text:
    KEITH WERNER, Plaintiff-Appellee, v. BOTTI, MARINACCIO AND DeSALVO et al., Defendants-Appellants.
    Fifth District
    No. 5—89—0636
    Opinion filed November 20, 1990.

      Howard R. Wertz, of Botti, Marinaccio, DeSalvo & Tameling, Ltd., of Oak Brook, for appellants.
    Keith Werner, of Madison, appellee pro se.

   JUSTICE HARRISON

delivered the opinion of the court:

Defendants, Botti, Marinaccio & DeSalvo and Mark and Marcia Loescher, appeal from a judgment of the circuit court of Madison County which awarded plaintiff, Keith Werner, $717.02 in damages, plus court costs, on plaintiff’s small claims action for breach of contract. On this appeal, defendants contend that the circuit court erred in allowing plaintiff to present various forms of hearsay evidence and that if this hearsay is excluded from the record, there is not sufficient competent evidence to sustain the circuit court’s judgment. For the reasons which follow, we affirm.

Plaintiff is the sole proprietor of Medlaw, a company which provides experts, including doctors and nurses, to review medical records for attorneys for use in litigation. On September 1, 1988, plaintiff received a telephone call from Aldo Botti, an attorney with the law firm of Botti, Marinaccio & DeSalvo. Botti advised plaintiff that he was seeking a physician with experience testifying as an expert in court who could review medical records in a negligence action which Botti’s firm was handling on behalf of Mark and Marcia Loescher. Plaintiff proposed a number of possible candidates to Botti and gave him information regarding their locations, credentials, and fee schedules. From these candidates, Botti selected Dr. Malcolm Brochin, a graduate of Harvard Medical School who was on the faculty at Yale and who practiced medicine in Connecticut.

Plaintiff informed Botti that he would charge $275 per hour for Brochin's services, plus incidental expenses such as postage, Federal Express bills, and telephone charges. He also advised Botti that Botti would have to pay a $500 retainer and provide him with all of the medical records, together with a cover letter. Plaintiff claims that Botti accepted these terms, tendered the requisite retainer check and forwarded the pertinent medical records. Plaintiff, in turn, supplied the records to Dr. Brochin, who conducted the review which Botti had requested.

Based upon his review of the records, which took four hours, Bro-chin could find no evidence of negligence, but recommended that the records be reviewed by a neonatologist. In a telephone conversation which plaintiff subsequently had with Botti, Botti disputed Brochin’s findings. Plaintiff testified that he told Botti that Brochin felt strongly about his conclusions, and plaintiff asked Botti if he did in fact want the records reviewed by a neonatologist. According to plaintiff, Botti said that he did want such a review and that plaintiff should let him know what the retainer for this additional review would be. When plaintiff received the records back from Dr. Brochin, he therefore forwarded those records to Dr. Charles Brill, a board-certified neonatologist, and requested Brill to let him know what it would cost to have the records examined. In the course of forwarding the records to Dr. Brill, plaintiff incurred an additional $68 in Federal Express shipping charges.

Plaintiff paid Brochin for his services and sent his own bill to defendants. That bill, dated September 29, 1988, included charges for four hours of work by Dr. Brochin at the quoted rate of $275 per hour, plus a Federal Express charge of $32, a charge of $10.22 for long distance telephone calls, and postage of $6.80, for a total of $1,149.02. From this, plaintiff deducted the $500 retainer he had already received, leaving a balance due of $649.02.

After Botti received plaintiff’s bill, plaintiff discussed the bill with him by telephone. During that conversation, Botti expressed concern over the amount he was charged. According to plaintiff, Botti told him that he thought that the charges were a little high and that Bot-ti’s firm normally had to pay only $1,000 to have medical records reviewed by someone in Chicago, where Botti’s office was located. Plaintiff explained to Botti that it was Botti who had selected Bro-chin, that Botti knew what the hourly charge would be, and that based on the size and complexity of the records, plaintiff did not think that the total charges were excessive. According to plaintiff, Botti then stated that he would pay the bill, although he indicated that in the future he would like “to have more said as far as how much it will cost to have records reviewed.”

Despite Botti’s assurance that the bill would be paid, such payment was not forthcoming. Plaintiff made two subsequent written requests for payment without avail, and attempts to contact Botti by phone proved unsuccessful. Finally, on January 10, 1989, plaintiff received a letter from Mr. Botti advising him that he regarded plaintiff’s bill as excessive and would not pay it. Ten days later, on January 20, 1989, plaintiff brought his pro se small claims action against Botti’s law firm and its clients, the Loeschers, seeking damages of $717.02, plus costs and interest. The $717.02 demanded included the $649.02 balance due under the September 29, 1988, bill plus the $68 in additional Federal Express charges plaintiff had incurred in forwarding the medical records to Dr. Brill.

Following an informal hearing pursuant to Supreme Court Rule 286(b) (113 Ill. 2d R. 286(b)), the circuit court entered judgment in favor of plaintiff and against the defendants in the amount of $717.02. The court also awarded plaintiff court costs of $29 for the filing fee and $15 for service fees. The court refused to grant plaintiff an award of prejudgment interest. A post-trial motion subsequently filed by defendants was denied, and this appeal followed.

On this appeal, defendants contend that the circuit court’s judgment must be reversed because the circuit court allowed into evidence various matters which defendants believe constitute inadmissible hearsay. The specific offending matter to which defendants objected at trial included an affidavit by Dr. Brochin; plaintiff’s testimony regarding the initial telephone conversation which he had with Botti on September 1, 1988; and plaintiff’s testimony regarding a subsequent telephone conversation with Brochin in which Brochin related a conversation he had had with Botti.

Dr. Brochin resided in Connecticut, and there is no dispute that he was beyond the reach of compulsory process and could not be compelled to testify at trial. Plaintiff resorted to use of Brochin’s affidavit after the circuit court turned down a pre-trial request he made pursuant to Supreme Court Rule 287(a) (113 Ill. 2d R. 287(a)) to take Bro-chin's deposition. At the hearing, the circuit court denied defendants’ hearsay objections to Brochin’s affidavit and to the challenged telephone conversations on the grounds that their admission was proper under Supreme Court Rule 286(b) (113 Ill. 2d R. 286(b)), which provides that where, as here, an informal hearing is held in a small claims case, “the court may relax the rules of procedure and the rules of evidence.”

Defendants argue that this holding was incorrect because it was tantamount to finding that Supreme Court Rule 286(b) (113 Ill. 2d R. 286(b)) has abrogated the common law prohibition against hearsay evidence. In defendants’ view, the rule cannot be given such an expansive construction because if it were and if hearsay evidence were admissible, they would be deprived of their right to cross-examine witnesses and this, in turn, would be a violation of their due process rights under the United States Constitution and article I, section 2, of the Illinois Constitution of 1970. Defendants further contend that if the challenged evidence is excluded from the record, the circuit court’s judgment cannot be sustained.

As a preliminary matter, we note that defendants’ constitutional claims were not raised before the trial court. The general rule in civil cases is that constitutional arguments which are not raised by objection at trial are considered waived for purposes of appeal. (In re Liquidations of Reserve Insurance Co. (1988), 122 Ill. 2d 555, 567-68, 524 N.E.2d 538, 543-44.) Even if we were to set aside considerations of waiver, however, defendants’ constitutional arguments would be unavailing.

