a trial court’s ruling on a motion in limine is so definite and unconditional that the parties may treat it as controlling. (Woodward v. Mettille (1980), 81 Ill. App. 3d 168, 178, 400 N.E.2d 934, 943.) The Second District Appellate Court has declined to find a waiver where it appeared defendant failed to object based on defendant’s misinterpretation that the court’s ruling on the motion in limine conclusively admitted the evidence. (Lundberg v. Church Farm, Inc. (1986), 151 Ill. App. 3d 452, 460, 502 N.E.2d 806, 812.) In the present case the trial court specifically reserved the right to modify its ruling. It would be exceptional for a further objection not to be made after the denial of a motion in limine. No justification for applying such an exception exists in this case. The movant did not object at a time when the objection could have been acted upon by the trial court and should not be allowed to raise the issue after reflection. The issue has been waived.

Affirmed.

STEIGMANN and KNECHT, JJ., concur.


author: PRESIDING JUSTICE GREEN

text:
    BOARD OF EDUCATION OF HARRISBURG COMMUNITY UNIT SCHOOL DISTRICT No. 3, Petitioner, v. THE ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4—91—0555
    Opinion filed April 15, 1992.

      John T. Taylor and Merry C. Rhoades, both of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Decatur, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Alison O’Hara, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    Wanda VanPelt, Associate General Counsel, of Edwardsville, for respondent Harrisburg Education Association.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

This case arises from action by petitioner Harrisburg Community Unit School District No. 3 (District) terminating the assignment of its teacher Anthony Holler from an extra-duty position as head boys’ basketball coach at its high school at the conclusion of the 1989-90 season. Following a three-step internal grievance procedure, the propriety of the termination of the extracurricular assignment was submitted to arbitration pursuant to the terms of a collective-bargaining agreement between the District and the exclusive representative of the educational employees of the District, respondent Harrisburg Education Association, IEA-NEA (Association). The arbitrator ruled the District had violated the collective-bargaining agreement by failing to afford Holler the “due process” to which he was entitled by that agreement. The arbitrator ordered the District to restore Holler to the extracurricular coaching position with back pay and reimbursement of other benefits which may have been lost by the dismissal from that extra-duty assignment.

The appropriate method for an educational employer to contest, in good faith, the validity of an arbitration award made under the provisions of a collective-bargaining agreement is to refuse to abide by the award, thereby subjecting itself to unfair labor charges under section 14(a)(8) and derivatively section 14(a)(1) of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1989, ch. 48, pars. 1714(a)(1), (a)(8)) so that the validity of the award may be determined. (Board of Education of Community School District No. 1 v. Compton (1988), 123 Ill. 2d 216, 526 N.E.2d 149.) Section 14(a)(8) of the Act makes the refusal of an employer to abide by a binding arbitration award an unfair labor practice, and section 14(a)(1) of the Act makes any conduct by an employer “[interfering, restraining or coercing employees in the exercise of the rights guaranteed under [the] Act” an unfair labor practice. (Ill. Rev. Stat. 1989, ch. 48, par. 1714(a)(1).) The District chose to contest the arbitration award in this manner and refused to abide by the award. On September 14, 1990, the Association filed a complaint with the Illinois Educational Labor Relations Board (IELRB) charging the District with violations of those provisions.

Following a hearing before an IELRB hearing officer, that officer issued a recommended decision and order which found violations by the District of section 14(a)(8) and, derivatively, section 14(a)(1) of the Act. That officer found the arbitrator’s award valid and recommended inter alia that the District be ordered to reinstate Holler to his extracurricular coaching assignment with back pay and compensation for benefits of which he might have been deprived. {Harrisburg Community Unit School District No. 3, 7 Pub. Employee Rep. (Ill.) par. 1037, No. 91 — C .1 — 001?—S (Illinois Educational Labor Relations Board, hearing officer’s recommended decision and order, Mar. 7, 1991).) On July 8, 1991, the IELRB entered an opinion and order affirming the hearing officer’s conclusions and adopting his recommended order and rationale as supplemented by its opinion. Harrisburg Community Unit School District No. 3, 7 Pub. Employee Rep. (Ill.) par. 1084, No. 91 — CA—0013—S (Illinois Educational Labor Relations Board, July 8, 1991) (hereinafter 7 Pub. Employee Rep. (Ill.) par. 1084).

The District has taken administrative review to this court. (Ill. Rev. Stat. 1989, ch. 48, par. 1716(c).) It phrases its contentions under headings asserting (1) it did not commit an unfair labor practice, and (2) the arbitrator exceeded his authority in making the award. Under the first point, the District maintains the arbitrator’s decision violates public policy and that Holler was in fact afforded the “due process” to which he was entitled under the collective-bargaining agreement.

As we are passing upon the propriety of an administrative agency’s ruling in regard to the validity of an arbitration award, two standards of review are involved. The parties do not dispute that “ ‘[bjecause the parties have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the arbitrator’s view of the facts and of the meaning of the contract that they have agreed to accept.’ ” (American Federation of State, County & Municipal Employees v. State (1988), 124 Ill. 2d 246, 255, 529 N.E.2d 534, 538 (hereinafter AFSCME), quoting United Paperworkers International Union v. Misco, Inc. (1987), 484 U.S. 29, 37-38, 98 L. Ed. 2d 286, 299, 108 S. Ct. 364, 370.) However, an exception to that rule occurs if the award is, as contended by the District, contrary to public policy. AFSCME, 124 Ill. 2d at 259, 529 N.E.2d at 540.

Another exception to the deference given the award occurs if the arbitrator goes beyond the terms of the agreement “ ‘to dispense his own brand of industrial justice.’ ” AFSCME, 124 Ill. 2d at 254-55, 529 N.E.2d at 538, quoting United Steelworkers v. Enterprise Wheel & Car Corp. (1960), 363 U.S. 593, 597, 4 L. Ed. 2d 1424, 1428, 80 S. Ct. 1358, 1361.

As the facts before the IELRB are not in dispute, the applicable standard of review of the IELRB decision is straightforward, i.e., we give considerable deference to its expertise in matters of labor law as related to educational institutions (Decatur Board of Education, District No. 61 v. Illinois Educational Labor Relations Board (1989), 180 Ill. App. 3d 770, 775, 536 N.E.2d 743, 746), but will not follow its decision if, after giving that deference, we deem the decision erroneous as a matter of law. Hardin County Education Association v. Illinois Educational Labor Relations Board (1988), 174 Ill. App. 3d 168, 174, 528 N.E.2d 737, 740.

The parties agree the collective-bargaining agreement states in section 6.4:

“Due process under the Agreement shall be accorded each teacher, administrator, and the Board, and the rights of each teacher, administrator, and the Board of Education shall be honored as provided for in this Agreement.”

The application of section 6.4 is at the heart of this dispute. The arbitrator found that the District violated this provision in not giving adequate opportunity to Holler to appear before its governing board (Board) before terminating his extracurricular assignment. The IELRB held that the arbitrator was properly proceeding within his power in making this determination, and we agree. 7 Pub. Employee Rep. (Ill.) par. 1084, at IX — 318.

The arbitrator also mentioned in his written decision that arbitrators often “read into” collective-bargaining agreements language requiring “just cause” for dismissal of employees. In that portion of the decision explaining the reasons for the remedy imposed, the arbitrator stated that to merely grant Holler a proper hearing before the District’s governing board, “allowing his removal [from the extra-duty assignment] to stand” would have the effect of assuming “that just cause for his dismissal [from the extra-duty assignment] exists.” The IELRB noted that the record showed that in negotiating the collective-bargaining agreement, the Association had requested a “just cause” provision for discipline or discharge of teachers and that provision had not been agreed to by the District. We emphasize, as did the arbitrator, that no such language was in the contract. The only provision which limited the District’s managerial rights and rights to make involuntary changes in regard to extracurricular assignments was the due process provision.

The IELRB opinion and order considered the first statement by the arbitrator concerning “just cause” as obiter dictum. We agree. However, that opinion and order also concluded that the statement concerning “just cause” in regard to remedy was just “in passing” and harmless. (7 Pub. Employee Rep. (Ill.) par. 1084, at IX — 319.) For reasons we will explain, we disagree with this interpretation. We conclude that the arbitrator formulated a remedy on the basis that “just cause” would be necessary to terminate Holler from his extra-duty coaching position. That requirement had specifically been rejected in the bargaining. Accordingly, we uphold the requirement that a “due process” hearing must be granted Holler, but for reasons we will explain we hold that the arbitrator must redetermine the remedy without consideration of “just cause” being a contractual requirement for termination from extracurricular assignments.

The parties do not dispute that we are bound by the following statement of facts found by the arbitrator: (1) Holler had been a teacher at Harrisburg for nine years and a high school head basketball coach for eight of those years; (2) the extra-duty coaching position carried an extra-duty pay of 15% of Holler’s base salary, for a total of $2,500 to $3,000 per year; (3) sometime during the first week of January 1990, athletic director Jim Collins met with Holler at the request of Superintendent Randolph Tinder to tell Holler of four “concerns” the Board had regarding Holler’s extra-duty coaching activities; (4) Tinder learned of these concerns at a special meeting of the Board in December; (5) at that meeting, the Board had discussed the possibility of dismissing Holler from his extra-duty coaching position in mid-season, but Tinder advised against it.

Similarly before us are the arbitrator’s findings that (1) Tinder assured Holler there would be no mid-season dismissal when the two met in January; (2) at that January meeting, Tinder asked Holler to submit a letter of resignation from the extracurricular assignment, but Holler refused, saying the Board would have to fire him; (3) early in March, Tinder told Holler his name had appeared on the Board’s executive agenda for that month, and the Board would probably dismiss him from his extra-duty coaching position; (4) Tinder told Holler he could attend the meeting if he wished; (5) Holler did not attend the meeting nor did he ask to meet with the Board; and (6) Holler was dismissed as head basketball coach at the Board’s March meeting, and no reasons were given.

The arbitrator found the four “concerns” relayed to Holler by Collins in January were as follows: (1) comments had reached the Board that a freshman coach had used profanity in the presence of students; (2) a coach had used a stopwatch to keep track of the number of minutes each player was in the game; (3) former varsity players had been brought in to practice against the varsity, thereby cutting the practice time of the junior varsity; and (4) “words” had been exchanged between a Harrisburg player and a Benton player and then between the respective coaches.

The major thrust of the District’s position in regard to the question of whether it furnished Holler “due process” within the meaning of the collective-bargaining agreement is its argument that Holler had sufficient procedural protections to meet fourteenth amendment due process requirements. The District notes he had (1) oral notice of the fact that he faced dismissal from the extracurricular assignment, (2) an opportunity to present his position to his employer, and (3) an explanation of the faults which the employer had expressed as to his work. (See Cleveland Board of Education v. Loudermill (1985), 470 U.S. 532, 546, 84 L. Ed. 2d 494, 506, 105 S. Ct. 1487, 1495.) The District also notes that under the collective-bargaining agreement, no showing of cause was necessary to terminate Holler’s extra-duty coaching assignment.