A reviewing court will decide constitutional questions only where resolution of those questions is essential to disposition of the appeal. (In re Application of the County Collector of Kane County for Judgment for Delinquent Taxes for the Year 1985 (1988), 172 Ill. App. 3d 897, 902, 527 N.E.2d 141, 143, affd (1989), 132 Ill. 2d 64, 547 N.E.2d 107.) This is not such a case. To decide this appeal, there is no need to reach the issue of whether adherence to the common law rule against hearsay evidence is an invariable requirement of due process. Indeed, we do not believe that there is even any need to consider whether Supreme Court Rule 286(b) (113 Ill. 2d R. 286(b)) authorizes the admission of hearsay evidence in informal hearings on small claims actions. This is so because the evidence presented to the circuit court in this case was either not objected to; did not, in fact, constitute hearsay; or, even if hearsay, was not necessary to support the court’s judgment.

As we have indicated, defendants interposed hearsay objections at the hearing only to (1) plaintiff’s testimony regarding the initial telephone conversation which plaintiff had with Botti on September 1, 1988; (2) plaintiff’s testimony regarding a telephone conversation he had had with Brochin in which Brochin related a conversation he had had with Botti; and (3) Brochin’s affidavit. Although defendants now cite various other examples of alleged hearsay in their arguments before this court, defendants failed to object to this additional evidence at trial. It is axiomatic that an objection to hearsay evidence must be raised at the trial level and cannot be raised for the first time on appeal. (Schwartz v. Alton & Southern Ry. Co. (1976), 38 Ill. App. 3d 528, 531, 347 N.E.2d 829, 831.) Accordingly, defendants must be deemed to have waived their hearsay objections to all but the three matters we have just enumerated.

The first of these matters, plaintiff’s testimony regarding his September 1, 1988, telephone conversation with Botti, was not in fact objectionable on hearsay grounds. This is an action for breach of an oral contract. Obviously, the only way to establish that an oral contract exists is by testimony as to the conversation which was had between the contracting parties. (Creaghe v. Iowa Home Mutual Casualty Co. (10th Cir. 1963), 323 F.2d 981, 985.) Accordingly, it has been recognized that the prohibition against hearsay does not preclude relevant testimony as to what the contracting parties said with respect to the making or the terms of an oral agreement. (323 F.2d at 984; 31A C.J.S. Evidence §261, at 681-82 (1964); E. Cleary, McCormick on Evidence §249, at 588-89 (2d ed. 1972).) Plaintiff’s testimony regarding the September 1 conversation between him and Botti falls squarely within this rule. The record shows that the conversation consisted entirely of statements by the parties which constituted, or were at least a significant part of, the offer and acceptance which brought the contract into being. Thus, even though unsworn and made out of court, those statements were properly admitted.

Plaintiff’s testimony was properly admitted for other reasons. as well. That testimony consisted in large part of matters which plaintiff himself had said to Botti. The law is well established that where, as here, a declarant himself testifies as to prior out-of-court declarations he has made, and is therefore present in court and subject to cross-examination, the basis for excluding hearsay is removed, and no hearsay objection is appropriate. Pyse v. Byrd (1983), 115 Ill. App. 3d 1003, 1010, 450 N.E.2d 1374, 1379.

Even as to the statements which plaintiff attributed to Botti, plaintiff’s testimony was not properly subject to a hearsay objection. It is axiomatic that any statement, whether oral or written, made out of court by a party to an action or attributable to a party to an action, which tends to establish or disprove any material fact in a case, is an admission and is competent evidence against that party in such action. (See Maltby v. Chicago Great Western Ry. Co. (1952), 347 Ill. App. 441, 458, 106 N.E.2d 879, 888; Cardiel v. Warren (1989), 191 Ill. App. 3d 816, 821, 548 N.E.2d 1081, 1084.) Correspondingly, a statement of an agent, when made in the exercise of his duties and pertaining to matters within the scope of his authority, may constitute an admission binding on the principal which can be introduced substantively against the principal. (Oak Lawn Trust & Savings Bank v. City of Palos Heights (1983), 115 Ill. App. 3d 887, 896, 450 N.E.2d 788, 796.) In this case, there is no dispute that the challenged statements attributable to Botti were made in the exercise of his duties and pertained to matters within the scope of his authority. Nor is there any dispute that the challenged statements were relevant to this case. Accordingly, those statements were properly admissible against defendants.

We recognize that the circuit court did not follow this analysis in ruling on defendants’ objections. It obviously believed that the statements related by plaintiff in his testimony regarding the September 1, 1988, telephone conversation were hearsay and would not have been admissible but for Supreme Court Rule 286(b) (113 Ill. 2d R. 286(b)). Nevertheless, a court’s reasons for determining the admissibility of evidence are immaterial on appeal if there is a proper basis appearing in the record or law which would sustain the court’s ruling. (Cuellar v. Hout (1988), 168 Ill. App. 3d 416, 425, 522 N.E.2d 322, 327.) As we have just shown, such a basis exists here.

This leaves only plaintiff’s statements regarding his telephone conversation with Brochin in which Brochin related a .conversation he had had with Botti and the affidavit obtained by plaintiff from Bro-chin. We need not address whether these matters constitute hearsay, however, for even if they did, their admission would not be fatal to plaintiff’s case. In a nonjury case, where the record contains sufficient competent evidence to sustain the judgment, the law assumes that the trial judge considered only admissible evidence and disregarded improperly admitted evidence in reaching its decision. (Vranas & Associates, Inc. v. Family Pride Finer Foods, Inc. (1986), 147 Ill. App. 3d 995, 1006, 498 N.E.2d 333, 342.) This is such a case.

Plaintiff sought recovery based on defendants’ breach of an oral contract to pay plaintiff for providing an expert to review certain medical records. To state a cause of action for breach of contract, a plaintiff must show the existence of a valid and enforceable contract, performance of the contract by plaintiff, breach of the contract by defendants, and resulting injury to plaintiff. (Prevendar v. Thonn (1988), 166 Ill. App. 3d 30, 35, 518 N.E.2d 1374, 1378.) Even if we exclude Brochin’s affidavit and plaintiff’s testimony regarding what Brochin and Botti had discussed with one another, the evidence was sufficient to prove these elements.

That evidence established that defendants, through Botti, accepted plaintiff’s offer to have Dr. Brochin review medical records for them at a rate of $275 per hour, plus incidental telephone and mailing costs, with a retainer of $500 payable in advance to be applied toward the total bill. Although the parties did not specify how many hours were to be expended by Dr. Brochin, this was clearly not a material term. Botti indicated that the total amount did not matter, and no cap on the fees was imposed by him.

Defendants, by Botti, paid the requisite $500 retainer and sent the medical records for review. Plaintiff then did everything which was required of him under the agreement, and defendants received what they bargained for. The records were forwarded to Dr. Brochin, and there can be no serious dispute that Brochin performed the requested review and spent four hours doing so.

It was not necessary for the circuit court to have relied on Bro-chin’s affidavit or on plaintiff’s account of what Brochin and Botti had discussed in order to determine that this was so. That Brochin performed the work defendants had requested and had required four hours to do so was established through plaintiff’s testimony, admissions by Botti which were properly admitted, and various documentary exhibits to which no hearsay objection was raised.

Although Botti protested at one point that Brochin had not furnished a written report based on his review, the trial court could certainly have found that a written report was not required under the agreement. Indeed, plaintiff testified (1) that Botti had specifically told him that he did not want anything to be put in writing by Dr. Brochin until Botti had discussed the matter with the doctor, and (2) that Botti had decided against a written report after learning that Brochin’s conclusions would not be favorable to the Loeschers’ case.

There was also sufficient evidence to support a finding that the contract was breached by defendants. The record shows that defendants flatly refused to pay anything beyond the initial $500 retainer. While they were evidently unhappy that Brochin’s conclusions were not favorable to them, this was no justification for their actions. Plaintiff was not retained by defendants on a contingency basis. Plaintiff’s right to payment was not made to hinge on whether Bro-chin’s conclusions were favorable.

Defendants’ breach unquestionably resulted in damage to plaintiff. He received less than half of the money to which he was entitled under the contract. At the same time, he was required to pay Dr. Bro-chin $800 for his services and to advance out of his own pocket various postage, telephone and Federal Express charges which should have been borne by defendants. Considering only the evidence which was properly before the circuit court, plaintiff was therefore certainly entitled to the $649.02 for which he had originally billed defendants.

Plaintiff was likewise entitled to the additional $68 he sought for the Federal Express charges he incurred in sending the medical records to Dr. Brill, the neonatologist. The evidence properly before the circuit court plainly showed that Botti accepted plaintiff’s offer to forward the records to a neonatologist and that plaintiff did, in fact, send the records as agreed. There was no dispute that the Federal Express charges incurred by plaintiff did amount to the $68 claimed, and based upon the prior discussions and dealings between the parties, it was clear that responsibility for these charges lay with defendants. Defendants have never claimed otherwise.

For the foregoing reasons, the judgment of the circuit court of Madison County in favor of plaintiff and against defendants in the amount of $717.02, plus court costs, is affirmed.

Affirmed.

HOWERTON and CHAPMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN JUSTICE GOLDENHERSH,

license: Public Domain

text:
    JERRY TAYLOR et al., Plaintiffs-Appellants, v. R.D. MORGAN & ASSOCIATES, LTD., et al., Defendants-Appellees.
    Fifth District
    No. 5—88—0195
    Opinion filed November 27, 1990.

      GOLDENHERSH, J., concurring in part and dissenting in part.
    Martin L. Perron, of Carr, Korein, Sehlichter, Tillery, Kunin & Montroy, of East St. Louis, for appellant.
    Charles E. Schmidt and Rebecca J. O’Neill, both of Mitchell, Brandon & Schmidt, of Carbondale, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

This appeal arises from a medical malpractice case in which the trial court directed a verdict in favor of the defendants on the mother’s claim for medical expenses, and the jury returned a verdict for the defendants on the son’s claim. Five issues are presented for review:

(1) whether a directed verdict in favor of defendants and against the plaintiff on the mother’s claim for medical expenses was correctly entered;
(2) whether a juror should have been stricken for cause;
(3) whether the jury was properly instructed;
(4) whether a new trial was required due to misunderstanding of the instructions on the part of the jury or juror misconduct; and
(5) whether a post-verdict evidentiary hearing regarding juror misconduct should have been conducted.

The plaintiff, Jerry Taylor, was 16 years old at the time of his injury. His parents had been divorced in 1969, his mother, Vivian Wells, was awarded legal custody, and she took him to live with her in Manhattan, Illinois. Jerry’s father, Robert Taylor, lived in the Marion area, and Jerry often stayed with his father when school was not in session. Vivian Wells had a vacation home on a lake near Marion, and Jerry would be with her on the weekends.

During the summer of 1983 Jerry stayed with his father in the Marion area and he enrolled in high school in Marion for the fall term. While Jerry was with his father on a more or less permanent basis during this interval, Vivian Wells at no time relinquished legal custody. Even when Jerry was with his father, she fulfilled the obligations of the custodial parent insofar as making decisions with respect to Jerry’s well-being.

On September 8, 1983, Jerry was riding a motorcycle when he clipped the corner of the bumper of a parked car with his right foot and seriously injured it. The extent of the injuries sustained in the collision itself was a matter highly disputed at trial because its degree determined to a large extent the appropriate method of treatment.

The jury was instructed that Jerry Taylor claimed Dr. Morgan was negligent in one or more of the following respects:

(a) amputated a greater portion of Jerry Taylor’s leg and foot than was necessary;
(b) failed to perform a below-the-knee amputation in an appropriate manner; and
(c) performed surgery on Jerry Taylor without obtaining an informed consent before doing a below-the-knee amputation.

With regard to the first charge, the positions taken by the parties may be summarized as follows. The plaintiff conceded that the foot was seriously injured in the original collision, but presented testimony which established that the heel pad (that portion of tissue and skin that lies beneath the bones of the foot that comprise the heel) was intact. The defendant presented testimony which established that, not only the toes and the front part of the foot, but also the heel pad was irreparably damaged. The condition of the heel pad was of crucial importance because all the experts agreed that if it were nonviable and irreparably damaged, then no part of the foot could be saved and the below-knee (b/k) amputation, which Dr. Morgan performed, was the proper level of amputation. On the other hand, if the heel pad had been viable, less drastic amputative procedures, which would have left Jerry with a part of his foot and the ability to walk without a prothesis, should have been utilized.

The testimony on the second charge was also disputed. The plaintiff’s expert, Dr. Greenwalt, who subsequently operated upon Jerry because of the stump’s failure to heal, testified that Dr. Morgan negligently left redundant bone and tissue at the operative site and failed to bevel the edges of the large bone of the leg when he performed the amputation. Dr. Morgan and the experts who testified on his behalf denied this charge.

A summary of the evidence submitted by the plaintiff on the informed consent charge reveals that Dr. Morgan arrived at the hospital at 8:40 p.m. and after examining Jerry told him, “I am going to take your right foot off.” Jerry’s father, Robert, arrived shortly after this occurred, and Robert was also told that the below-knee amputation was necessary. Robert Taylor and his wife, Sally, asked the doctor to do all that he could to save Jerry’s foot and suggested that he be sent to St. Louis by helicopter if necessary. The doctor responded that if they tried to send him to St. Louis the boy might go into shock and die en route. Mr. Taylor originally would not sign the surgical consent form presented by Dr. Morgan. Dr. Morgan knew that Vivian Wells had legal custody of Jerry, and he consulted with the hospital administrator and the hospital attorney regarding the consent question. Dr. Morgan did not want to wait for Vivian Wells, and he eventually persuaded Mr. Taylor to sign the consent form. Mr. Taylor would not have signed the consent form if he had been told that amputation could be postponed or that there were feasible alternatives to cutting off the leg immediately. Mr. Taylor did sign the consent form at approximately 9:45 p.m., and at 10:25 p.m. Jerry Taylor was taken from the emergency room to the operating room.

Jerry’s mother, Vivian Wells, was en route between Manhattan, Illinois, and her weekend home in Marion in accordance with her usual practice. She learned of the accident upon her arrival in the Marion area and rushed to the hospital, but Dr. Morgan was already performing the amputation. She never consented to the amputation.

The evidence from the defendant’s standpoint on the informed consent question reveals the following. Dr. Morgan tried to locate Vivian Wells before operating on her son. Several calls were made to the mother’s home in northern Illinois. The Williamson County sheriff’s department attempted to contact the police in northern Illinois to see if they could help locate the plaintiff’s mother, but no one could locate her. The defendant was of the opinion that Jerry Taylor needed definite treatment at that time and obtained permission to render that treatment from Robert Taylor, his father. As has already been noted, the plaintiff was actually living with his father at the time of the accident.

Based on this evidence the trial court gave the two instructions on the informed consent issue set forth below. The second of these was numbered defendants’ instruction No. 16 and was given over plaintiff’s objection:

“Ordinarily, a surgeon must obtain the consent of a patient before operating on him. However, if the patient is a minor then the surgeon is excused from obtaining the consent of the patient to the operation. In that event, he must obtain consent from a person authorized to consent to the operation, unless it is impractical to obtain consent because of an emergency or because delay would endanger the patient’s health.
* * *
Any parent may consent to the performance of a medical or a surgical procedure upon his or her child by a physician licensed to practice medicine and surgery.”