The weakness in the District’s argument is that the arbitrator had the power to determine that “due process” within the meaning of the collective-bargaining agreement required a more formalized procedure than is required by the fourteenth amendment. The procedure used was very loose and informal. Although the evidence showed Tinder told Holler he could come to a Board meeting, the evidence did not indicate Tinder had said Holler would then be allowed to speak. The arbitrator’s decision as to what the District should have done in the way of affording a hearing is not entirely clear. Apparently, he ruled the District should have (1) given Holler more explicit information as to the time and place when he could be heard by the Board; (2) told him what the subject matter of the meeting would be; (3) told him of complaints which the District had against him; and (4) informed him he would have a right to speak and a right to be represented, which could be by the Association.

We do not agree with the District that the decision required it to force Holler to come to a meeting with the Board before it could discharge him. The benefits of a more formal procedure would have been somewhat limited, because the District could discharge him from the extra-duty assignment without cause. However, he was entitled to some formality in a procedure in which he might have been able to persuade the Board to retain him.

The Association and IELRB maintain the District has waived its contention that the arbitrator’s decision was void for being contrary to public policy by its failure to properly raise this point earlier. We need not decide this question, because we do not agree with the District’s argument on the point. This court has invalidated, as contrary to public policy, awards by arbitrators operating under collective-bargaining agreements when the awards set aside the discharge of employees in Board of Education of School District U-46 v. Illinois Educational Labor Relations Board (1991), 216 Ill. App. 3d 990, 576 N.E.2d 471, and Department of Central Management Services v. American Federation of State, County & Municipal Employees (1990), 197 Ill. App. 3d 503, 554 N.E.2d 759. In the former case, the employee was a bus driver shown to have driven a school bus recklessly on several occasions. In the latter case, the employees were correctional officers who had either battered prisoners or used drugs with prisoners. Nothing of that compelling nature was involved here. Rather, the stated complaints against Holler seemed quite minor.

The District agrees the aforementioned public policy cases are not analogous to the situation here, but maintains that Konicki v. Oak Brook Racquet Club, Inc. (1982), 110 Ill. App. 3d 217, 441 N.E.2d 1333, is analogous. There, an arbitrator made an award which took into consideration damages awardable for breach of a covenant of noncompetition granted by a former part owner of a racquet club upon his withdrawal from the enterprise. In an appeal from a circuit court decision reviewing the award under the Uniform Arbitration Act (Ill. Rev. Stat. 1979, ch. 10, pars. 112, 113), the appellate court held that the anticompetition covenant violated public policy, and the award was erroneous to that extent. (Konicki, 110 Ill. App. 3d at 224, 441 N.E.2d at 1338.) Here, the award arose from the collective-bargaining agreement, and that agreement was not contrary to public policy. We do not find that Konicki speaks to the issues here.

If the District’s contention of a violation of public policy is based upon a theory that the arbitrator’s determination that the “due process” provision of the collective-bargaining agreement is more expansive than the constitutional due process concepts, we simply disagree. The parties could so agree, and the arbitrator was acting within his authority in determining that was intended. The arbitrator’s decision was therefore not contrary to public policy.

As we have indicated, we do, however, agree with the District that the arbitrator exceeded his authority in considering the existence of a requirement of “just cause” in order for the District to discharge Holler from his extra-duty position in the face of the showing in the record that, in bargaining, the District had refused a request by the Association that teachers could not be discharged or disciplined without “just cause.” Notwithstanding this fact, after concluding that the District’s power to properly relieve Holler of his extracurricular assignment was subject to the “due process” provision of the agreement, the arbitrator’s decision then stated:

“Further, arbitrators commonly read just cause language into collective bargaining agreements even if the explicit wording is not there. Otherwise, an employer could avoid the benefits and guarantees which the agreement gives to employees by discharging without cause. Employment becomes ‘at will’ which the collective bargaining agreement seeks to avoid. (See Elkouri and Elkouri, How Arbitration Works 4th ed., p. 652, especially Cameron Iron Works 25 LA 295 (1955) cited there.)”

The above is the portion of the decision which both IELRB and this court consider obiter dictum. Our disagreement with IELRB concerns the significance of a later portion of the decision, which states:

“Remedy
Due process rights are so important that their violation entitles Mr. Holler to be restored to his coaching position. It would be insufficient to order only a hearing before the Board, allowing his removal to stand. To do so would assume that just cause for his dismissal exists and that the hearing would satisfy all due process requirements of the agreement.” (Emphasis added.)

The only reasonable interpretation we can give to the “Remedy” portion of the decision is that the arbitrator deemed merely awarding Holler a new hearing conforming with “due process” and reimbursing him for losses during the period between his discharge from the extra-duty assignment and the date of a new hearing were inadequate, because at a hearing granting Holler all the rights to which he was entitled the District might still discharge him without having “just cause” to do so. We hold that in considering this factor in the formulation of his remedy, the arbitrator went beyond the terms of the collective-bargaining agreement and violated the admonition of Enterprise Wheel and AFSCME not to go beyond the terms of the collective-bargaining agreement and “ ‘dispense his own brand of industrial justice.’ ” AFSCME, 124 Ill. 2d at 254-55, 529 N.E.2d at 538, quoting Enterprise Wheel, 363 U.S. at 597, 4 L. Ed. 2d at 1428, 80 S. Ct. at 1361.

Accordingly, we affirm the decision to the extent that it upholds the arbitrator’s determination that the District violated Holler’s contractual right of due process, but we must reverse that portion of the determination which upholds the remedy imposed. We remand to the IELRB with directions to remand to the arbitrator to determine a remedy which is not formulated upon an assumption that Holler’s extracurricular assignment may not be terminated without “just cause.” Nothing we have stated here is intended to prevent a remedy which requires the District to compensate Holler for monetary losses suffered between the time of his dismissal and the time he is afforded a hearing complying with contractual “due process” as determined by the arbitrator.

As we determine that the remedy imposed by the award was invalid as a matter of law, we reverse the determination by the IELRB that the District has engaged in unfair labor practices and the cease and desist and affirmative action portions of its decision. Upon the issuance of new remedies in a new award, the District will be under a duty to abide by that award or to initiate the same appeal process undertaken here. We hope we have spoken with sufficient clarity to all parties that further litigation will be unnecessary.

Affirmed in part; reversed in part and remanded with directions.

STEIGMANN and KNECHT, JJ., concur.


author: JUSTICE RAKOWSKI

text:
    WILLIAM A. MARTIN II, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Impact Industries, Inc., Appellants).
    Second District (Industrial Commission Division)
    No. 2—91—0822WC
    Opinion filed April 16, 1992.
    Mark C. Wiedner, of Wiedner & McAuliffe, Ltd., of Chicago, for appellant.
    James L. Donohue, of James L. Donohue, Ltd., of Rockford, for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

The employee, William A. Martin II (claimant), filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.), alleging that he sustained injuries on July 20, 1985, as a result of his employment with Impact Industries, Inc. (employer). The arbitrator denied compensation, based on the finding that claimant failed to prove that his injuries were work related. The Industrial Commission (Commission) affirmed the arbitrator’s decision denying compensation, and the claimant appealed. On administrative review, the circuit court set aside the decision of the Commission, and the employer appealed, raising the issue of whether the trial court erred in reversing the decisión of the Commission and substituting its own factual finding for that of the Commission. We reverse.

The claimant began working for the employer as a sales manager on March 4, 1985. Approximately three months later, he was informed by his superiors that his sales were inadequate, and he was told to try to become more productive. On July 19, 1985, the claimant went to the hospital emergency room complaining of chest pain of several hours duration. He also told the staff on admission that he had been having chest pain for three weeks which required the use of nitroglycerin. The claimant remained in the hospital for several hours but then signed out against medical advice. That day he reported to work for a scheduled sales meetng but then informed his superiors that he did not feel strong enough to attend the meeting. The sales meeting was rescheduled for the following day, which was a Saturday. However, the claimant stated that he felt ill while he was driving to work so he contacted the employer and informed his superiors that he was unable to attend the meeting. Shortly thereafter the employer contacted the claimant and informed him that he was fired due to his poor sales performance. At this time the claimant was asked to return the company car. According to the claimant’s testimony, the employer refused claimant’s request to keep the car until Monday and threatened to notify the police if the car was not returned that day. Although the claimant reported having severe chest pain while he was returning the car to the employer, he did not seek medical attention that day. He remained at home for the remainder of the weekend. However, two days after his termination from the employer, claimant was admitted to the hospital when his chest pain became more severe. At that time he was diagnosed as having had a myocardial infarction (heart attack).

The factors reviewed by both the Commission and the circuit court were the claimant’s history of chest pain and coronary vessel disease dating back to 1982 as well as his participation in certain behaviors, contrary to medical advice, such as smoking, drinking and failure to follow dietary recommendations. An additional factor considered was the amount of personal stress claimant was having due to his marital problems and the fact that a woman with whom he was having an affair had become pregnant. The medical evidence reviewed consisted of the records of claimant’s treating physicians, Drs. Michael Bortoli and Gerald Peterson, and the evidence depositions of Dr. Peterson and the employer’s medical expert, Dr. William Brice Buckingham.

The employer contends that the trial court erred in reversing the decision of the Commission because there was sufficient evidence in the record to support the Commission’s determination that the claimant’s injuries on July 20, 1985, were not work related. It is the function of the Commission to make a determination regarding questions of fact, witnesses’ credibility as well as the weight of their testimony, and its judgment will not be disturbed unless it is found to be erroneous. (Martin v. Industrial Comm’n (1982), 91 Ill. 2d 288, 293-94, 437 N.E.2d 650.) This determination also includes the question of whether a causal relationship exists between the claimant’s employment and his injuries. A reviewing court cannot reject or disregard permissible inferences drawn by the Commission because different or conflicting inferences may also be drawn from the same facts nor can it substitute its judgment for that of the Commission unless the Commission’s findings are against the manifest weight of the evidence. Jones v. Industrial Comm’n (1983), 93 Ill. 2d 524, 526, 445 N.E.2d 309; Health & Hospitals Governing Comm’n of Cook County Hospital v. Industrial Comm’n (1975), 62 Ill. 2d 28,-32, 338 N.E.2d 402.