With regard to the mother’s claim for medical expenses upon which the trial court directed a verdict in the defendant’s favor, the evidence revealed the following. Vivian Wells testified that she paid for the continuing medical treatment after surgery, that the second prothesis cost about $2,000 or more, and that she paid for some of it, but the remainder was never paid for. On cross-examination, however, she indicated that she could not tell how much she actually paid for the first prothesis and could only give a rough estimate of the cost of the second prothesis. Further, she could not recall at all how much Dr. Greenwalt, the subsequent treating doctor, had charged for the work he did. Jerry Taylor testified that the total cost for the two protheses “and everything” was $13,900 and of that sum $12,700 had been paid. Based on this evidence the trial court directed a verdict in the defendant’s favor on the mother’s claim for medical expenses.

Plaintiff argues that the trial court was in error in directing a verdict since there was evidence from which a jury could have determined the amount of the medical bills sustained by the plaintiff as a result of the conduct of the defendant. The defendant first argues that the issue is academic because the jury found that the defendant was not liable; therefore, no verdict for Vivian Wells for medical expenses could stand in any event. Without addressing that contention, we find that the defendant is correct that the plaintiff failed to prove that she paid or was liable to pay a specific amount that was directly attributable to defendant’s alleged malpractice. While the testimony of Jerry Taylor and his mother taken together might have presented a jury question as to the total amount of bills incurred for all of his treatment, and the fact that Vivian Wells paid all or most of them, there is no delineation in the record between the amount of the bills incurred as a result of the original injury and the amount of the bills incurred as a result of the defendant’s alleged misconduct. There is no way that the jury could have appropriately assessed the damages attributable to the defendant’s alleged misconduct if that issue had been presented to them. The plaintiff has the burden of establishing a reasonable basis for computation of damages. (Kohlmeier v. Shelter Insurance Co. (1988), 170 Ill. App. 3d 643, 654, 525 N.E.2d 94, 102.) An award of damages may not be based on conjecture or speculation and must be proved to result from the complained-of wrong. (Callier v. Callier (1986), 142 Ill. App. 3d 407, 418, 491 N.E.2d 505, 512.) Therefore, we find that the trial court did not err in directing a verdict in the defendant’s favor on this issue.

The plaintiff’s next contention is that the trial court erred in failing to strike juror Ronald Mann for cause. The defendant maintains that this issue is waived because the plaintiff had not exhausted his peremptory challenges at the time he accepted Mann as a juror. (See People v. Sanchez (1986), 115 Ill. 2d 238, 265, 503 N.E.2d 277, 286 (failure to exhaust peremptory challenges, while not conclusive, “tends to belie a claim of unfair prejudice”), cert, denied (1987), 483 U.S. 1010, 97 L. Ed. 2d 745, 107 S. Ct. 3240; People v. Davenport (1985), 133 Ill. App. 3d 553, 559, 479 N.E.2d 15, 20 (failure to challenge for cause or exercise a peremptory challenge results in waiver); but see People v. Hines (1988), 165 Ill. App. 3d 289, 297, 518 N.E.2d 1362, 1367 (declining to apply the waiver rule), cert, denied (1988), 488 U.S. 895, 102 L. Ed. 2d 226, 109 S. Ct. 236.) We are unable to address defendant’s argument, however, because the record does not contain a transcript of the voir dire proceedings. Thus, we are unable to determine whether the plaintiff had exhausted his peremptory challenges.

While the record before us does not contain a transcript of the voir dire proceedings, it does contain a transcript of a conference held outside the presence of the jury at which the parties’ attorneys presented their arguments regarding Mann and another juror. The record indicates that the plaintiff’s attorney argued, as he does in this court, that Mann should have been excused because he is employed as a laboratory supervisor at the Carbondale Clinic and his wife is a nurse. Mann was also acquainted with one of the defendant’s expert witnesses, and he also indicated that he had read articles in medical journals regarding malpractice suits. Plaintiff’s attorney also stated at one point that Mann was acquainted with the defendant, but this was disputed by the defendant’s attorney. The defendant’s attorney stated that Mann said he could be fair and reach a decision based on the evidence and would not be influenced by matters outside of the courtroom. In denying the plaintiff’s motion to strike juror Mann, the trial court noted that it had asked Mann “whether he believed the articles he read on malpractice and he said no.” The court stated its impression that Mann had clearly demonstrated no prejudice towards the plaintiff’s position.

The plaintiff contends that Mann’s employment in the medical field, his marriage to a nurse, his acquaintance with the defendant’s witnesses, and his exposure to opinions in medical publications critical of medical malpractice lawsuits indicate a probable bias in favor of the defendant. The plaintiff also argues that Mann’s bias is further demonstrated by the fact that one of the defendant’s witnesses, Karen Suguitan, worked at the Carbondale Clinic where Mann was employed. Although this fact was not brought out during voir dire, plaintiff claims he was prejudiced by Mann’s failure to reveal this information, citing People v. Witte (1983), 115 Ill. App. 3d 20, 449 N.E.2d 966.

The determination of whether or not a prospective juror will be fair and impartial rests within the sound discretion of the trial judge and will not be set aside unless it is against the manifest weight of the evidence. (People v. Goff (1985), 137 Ill. App. 3d 108, 118, 484 N.E.2d 414, 421.) A juror need not be totally ignorant of the facts and issues involved in a case, and the party challenging a juror has the burden of demonstrating a potential bias. (See Goff, 137 Ill. App. 3d at 118, 484 N.E.2d at 421.) Although there is no transcript of the voir dire proceedings, the record before us indicates that the trial court accepted Mann’s statements that he could be fair and reach his decision on the evidence heard in the courtroom.

“All that either side is entitled to in any lawsuit is a jury composed of persons who have sworn on their oaths that they can lay aside anything that they might have learned about the case from whatever source together with any opinions they may have formed and judge the case solely on the facts produced in open court and on the law given them by the trial judge.” People v. Farris (1980), 82 Ill. App. 3d 147, 152, 402 N.E.2d 629, 633-34.

Although the trial judge need not believe a potential juror’s statement that he is unbiased, the trial court is in a superior position to observe a venireman’s demeanor and judge his credibility. (See People v. Davis (1983), 95 Ill. 2d 1, 19, 447 N.E.2d 353, 362, cert, denied (1983), 464 U.S. 1001, 78 L. Ed. 2d 697, 104 S. Ct. 507.) Based on the record before us, we cannot say that the trial court’s finding that juror Mann had demonstrated no prejudice towards the plaintiff’s position was against the manifest weight of the evidence. We find, therefore, that the trial court did not abuse its discretion in failing to dismiss Mann for cause. Moreover, the fact that Mann did not reveal that one of the defendant’s witnesses worked at the Carbondale Clinic does not alter our finding. People v. Witte, relied upon by the plaintiff, is clearly distinguishable. In Witte, the court vacated the defendant’s conviction because one of the jurors, in response to a direct question, failed to reveal his relationship with employees of the sheriff’s department. Here, there is no evidence that juror Mann failed to answer the questions that were asked of him or answered any questions falsely.

The plaintiff next contends that the trial court erred in giving defendant’s instruction No. 16, which states that any parent may consent to a surgical procedure upon his or her child. This instruction is not an Illinois Pattern Jury Instruction (IPI), but it parallels the language of section 2 of “An Act in relation to the performance of medical, dental or surgical procedures on and counseling for minors” (Ill. Rev. Stat. 1987, ch. 111, par. 4502 (hereinafter the Surgical Procedures Act)). The plaintiff maintains that Instruction No. 16 is in conflict with IPI Civil 2d No. 105.05 (Illinois Pattern Jury Instructions, Civil, No. 105.05 (2d ed. 1971)), which was also given to the jury. IPI Civil 2d No. 105.05 instructs the jury that while a surgeon must ordinarily obtain the consent of a patient before operating on him, if the patient is a minor, then the surgeon must obtain consent from “a person authorized to consent to the operation.”