The claimant had cardiac symptoms several years prior to the events at issue. In July 1982, he was treated with a coronary angioplasty for recurring chest pain. The claimant’s cardiologist, Dr. Peterson, informed him that he had a single vessel disease and that he was at risk of having a heart attack. He was also instructed to stop smoking and was given certain dietary restrictions. The claimant again sought medical treatment for chest pain on several occasions in 1984. When he saw Dr. Peterson on one of these occasions, his blood pressure and cholesterol level were elevated. The claimant acknowledged that he had not stopped smoking and he was consuming two cases of beer a week. Several diagnostic procedures were also performed which revealed the presence of progressive disease of the cardiac vessels. Dr. Peterson told the claimant that his risk of having a heart attack had increased and that it would continue to rise if he did not follow the medical guidelines he had been given regarding his smoking and diet. Despite this warning, the claimant continued to ignore these guidelines, and at the time of the injury at issue the claimant was still smoking, consuming large quantities of beer and otherwise not following medical advice. On July 19, 1985, the day before the claimed injury, the claimant went to the hospital emergency room complaining of chest pain but signed out of the hospital several hours later against medical advice.

In addition to the claimant’s preexisting cardiac condition, there were also certain personal problems which he acknowledged caused him a great amount of concern and which may have affected his medical condition. At the time of the injury at issue, the claimant was having marital problems as well as an extramarital affair, and the woman with whom he was involved was pregnant. He was also informed by his superiors that his work performance was poor and that it had to improve.

The Commission also reviewed the depositions of Dr. Peterson and Dr. Buckingham. Dr. Peterson testified that the incident in which the claimant was told that he was fired and had to return the company car while having chest pains superimposed on his preexisting cardiac condition could have precipitated claimant’s heart attack. However, Dr. Buckingham testified that it was claimant’s “relentlessly progressive, occlusive arteriosclerotic disease of the coronary vascular system” as well as the claimant’s smoking, elevated cholesterol level, and family history rather than the news that he was fired and had to return the company car that caused the heart attack. It was the function of the Commission in this case to resolve this conflicting medical testimony. O’Dette v. Industrial Comm’n (1980), 79 Ill. 2d 249, 253, 403 N.E.2d 221.

The claimant’s position is that the heart attack that he sustained on July 22, 1985, was causally related to the fact that he was suddenly terminated from his job and that his boss insisted that he return the company car and threatened to notify the police if it was not returned that day. We first note that although claimant characterizes his termination as sudden, his supervisors had recently informed him that his work performance was unsatisfactory and that it had to improve. Furthermore, the stress resulting from fear of losing a job or actual termination is a “normal and expected condition[] of employment life, along with the accompanying insecurity and worry.” (Esco Corp. v. Industrial Comm’n (1988), 169 Ill. App. 3d 376, 384, 523 N.E.2d 589.) Therefore, claimant’s allegation that there was a causal relationship between his termination and subsequent heart attack is without merit. As to his remaining allegation that his heart attack was also caused by his boss’ demand that he return the company car or be reported to the police, we conclude that there was sufficient evidence to support the Commission’s decision that there was no causal relationship between this incident and the heart attack two days later. In addition to claimant’s medical history, failure to follow medical guidelines, and the medical testimony, the Commission also considered the fact that, despite claimant’s reported chest pain on the day of the incident at issue, he did not seek any medical attention until two days later. Although the circuit court drew a different inference from the evidence, the findings of the Commission were not against the manifest weight of the evidence. Therefore it was error for the circuit court to substitute its judgment for that of the Commission.

Accordingly, the order of the circuit court setting aside the decision of the Industrial Commission is reversed.

Reversed.

McCULLOUGH, P.J., and WOODWARD, STOUDER, and LEWIS, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    DREYER MEDICAL CLINIC, S.C., Plaintiff-Appellant, v. DONACIANO CORRAL et al., Defendants-App ellees.
    Second District
    No. 2—91—0950
    Opinion filed April 17, 1992.

      Lisa M. Nyuli, of Alschuler, Putnam, McWethy, Funkey & Lewis, P.C., of Aurora, for appellant.
    Thomas H. Stern, of Thomas H. Stern & Associates, of Chicago, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Dreyer Medical Clinic, appeals from the judgment of the circuit court of Kane County which granted the motion of defendants, Donaciano and Gloria Corral, for a directed finding against plaintiff in its action seeking payment of medical bills. On appeal, plaintiff challenges the trial court’s decision as contrary to the manifest weight of the evidence, and it attacks the trial court’s findings that plaintiff did not prove an account stated, its corporate existence, or the liability of defendants pursuant to the family expense act (Ill. Rev. Stat. 1989, ch. 40, par. 1015(a)(1)).

On September 5, 1990, plaintiff filed a three-count complaint against defendants seeking payment for medical services allegedly rendered to defendants’ son Jorge Corral. Plaintiff alleged that it was a service corporation organized under the laws of Illinois and that from October 1989 to February 1990 it performed services for Jorge at the request of defendants. Allegedly, plaintiff billed defendants $9,949.98 for these services, and defendants did not object to the amount of the bills. In count I, plaintiff asserted a cause of action based on an account stated; count II pleaded a cause of action in contract; and count III was based on the family expense act (Ill. Rev. Stat. 1989, ch. 40, par. 1015(a)(1)).

Defendants filed an answer to the complaint. In their answer, defendants stated that they lacked sufficient information to admit or deny the corporate existence of plaintiff. Defendants denied the remaining allegations. Defendants also filed a third-party complaint against two of their insurance companies. In the third-party complaint, defendants alleged that on October 14, 1989, their son Jorge was injured in an automobile accident. Thereafter, defendants demanded that the insurance companies pay all the medical expenses incurred by Jorge. Both companies refused to pay. Defendants requested the trial court to order the companies to “pay the medical benefits due to [plaintiff.”