We do not agree with the plaintiff that the two instructions in question are in conflict. IPI Civil 2d No. 105.05 instructs the jury that the doctor must obtain consent from someone authorized to do so. Defendant’s Instruction No. 16 supplements IPI Civil 2d No. 105.05 by informing the jury that among those authorized to consent is “any parent.” “In limited circumstances, amplification or clarification of IPI instructions may be permitted in the discretion of the trial court.” (Lay v. Knapp (1981), 93 Ill. App. 3d 855, 857-58, 417 N.E.2d 1099, 1101; see also Balestri v. Terminal Freight Cooperative Association (1979), 76 Ill. 2d 451, 454-55, 394 N.E.2d 391, 393, cert, denied (1980), 444 U.S. 1018, 62 L. Ed. 2d 648, 100 S. Ct. 671.) Plaintiff contends, however, that Instruction No. 16 misstates the law with respect to an action for medical malpractice based on failure to obtain the informed consent of a parent, citing Dymek v. Nyquist (1984), 128 Ill. App. 3d 859, 469 N.E.2d 659, and section 608(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 608(a)).

Section 608(a) provides:

“Except as otherwise agreed by the parties in writing at the time of the custody judgment or as otherwise ordered by the court, the custodian may determine the child’s upbringing, including but not limited to, his education, health care and religious training, unless the court, after hearing, finds, upon motion by the noncustodial parent, that the absence of a specific limitation of the custodian’s authority would clearly be contrary to the best interests of the child.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 40, par. 608(a).)

Plaintiff maintains that under section 608(a), as interpreted in Dymek, only the custodial parent may consent to an operation. In Dymek, a noncustodial mother secretly sent her child to a psychiatrist for psychotherapy twice a month over a period of one year. There was no allegation of an emergency situation, nor did the mother allege she was precluded from seeking court permission for the psychiatrist’s treatment. The court held that the custodial father had a cause of action for the psychiatrist’s alleged surreptitious, unauthorized psychiatric treatment of his son. Dymek, 128 Ill. App. 3d at 865, 469 N.E.2d at 664-65.

We find Dymek to be inapposite. The Dymek court found that the psychiatrist’s action over the one-year period of psychotherapy constituted a severe interference with the father’s custodial prerogatives and duties in the area of his minor child’s health care. (Dymek, 128 Ill. App. 3d at 865, 469 N.E.2d at 664.) In the instant case, the plaintiff was brought to the hospital following a motorcycle accident in which he suffered a traumatic injury to his foot requiring medical care. The defendant took several steps to try to locate the mother, including calling her home in northern Illinois and contacting the Williamson County sheriff’s department to see if they could help in locating her. When plaintiff’s mother could not be located, defendant obtained permission to treat the plaintiff from his father, with whom he had been living and who had actual custody at the time.

We agree with the plaintiff, however, that there is at least the appearance of a conflict between section 2 of the Surgical Procedure Act, upon which defendant’s instruction No. 16 was based, and section 608(a) of the Illinois Marriage and Dissolution of Marriage Act. Section 2 allows either parent to consent to medical procedures, while section 608(a) vests the power to determine the child’s health care in the custodial parent. When two statutes relate to the same subject matter, they should be construed harmoniously where possible. (Bray v. Industrial Comm’n (1987), 161 Ill. App. 3d 87, 92, 513 N.E.2d 1045, 1048.) Applying this principle to the facts before us, we find the most harmonious construction of the two statutes at issue to be that while the power to consent to surgical procedures on a child ordinarily rests exclusively with the custodial parent, when that parent is not available, the parent who has actual custody and is available may consent to the surgery. Accordingly, we find that defendant’s instruction No. 16 correctly stated the law applicable to this case, and we find no error.

The plaintiff next contends that the trial court erred in refusing to grant a new trial where it was clear that the jury misunderstood the instructions of the court. The plaintiff presented the affidavits of two jurors which stated that all of the jurors understood the instructions to require that they must find the defendant guilty of all three alleged acts of negligence in order to find for the plaintiff. The affidavits also stated that all of the jurors agreed that the defendant was guilty of one of the alleged acts of negligence, but they could not agree upon the other allegations. In addition to the two affidavits by the jurors, plaintiff’s counsel also submitted an affidavit in which he stated that he spoke to several other jury members who agreed that they understood the instructions to require that they find the defendant guilty of all three alleged acts of negligence before they could find for the plaintiff. Plaintiff argues that this misunderstanding by the jurors deprived him of a fair trial.

“It is well established in this State, and almost universally recognized, that a jury may not impeach its verdict by affidavit or testimony which shows the motive, method or process by which the verdict was reached.
* * *
The authorities are in accord that the testimony or affidavits of jurors cannot be used to show that the jury misunderstood the instructions or the law ***.” (Chalmers v. City of Chicago (1982), 88 Ill. 2d 532, 537, 539, 431 N.E.2d 361, 363, 365.)

(See also People v. Preston (1979), 76 Ill. 2d 274, 288, 391 N.E.2d 359, 365-66; People v. Holmes (1978), 69 Ill. 2d 507, 511, 372 N.E.2d 656, 659.) We find no error by the trial court in refusing to grant a new trial on this basis.

Finally, the plaintiff contends that the trial court should have granted a new trial, or in the alternative held an evidentiary hearing, because of juror misconduct. The allegations of misconduct involve juror Ronald Mann, the same juror who was the subject of plaintiff’s unsuccessful challenge for cause. Plaintiff submitted the affidavits of two jurors in support of his motion. The affidavit of Margaret Faro relates that the jury was confused concerning the instructions, and that she, as the foreperson of the jury, began to write a note to the court asking about the instructions. According to Faro, Mann would not let her express herself and she was not allowed to finish the note. The affidavit then states:

“Mann insisted we must find against the [plaintiff] and in favor of Dr. Morgan.
Mr. Mann worked at Carbondale Clinic and urged us not to find against a doctor in a malpractice case. I worked at a hospital and I argued doctors could make mistakes, but he would not agree.
* * *
At the end, Mr. Mann told us that he had discussed the case with a nurse who told him Dr. Morgan could not have saved the foot. Mr. Stilley, another juror, asked Mr. Mann if he talked with the nurse before or after the trial started and Mr. Mann said it was after the trial started.”

Plaintiff also submitted the affidavit of Randall Stilley. Stilley’s affidavit states that Mann indicated several times he would not find against Dr. Morgan, and that at one point Mann said that he had discussed the case with a nurse.

The defendant submitted the affidavits of two nurses, including that of Karen Suguitan, which stated that Suguitan had not discussed the case with Mann. In his affidavit, Mann stated that he “heard someone comment to the effect that Karon [sic] said something about the foot could not be saved.” Mann stated that when he realized that the reference was to “Karon Sugitan [sic]” and the lawsuit in which he was a juror he immediately left the room. Mann denied ever having any conversation with Suguitan and stated that the comment had no effect on his decision. Mann admitted that he told the other jurors about the comment that he had overheard, but he maintained that this occurred after all the jurors had signed the verdict forms and were getting ready to go back into the courtroom.

Plaintiff argues that he is entitled to a new trial because the affidavits established that Mann answered falsely on voir dire when he said he would follow the instructions of the court and decide the case based upon the evidence. Plaintiff also argues that the information Mann acquired outside of the courtroom influenced his decision and was improperly related to the other jurors. Plaintiff cites Schulz v. Rockwell Manufacturing Co., Rockwell International Cory. (1982), 108 Ill. App. 3d 113, 438 N.E.2d 1230, and Heaver v. Ward (1979), 68 Ill. App. 3d 236, 386 N.E.2d 134, in support of his position. In Schulz, the court reversed and remanded for a new trial where the post-trial affidavits established that two jurors had answered falsely when asked on voir dire whether they had ever worked for or had any contact or connection with the defendant company. Schulz held that a new trial is required where it is established that a juror answered falsely on voir dire and that prejudice resulted therefrom. Schulz, 108 Ill. App. 3d at 121-22, 438 N.E.2d at 1235.