Subsequently, the third-party complaint was dismissed. Defendants’ affirmative defense was also stricken on plaintiff’s motion. Since there was no court reporter present at the bench trial, we derive the following facts from the certified bystander’s report.

Plaintiff’s first witness was Diane Langston, the credit department supervisor for plaintiff. Langston was in charge of collection of past-due accounts. The first time Langston had any knowledge of defendants’ file was when it was delivered to her in the credit department when the balance was past due. The balance was comprised of charges for services plus finance charges, which were assessed pursuant to the terms of the patient registration form. The form was admitted into evidence over defendants’ objection.

Plaintiff also sought to introduce into evidence the bills and itemization of the charges. The court sustained defendants’ objection to the evidence on the basis that it lacked a sufficient foundation. According to Langston, the ordinary procedure followed at plaintiff’s clinic is that the treating physician fills out an encounter slip upon seeing a patient, and the computer entries for billing are made from the encounter slips. Langston testified that the charges on defendants’ billing were accurate to the best of her knowledge and they were usual and customary for plaintiff’s clinic. Langston admitted, however, that she did not know if the charges were the normal, ordinary and customary charges made by physicians in the community for the same services. Langston also did not know if the charges were reasonable or how the computerized bills were generated or checked for accuracy.

Regarding plaintiff’s corporate existence, Langston testified that she did not know whether Dreyer Medical Clinic was a partnership, a corporation or some other type of business entity. Langston had never seen the articles of incorporation or attended a corporate board meeting. However, Langston qualified this testimony by stating that she knew plaintiff was a corporation from the designation “S.C.” on the letterhead (although she did not know what “S.C.” meant), and because her direct superiors had informed her that plaintiff was a corporation.

Plaintiff called Gloria Corral to testify as an adverse witness. Gloria testified through an interpreter because she cannot speak, read or write in English. However, Gloria may have answered some questions in English. Gloria testified that she brought Jorge to Dreyer Medical Clinic and requested that he be treated. Gloria acknowledged that she signed the patient registration form, although she stated that someone else completed the form and she merely signed it. According to Gloria, she did not know what the form said.

Gloria admitted that she received bills from plaintiff for services rendered to Jorge and that she submitted those bills to her insurance companies. The insurers had refused to pay the bills because Gloria would not agree to sign a subrogation agreement. The medical bills “form[ed] part of the basis for damages in a personal injury lawsuit.” Defendants did not object to the charges until December 1990.

The court admitted the patient registration form into evidence but noted that the form was “not an agreement to pay for medical services, rather, that it [wa]s an agreement by the plaintiff to accept monthly payments.” The form lists the patient as Jorge Corral, his birth date as “12-20-73,” and the responsible party as Donaciano Corral, “father.” At the close of plaintiff’s case, defendants moved for a directed finding. After hearing arguments the court found: (1) plaintiff failed to prove the corporate existence of Dreyer Medical Clinic; therefore, there was no plaintiff; (2) plaintiff did not offer proof of the services rendered to Jorge; (3) plaintiff did not prove the reasonableness of the fees charged; (4) plaintiff did not prove the relationship between the defendants; (5) Gloria’s signature on the patient registration form only served as an acknowledgement of the finance charge disclosures, not as a verification of the personal information contained therein; and (6) plaintiff failed to prove its prima facie case. The court granted defendants’ motion and entered judgment against plaintiff.

Plaintiff filed a motion to reconsider the judgment, alleging that the judgment was in error because plaintiff proved an account stated; plaintiff proved its corporate existence; and the third-party complaint established the proof of services rendered and the relationship between Jorge and defendants. Plaintiff also raised issues relating to alleged evidentiary errors. In the written order denying plaintiff’s post-judgment motion, the court made the following findings: (1) “Plaintiff did not properly designate the client as an Illinois corporation, and although alleged in the complaint, was not proven at trial”; (2) “Plaintiff did not lay proper foundation for the records to be admitted into evidence at the time of trial”; and (3) “no testimony was proffered by plaintiff to prove what services were rendered to defendants’ son, how much the services were worth, and whether they were necessary and reasonable.” Plaintiff timely appealed.

The proper standard to apply when a defendant moves for judgment following the plaintiff’s case in a bench trial is that established by our supreme court in Kokinis v. Kotrich (1980), 81 Ill. 2d 151. The Kokinis standard requires that the trial court first determine whether the plaintiff has made out a prima facie case. If so, the court must then weigh the evidence, including any favorable to the defendant, pass on the credibility of the witnesses, and draw reasonable inferences from the evidence. If that weighing process results in the negation of some of the evidence necessary to the plaintiff’s prima facie case, the court should grant the motion and dismiss the cause. (Kokinis, 81 Ill. 2d at 154-55.) We must affirm if the trial court’s ruling was not against the manifest weight of the evidence. Bruss v. Klein (1991), 210 Ill. App. 3d 72, 78.

On appeal, plaintiff argues that defendants made judicial admissions in their third-party complaint in which they admitted that Jorge was their son and that plaintiff rendered services to Jorge.

A judicial admission is a deliberate, clear, and unequivocal statement by a party regarding a concrete fact within that party’s peculiar knowledge where the information upon which the admission was based was uniquely within the personal knowledge of the person making it. (First Options of Chicago, Inc. v. Stellings (1991), 215 Ill. App. 3d 1093, 1098.) As plaintiff admits, these statements were contradicted by defendants’ denials in their answer. Moreover, the alleged admissions were made as part of a third-party complaint. In such an action, the third-party defendant’s liability is dependent on the liability of the third-party plaintiff to the original plaintiff. (People v. Brockman (1991), 143 Ill. 2d 351, 368.) A statement made as part of an alternative fact pleading, which was made in good faith, cannot be used as an admission against the pleader. (Bargman v. Economics Laboratory, Inc. (1989), 181 Ill. App. 3d 1023, 1032.) The third-party complaint here was an alternate form of pleading. (See Bargman, 181 Ill. App. 3d at 1032-33.) In either event, we conclude that the statements in the third-party complaint were not judicial admissions.