In Schulz, the affidavits clearly established that the jurors had not been truthful on voir dire. In the instant case, however, while the affidavits show that Mann vigorously supported the defendant’s position during the jury deliberations, we are unable to glean from the record before us whether Mann’s position was the result of the evidence presented at trial or some preexisting personal bias. See People v. Porter (1986), 111 Ill. 2d 386, 404-05, 489 N.E.2d 1329, 1336-37, cert. denied (1986), 479 U.S. 898, 93 L. Ed. 2d 272, 107 S. Ct. 298.

Similarly, we are unable to say that the evidence presented concerning the out-of-court statement of the nurse is sufficient to grant a new trial. Heaver v. Ward, relied upon by the plaintiff, is distinguishable. In Heaver, the foreman of the jury made an independent visit to the accident site and made a diagram of the intersection which he brought to the jury room during the deliberations, along with a copy of the “Rules of the Road.” While there was conflicting evidence-regarding whether the diagram was shown to the other jurors, it was clear that at least one juror was shown the “Rules of the Road.” The court reversed and remanded for a new trial, finding that it was sufficient that the unauthorized evidence may have improperly influenced the verdict. Heaver, 68 Ill. App. 3d at 241, 386 N.E.2d at 139.

In this case, the affidavits of jurors Faro and Stilley indicate that Mann discussed the case with a nurse and talked with a nurse. Mann claims, however, that he merely overheard a conversation concerning the condition of the plaintiff’s foot. Furthermore, Mann claims that he told the jurors about this out-of-court statement after they had concluded their deliberations. The affidavits of Faro and Stilley are equivocal on this point. Therefore, based on the evidence presented to the trial court, we find no abuse of discretion in refusing to grant a new trial. We also find, however, that the affidavits raised a sufficient inference of possible juror misconduct to require an evidentiary hearing. The condition of the plaintiff’s heel was hotly contested and was the pivotal issue in the case; the alleged out-of-court statement directly concerned this crucial matter. While we are aware of the difficulties the jurors may face in attempting to recall events which occurred years ago, and while we are reluctant to again interrupt the jurors’ lives and involve them in additional court proceedings, those considerations do not outweigh the need to insure that the parties received a trial untainted by bias or extraneous information.

Accordingly, we vacate the judgment in favor of the defendant and remand to the trial court for an evidentiary hearing. (See Department of Transportation v. Graham (1985), 130 Ill. App. 3d 589, 594, 474 N.E.2d 810, 813; Brown v. Johnson (1978), 60 Ill. App. 3d 76, 80, 378 N.E.2d 757, 760.) If the trial court finds that juror Mann engaged in improper discussions concerning the case outside of the courtroom, or that the substance of any out-of-court statements was communicated to the jury during their deliberations, and the court further finds that the plaintiff was thereby prejudiced (see People v. Harris (1988), 123 Ill. 2d 113, 132, 526 N.E.2d 335, 342 (“[a] verdict will not be set aside where it is obvious that no prejudice resulted from a communication to the jury”), cert, denied (1988), 488 U.S. 902, 102 L. Ed. 2d 240, 109 S. Ct. 251, then a new trial shall be ordered. If, on the other hand, the trial court finds that there was no improper discussion of the case, and that no improper out-of-court statements were related to the jury during their deliberations, or that the plaintiff suffered no prejudice, then the judgment in favor of the defendant should be reinstated.

Vacated and remanded with directions.

RARICK, J., concurs.

JUSTICE GOLDENHERSH,

concurring in part and dissenting in part:

I respectfully dissent as to the question of conflict between instruction No. 16 and Illinois Pattern Jury Instructions, Civil, No. 105.05 (2d ed. 1971). As to the other aspects of the majority’s opinion, I concur.

The majority correctly delineates the potential conflict between the two instructions concerning parental authorization of medical procedures, but resolves it erroneously, in my view. It is a standard principle of interpretation that the particular will control over the general. (See Bray v. Industrial Comm’n (1987), 161 Ill. App. 3d 87, 513 N.E.2d 1045.) In this particular situation, the proper interpretation would be to consider section 2 of the Surgical Procedures Act (Ill. Rev. Stat. 1987, ch. 111, par. 4502) as the general and section 608 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 608(a)) as the particular. Since section 608 defines the particular status of “parent” in the situation of a divorced couple with children over whom they can exert custodial control, it would be the predicate in defining that same term as found in section 2. Given those circumstances, plaintiffs’ contention is correct that the sections cited above are in conflict and that the jury was improperly instructed since, in the circumstances of this case, defendants’ instruction No. 16 improperly states the law. Although I agree with the majority that in certain limited circumstances a trial court may amplify or clarify IPI instructions in its discretion (see Balestri v. Terminal Freight Cooperative Association (1979), 76 Ill. 2d 451, 394 N.E.2d 391, cert, denied (1980), 444 U.S. 1018, 62 L. Ed. 2d 648, 100 S. Ct. 671), in this circumstance, the trial court did so in a manner which did not accurately reflect the applicable law. I would therefore reverse and remand for new trial.

       Although there are two plaintiffs and two defendants in this case, in general we will refer to the parties as “plaintiff” and “defendant.”


author: JUSTICE RARICK JUSTICE WELCH,

text:
      In re MARRIAGE OF AMBER R. GABLE, Petitioner-Appellant, and JAMES J. GABLE, Respondent-Appellee.
    Fifth District
    No. 5-89-0568
    Opinion filed November 29, 1990.

      WELCH, J., dissenting.
    Dale F. Choisser, of Burnside, Dees, Johnston & Choisser, of Vandalia, for appellant.
    Mike Reed, of Crain, Cooksey & Veltman, Ltd., of Centraba, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Amber R. Gable appeals from that portion of the judgment of dissolution of marriage to James J. Gable as entered by the circuit court of Fayette County pertaining to the division of marital property and the award of maintenance and attorney fees. We affirm in part, reverse in part and remand this cause for further proceedings.

The parties, Amber and James, were married in March of 1953. In 1985, the parties split the marital residence with each living separately in one half of the house. This arrangement continued up to the time of the hearing on Amber’s petition for dissolution of their marriage. After the hearing, the trial court ordered the marital residence and surrounding 42 acres, valued at $49,000, to be sold at public sale with the net proceeds to be awarded one-half to each party. No debt existed against this property. The trial court also awarded Amber $500 a month in maintenance until the sale of the marital residence. The amount was then to be reduced to $250 a month for as long as James was employed on a regular and continuing basis. James was then working as a correctional officer for the State, earning approximately $24,000 a year. Prior to this employment, James had been self-employed as a farmer and truck driver. James, however, continued to engage in some farming activities with varying amounts of success. Amber, on the other hand, has been, and still is, unemployed since the beginning of the marriage. She did, however, assist James in his farming operations over the years. Amber, now age 56, has no high school degree or training, suffers from various health problems, and has little in the way of nonmarital property. She claims she has had to borrow some $21,000 over the years from her parents in order to pay expenses. James, age 60, also has health concerns, but unlike Amber, also owns, as part of his nonmarital property, an additional 167 acres of farmland. As a further disposition of the marital estate, James was ordered to assume and hold Amber harmless on all debts, excepting the $21,000 loan from Amber’s parents which Amber was ordered to assume herself. Additionally, James was directed to pay $1,000 toward Amber’s attorney fees.

Amber argues on appeal the trial court erred in ordering the marital residence and surrounding acreage be sold and the proceeds divided equally between the parties. She believes, in light of her age, her lack of training and/or income, her health, James’ income potential, the value of his nonmarital property and the length of the marriage, she should have been awarded the marital residence. In other words, Amber contends a disparate division of the marital estate in her favor is warranted in this instance.

In general, the distribution of marital property is a matter that rests within the sound discretion of the trial court. Only when that discretion has been abused will we disturb the distribution. Such an abuse occurs when no reasonable person would take the view adopted by the trial court. (See, e.g., In re Marriage of Korper (1985), 131 Ill. App. 3d 753, 757, 475 N.E.2d 1333, 1336; In re Marriage of Greenberg (1981), 102 Ill. App. 3d 938, 944, 429 N.E.2d 1334, 1339.) We cannot say no reasonable person would take the view adopted here. The only major asset of this lengthy marriage was the house and surrounding acreage. Obviously the parties could no longer share the house, yet they both needed a place to live. The trial court reasonably could have concluded that selling the house and splitting the proceeds was the only practical way to deal with this asset. (See In re Marriage of Smith (1987), 162 Ill. App. 3d 792, 799, 516 N.E.2d 777, 782.) Since both had made substantial contributions to the marriage, the trial court also reasonably could have concluded it would be unfair to award either the house. (See In re Marriage of Miller (1980), 84 Ill. App. 3d 931, 936, 405 N.E.2d 1099, 1104. Cf. In re Marriage of Clearman (1981), 97 Ill. App. 3d 641, 648, 423 N.E.2d 283, 288; In re Marriage of Lloyd (1980), 81 Ill. App. 3d 311, 313, 401 N.E.2d 328, 329.) We therefore find no abuse of the court’s discretion with respect to the disposition of the marital residence and surrounding land. We also note the proceeds from the marital property awarded to James will not meet the marital debts assigned to him.

We do, however, find an abuse of the trial court’s discretion pertaining to the award of maintenance. Section 504 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 504) permits an award of maintenance when one spouse is unable to support himself or herself through appropriate employment or is otherwise without sufficient income. (See In re Marriage of Stallings (1979), 75 Ill. App. 3d 96, 101, 393 N.E.2d 1065, 1068.) Here, the court recognized Amber’s need for maintenance based on her lack of property, employment skills, age and health, but chose to reduce the amount of support once the marital residence was sold. While it is true once the house is sold, Amber will have some capital, she is not required to consume her share of the marital property in order to maintain herself. (See Greenberg, 102 Ill. App. 3d at 942, 946, 429 N.E.2d at 1338, 1341; Lloyd, 81 Ill. App. 3d at 313, 401 N.E.2d at 330.) Prior to the dissolution James was giving Amber approximately $600 a month for her support, even at times when his farming endeavors were unsuccessful. Once the house is sold, Amber’s expenses will be even higher, yet James’ maintenance obligations will be reduced to $250 a month. Such a reduction can only leave Amber without adequate support to meet her needs in the future. We therefore are compelled to remand this cause for a redetermination of the maintenance award.

Amber next contends the trial court abused its discretion in directing James to pay only $1,000 toward the $4,340 incurred in attorney fees and costs. To justify the allowance of attorney fees, the party seeking relief must show a financial inability to pay them himself or herself as well as the ability of the other spouse to do so. (See In re Marriage of Donahoe (1983), 114 Ill. App. 3d 470, 477, 448 N.E.2d 1030, 1035; Miller, 84 Ill. App. 3d at 937, 405 N.E.2d at 1104.) Financial inability exists when payment would strip that person of his or her means of support and undermine his or her economic stability. (See In re Marriage of Pitts (1988), 169 Ill. App. 3d 200, 210, 523 N.E.2d 664, 670; In re Marriage of Derning (1983), 117 Ill. App. 3d 620, 626, 453 N.E.2d 90, 94.) Clearly, Amber has shown a financial inability to pay her fees as compared to that of James. Amber is unemployed and virtually unemployable. James, on the other hand, not only has full-time employment with the State, he also has his farming business. The disparate economic circumstances of the parties dictates a greater award of the fees to Amber. We believe an award of less than one-fourth of the total amount constituted an abuse of discretion in this instance, particularly in light of the trial court’s order calling for reduced maintenance upon the sale of the marital residence. We therefore reverse and remand this aspect too for a redetermination of the proper amount of an award for attorney fees. See Pitts, 169 Ill. App. 3d at 210, 523 N.E.2d at 670. See also Smith, 162 Ill. App. 3d at 800, 516 N.E.2d at 783.

For her final point on appeal, Amber argues the court’s order directing her to assume the debt of $21,000 owed to her parents is against the manifest weight of the evidence. We disagree. Amber simply did not present sufficient evidence to show that in fact such a debt existed. She presented no itemized listing of what had been borrowed over the years and was only able to present three cancelled checks totalling some $3,600 to support her claim. James testified he never asked her to borrow any money from her parents and concluded, in fact, that no such debt existed. The trial court reasonably could have believed if such payments were made, they were intended as gifts. Because Amber did not prove otherwise, any “debt” therefore was reasonably assigned to her. When faced with conflicting evidence, determination of the credibility of witnesses is for the trier of fact. (See Greenberg, 102 Ill. App. 3d at 944, 429 N.E.2d at 1339; Stallings, 75 Ill. App. 3d at 100, 393 N.E.2d at 1067-68.) We cannot say the trial court’s judgment in this instance is against the manifest weight of the evidence.

For the aforementioned reasons, we affirm that portion of the judgment of the circuit court of Fayette County consisting of the disposition of marital property and the assigning of marital debts. We reverse and remand, however, those portions of the judgment pertaining to the award of maintenance and attorney fees for reconsideration consistent with the views expressed in this opinion.

Affirmed in part; reversed and remanded in part.

GOLDENHERSH, J., concurs.

JUSTICE WELCH,

dissenting:

I respectfully disagree with that part of the majority’s opinion which reverses the award of maintenance and attorney fees and remands the case for reconsideration of these awards. The appellate standard of review of dissolution of marriage and property distribution orders is abuse of discretion, and the question is not whether the reviewing court agrees with the trial court but, rather, did the trial court, in the exercise of its discretion, act arbitrarily without the employment of conscientious judgment or, in view of all the circumstances, exceed the bounds of reason and ignore recognized principles of law so that substantial injustice resulted? In re Marriage of Smith (1984), 128 Ill. App. 3d 1017,1024, 471 N.E.2d 1008,1015.

The evidence in this case indicated that the only real marital property consisted of the parties’ residence located on 42 acres of farmland, which was stipulated to be worth $49,000. The court ordered the marital property sold with net proceeds to be divided equally between the parties. Prior to the sale of the house, husband was ordered to pay maintenance of $500 per month, and after the sale, $250 per month. Husband was also ordered to assume the entire marital debt of $28,700 and certain nonmarital debts relating to his inheritances. Finally, he was ordered to pay $1,000 of wife’s attorney fees. The husband was awarded his nonmarital property, 167 acres of inherited farmland, but the evidence showed husband took considerable business losses on this property which was leased, in both 1987 and 1988.

Husband is 60 years old and suffers from a heart murmur and diabetes. He has been employed for the last five years as a correctional officer for the State of Illinois and earns $24,000 per year. The evidence showed that after husband pays his reasonable living expenses his net income will be $161 per month. It is apparent that husband will have to severely restrict his personal expenses or obtain additional employment in order to pay the $500 per month in maintenance the majority seems to believe he can afford to pay.