Plaintiff next argues that the trial court’s decision was in error because plaintiff proved an account stated. Although plaintiff correctly represents the principles for an account stated, we do not agree with plaintiff’s conclusion.

An account stated is an agreement between parties who previously engaged in transactions that the account representing those transactions is true and the balance stated is correct, together with a promise for the payment of the balance. (Toth v. Mansell (1990), 207 Ill. App. 3d 665, 671.) Whether an account stated exists is a question for the trier of fact to resolve. McHugh v. Olsen (1989), 189 Ill. App. 3d 508, 516.

Plaintiff has overlooked one requirement for a valid account stated:

“ ‘An account stated cannot be made the instrument to create an original liability; it merely determines the amount of the debt where liability previously existed. [Citations.] An account stated only determines the amount of the debt where a liability exists, and cannot be made to create a liability per se where none before existed.’ ” (Sexton v. Brach (1984), 124 Ill. App. 3d 202, 205, quoting Pope County State Bank v. U.G.I. Contracting Co. (1932), 265 Ill. App. 420, 423-24.)

In other words, an account stated is merely a form of proving damages for the breach of a promise to pay on a contract. Here the trial court found that plaintiff failed to prove any liability of defendants, and, consequently, plaintiff could not establish an account stated.

Plaintiff further argues that it proved the defendants were liable pursuant to the family expense act (Ill. Rev. Stat. 1989, ch. 40, par. 1015(a)(1)). Defendants respond that none of plaintiff’s arguments address the essential problems identified by the trial court: that there was no evidence “to prove what services were rendered to defendants’ son, how much the services were worth, and whether they were necessary and reasonable.”

Plaintiff has not raised any arguments in this regard. We find that plaintiff has waived this issue. (134 Ill. 2d R. 341(e)(7).) Even if we were to agree with plaintiff that it proved that Jorge was the minor son of defendants and that plaintiff proved its corporate existence, such findings do not negate the trial court’s conclusion that plaintiff failed to present any proof of the services rendered and the value of those services.

Plaintiff also has not attacked the trial court’s ruling which barred the admission of the medical records into evidence. Any error in this regard is also waived. (134 Ill. 2d R. 341(e)(7).) For a plaintiff to establish a prima facie case in contract, it must introduce evidence showing the existence of a contract between itself and the defendant, performance of the contractual conditions by the plaintiff, breach of the contract by the defendant, and the resulting damages. (People ex rel. Hartigan v. E & E Hauling, Inc. (1991), 218 Ill. App. 3d 28, 47.) Since there was no evidence regarding what services were rendered to Jorge, what they were worth or whether those services were reasonable or necessary, we conclude that the trial court’s ruling was not against the manifest weight of the evidence.

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

Affirmed.

WOODWARD and McLAREN, JJ., concur.


author: JUSTICE DUNN

text:
      In re MARRIAGE OF SUSAN C. HINDENBURG, Petitioner-Appellant, and WILLIAM B. HINDENBURG, Respondent-Appellee.
    Second District
    No. 2—91—0545
    Opinion filed April 14, 1992.
    Harry Schaffner, of Schaffner & Van Der Snick, P.C., of Geneva, for appellant.
    James P. Minnihan, of Minnihan Law Offices, of Sycamore, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Petitioner, Susan Hindenburg, appeals the judgment of the circuit court of De Kalb County which, among other things, awarded permanent custody of the parties’ two children to respondent, William Hindenburg. On appeal, petitioner contends that (1) the court erred in conducting an in camera interview with the children without the presence of the parties’ attorneys and in not immediately releasing the transcript of that interview; (2) that these errors cannot be considered harmless; and (3) that the court improperly considered evidence of “marital misconduct” in making the custody determination.

The parties had previously been married to each other, but were divorced in 1985. During the first marriage two children were born, William, born in 1983, and Andrew, born in 1985. The parties remarried August 13, 1988, but separated early in 1989. Petitioner filed the instant petition for dissolution of marriage on April 10,1989.

The primary contested issue was that of custody of the parties’ children. The court awarded temporary custody to petitioner. After trial, however, the court granted permanent custody to respondent. The court granted petitioner liberal visitation and ordered her to pay $70 per week for child support.

On February 20, 1991, the court conducted an in camera interview with the children. The attorneys for the parties were not present. A court reporter was present, but the court ordered the transcript impounded. The court announced its decision March 8, 1991. On March 14, 1991, the court entered a judgment order in conformance with its ruling. On April 4, 1991, on petitioner’s motion, the court vacated its order impounding the transcript. Petitioner subsequently filed a post-trial motion, which the court denied. Petitioner filed a timely notice of appeal.

On appeal, petitioner maintains that it was error to interview the children in camera in the absence of the parties’ counsel or a valid waiver of the presence of counsel. She further contends that it was error to impound the transcript and that these errors cannot be considered harmless under the facts of the case. Finally, petitioner contends that the court improperly considered evidence of “marital misconduct” in making the custody determination.

Section 604 of the Illinois Marriage and Dissolution of Marriage Act (the Act) provides for in camera interviews. Specifically, that section provides as follows:

“The court may interview the child in chambers to ascertain the child’s wishes as to his custodian and as to visitation. Counsel shall be present at the interview unless otherwise agreed upon by the parties. The court shall cause a court reporter to be present who shall make a complete record of the interview instantaneously to be part of the record in the case.” Ill. Rev. Stat. 1989, ch. 40, par. 604(a).

Petitioner contends that it was error to conduct the interview without the presence of counsel. Respondent replies that the record reflects a valid waiver of the presence of counsel. Specifically, at the hearing on petitioner’s post-trial motion, the court stated as follows:

“My recollection is that there was a clear waiver by both counsel. I remember addressing the attorneys in advance of the in camera session with the children. *** I remember asking the attorneys if they wished to be present. Each of them indicated that they [sic] did not.”

Petitioner contends that the court’s recollection was mistaken and points out that the common-law record does not contain a written waiver.

Nothing in section 604 requires that the waiver be in any particular form, however. Moreover, there is absolutely nothing in the record to contradict the court’s detailed recollection of a waiver by both attorneys. In the absence of a contrary indication in the record, this court must presume the trial court acted properly. (Johnson v. Figgie International, Inc. (1985), 132 Ill. App. 3d 922, 928; Rosenblatt v. Michigan Avenue National Bank (1979), 70 Ill. App. 3d 1039, 1042.) The trial judge may rely on his own recollection, particularly where that recollection does not contradict the record, but rather supplies an omission to its contents. (Paschen Contractors, Inc. v. Illinois State Toll Highway Authority (1992), 225 Ill. App. 3d 930, 935-36; People v. Brownstein (1982), 105 Ill. App. 3d 459, 462-63.) In the instant case, although the court was clearly speaking from memory, there is simply nothing in the record to contradict the court’s recollection. We note that no objection was made to the court’s statement regarding its recollection of the conversation at which the waiver occurred. We will not assume that the court’s memory was faulty absent some evidence in the record to the contrary.

Petitioner also appears to contend that her attorney’s waiver was not binding on her, since section 604 provides that the waiver must be that of the parties. However, parties are presumed to act through their attorneys, and the action of an attorney in the conduct of a case is binding on his client. (Ruggio v. Ditkowsky (1986), 147 Ill. App. 3d 638, 645.) The waiver by petitioner’s counsel was binding on her.

Petitioner next contends that the court erred by not immediately releasing the transcript of the in camera interview or at least making findings of fact on the record. Petitioner cites the last sentence of section 604(a), which states, “The court shall cause a court reporter to be present who shall make a complete record of the interview instantaneously to be part of the record in the case” (Ill. Rev. Stat. 1989, ch. 40, par. 604(a)) and contends that this requires that the transcript be immediately placed in the court file. The court stated that its reason for impounding the transcript was to place the children further at ease by assuring them that their statements would not be immediately made known to the parties. Indeed, the entire purpose of the in camera interview procedure is to permit the court to ascertain the children’s preferences free from the pressures and acrimony of open court. (In re Marriage of Slavenas (1985), 139 Ill. App. 3d 581, 585; Oakes v. Oakes (1964), 45 Ill. App. 2d 387, 392-93.) The requirement of a court reporter strikes a balance between the children’s interest in a noncoercive environment and the parties’ right to preserve a record for appeal. (Slavenas, 139 Ill. App. 3d at 585-86.) The word “instantaneously” in section 604 refers to the making of the record rather than the filing of the transcript in the record. (See Ill. Ann. Stat., ch. 40, par. 604, Historical & Practice Notes, at 56 (Smith-Hurd 1980).) In the instant case, a court reporter was present at the interview, and the transcript was eventually made available to the parties. We conclude that the court substantially complied with section 604.

Even if error occurred in temporarily impounding the transcript of the interview, we fail to see how petitioner was prejudiced. It does not appear from the record that either party moved to have the transcript released prior to the court rendering its decision. Had petitioner done so, she might well have had an opportunity to counter anything in the interview which allegedly prejudiced her. Moreover, the transcript was released prior to petitioner filing her post-trial motion, and the motion does not specifically object to anything which occurred at the in camera session. The transcript was made available prior to the disposition of her post-trial motion, and petitioner never attempted to offer additional evidence in response to the children’s statements to the court. Even now, petitioner does not state what evidence she might present if given another opportunity to do so. Thus, petitioner’s claim that the trial court effectively deprived her of the opportunity to present evidence to contradict or impeach the statements made by the children at that interview is without foundation.

Petitioner’s attempt to distinguish Slavenas is unavailing. In that case, no court reporter was present at the interview because none was available, although the parties’ attorneys were present. This court held that the error in conducting the interview without the presence of a court reporter was harmless where the parties’ son was able to testify in open court about his preference. (Slavenas, 139 Ill. App. 3d at 586.) In the instant case, a transcript was made and was later released to the parties. There is no showing in the record that petitioner was prevented from calling her sons to testify or offering other evidence to rebut or impeach their statements to the court. We conclude that even if error occurred, petitioner has not demonstrated any prejudice as a result.

Petitioner’s final contention is that the trial court considered certain allegedly improper evidence in making the custody determination. This argument, however, is accompanied by neither citations to relevant portions of the record nor citations to relevant authority as required by Supreme Court Rule 341 (134 Ill. 2d Rules 341(e)(6), (e)(7)). Thus, this contention has been waived.

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

Affirmed.

WOODWARD and McLAREN, JJ., concur.