The financial circumstances of both parties are grim; both are in poor health and, under the order of the court below, neither has income and/or assets sufficient to provide for his or her reasonable needs. In my opinion the majority placed too much emphasis on husband’s award of his nonmarital farming property in finding that the trial court abused its discretion by reducing the award of maintenance to $250 per month following sale of the house and by awarding only one-fourth of wife’s total attorney fees. I believe the maintenance and attorney fees awards are substantiated by the evidence herein, the result reached by the court below was fair and just to both parties, and accordingly the order of the circuit court of Fayette County did not constitute an abuse of discretion.


author: PRESIDING JUSTICE LEWIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GLENN T. HOWARD, Defendant-Appellee.
    Fifth District
    No. 5—89—0590
    Opinion filed November 30, 1990.

      John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle., Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Rosemary D. McGuire, of Brennan, Cates & Constance, P.C., of Belle-ville, for appellee.
   PRESIDING JUSTICE LEWIS

delivered the opinion of the court:

The State appeals the circuit court’s order granting the defendant’s, Glenn T. Howard’s, motion to dismiss for violating his right to a speedy trial under the statute. (Ill. Rev. Stat. 1989, ch. 38, par. 103— 5.) On appeal, the only issue raised by the State is that the circuit court abused its discretion in determining the delay to be attributed to the defendant.

In order to consider whether the charges against the defendant were properly dismissed, a statement of the pertinent facts is necessary. On June 1, 1988, the defendant was arrested for two charges of disorderly conduct. (Ill. Rev. Stat. 1987, ch. 38, par. 26 — 1(a)(5).) On both of the arrest tickets it was stated that, on May 26, 1988, the defendant “knowingly had [Y.S.,] who is seven years of age, remove her clothes for a lewd purpose, or unlawful purpose of looking for sexual arousal of said defendant.” The defendant posted bail for the two offenses on June 8, 1988. David Rand, an attorney, filed an entry of appearance and a demand for a jury trial for the disorderly conduct charges on July 5, 1988; however, on July 11, 1988, Judy Cates, another attorney, filed an entry of appearance, a plea of not guilty and a demand for a jury trial pursuant to sections 103 — 5(a) and (b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, pars. 103 — 5(a),(b)). A motion for substitution of counsel was filed by the defendant on July 20, 1988, and in this motion, the defendant asked that he be permitted to substitute Judy Cates as his attorney of record in lieu of David Rand. An order granting this motion was entered that same day.

Subsequently, on or about July 21, 1988, the State filed a criminal information in which the defendant was charged with four counts of battery. The charges were based upon the same facts and circumstances of May 26, 1988, which formed the disorderly conduct charges, but involved four different victims: Y.S., M.G.B., M.B., and H.M. Upon filing of the information with the circuit clerk, the clerk assigned each count of the criminal information with a different case number and created a file for each. Count I of the information was assigned case number 88CM4177 and charged the defendant with the offense of battery (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 3(a)(2)) for touching Y.S. when he attempted to remove her clothing. Count II of the information was assigned case number 88CM4178, and in this count, the defendant was charged with the offense of battery for squeezing the buttocks of M.G.B. with his hands. Count III became case number 88CM4179 and charged the defendant with the offense of battery for placing his hands on the vagina of M.B. Count IV, which became case number 88CM4180, charged the defendant with the offense of battery for placing his hands on the vagina of H.M. The defendant posted bond for these offenses on July 22, 1988. On July 25, 1988, Judy Cates filed another entry of appearance, a plea of not guilty, and a demand for a jury trial pursuant to sections 103 — 5(a) and (b) for these offenses. (Ill. Rev. Stat. 1987, ch. 38, pars. 103 — 5(a), (b).) The defendant also filed a motion for discovery on this date. On July 22, 1988, the court entered an order setting the battery charges for trial on September 12, 1988. (We note that the caption of this order refers to the arrest warrant number only and then states this is for five counts. Since there were only four counts under the arrest warrant number, it is unclear whether the two disorderly conduct charges were to proceed to trial that same day.) A hearing for all pending motions on all six charges, i.e., the disorderly conduct charges and the battery charges, was set for August 19,1988.

On August 17, 1988, the defendant’s counsel filed a written motion for continuance of all of the charges pending against the defendant. She asked that these cases be continued as she was pregnant, and on the advice of her doctor, she was to discontinue working until her pregnancy had terminated. The court granted the motion for continuance, and in the court’s order, the pending cases were continued until January 4,1989, at which time a status hearing was to be held.

No further motions were filed, and on January 4, 1989, the status hearing was held on the pending charges. The record does not include a transcript of this hearing; however, the order entered on that date set forth the schedule for the proceedings on the charges. The order stated that all pending motions were to be heard on February 10, 1989; that a pretrial conference was to be held on March 1, 1989; and that the defendant was to be brought to trial on March 13,1989.

On January 30, 1989, the State filed an amended criminal, information in which the defendant was charged with four counts of battery and four counts of criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 15(a)(2)). The four counts of battery of the amended information were substantially the same as the previous four counts of battery with which the defendant was charged, i.e., the charges were based upon the same facts and circumstances of May 26, 1988, and were against the same four victims. The criminal sexual abuse charges also stemmed from the events of May 26, 1988, and included the same victims as the battery offenses. Again, as with the original information, the circuit clerk assigned each count a separate case number and created a separate file for each. The counts of the amended information were given the following case numbers: (1) count I of the amended information, which was the battery charge involving M.B., was assigned case number 89CM0451, (2) count II, which was the criminal sexual abuse offense involving M.B., was assigned case number 89CM0459, (3) count III charged the defendant with the offense of battery against M.G.B. and was assigned case number 89CM0460, (4) count IV involved M.G.B. and charged the defendant with criminal sexual abuse and was assigned case number 89CM0461, (5) count V, in which the defendant was charged with battery and which involved Y.S., was assigned case number 89CM0462, (6) count VI, which was the criminal sexual abuse involving Y.S., was assigned case number 89CM0463, (7) count VII, in which the defendant was charged with battery against H.M., was assigned case number 89CM0464, and (8) count VIII, which involved H.M. and charged the defendant with criminal sexual abuse, was assigned case number 89CM0465. At the hearing at which the amended information was presented, the State sought no additional bail, and the defendant’s counsel asked that her entry of appearance and plea of not guilty filed in the original information be carried over for the amended information. Additionally, the assistant State’s Attorney stated that he was filing this information as an amendment of the original information.

On February 10, 1989, an order was entered dismissing the four original counts of battery against the defendant (cases numbered 88CM4177, 88CM4178, 88CM4179, and 88CM4180) on the motion of the State. On February 22, 1989, the State filed a motion for continuance in which the State asked that the trial date of March 13, 1989, be continued as the State would not be available on that date. The defendant objected to this continuance. As a result of the State’s motion to continue, the court granted the continuance over the defendant’s objection and set the cases for trial on May 22, 1989. The State also filed a motion for discovery on March 6, 1989.

When the charges against the defendant came on for trial on May 22, 1989, the defendant’s counsel made an oral motion to dismiss the charges for the State’s failure to give the defendant a speedy trial in violation of the statute. The defendant was given leave to file a written motion to dismiss, which was done on May 31, 1989. Also on May 22, 1989, the judge stated that he had met the four victims involved in the charges in January 1989; therefore, he recused himself from the case.

On May 23, 1989, the defendant again presented his oral motion to dismiss to a new judge. At this hearing, the only evidence presented was the testimony of Rosemary McGuire, an attorney who had appeared in the defendant’s counsel’s stead at the hearing on the defendant’s motion to continue on August 19, 1988, at the status hearing on January 4, 1989, and at the hearing on the State’s motion to continue. She testified that at the status hearing, all the pending charges against the defendant were to be set for hearings for motions, a pretrial conference and trial; however, at the time of this hearing, no motions were pending. She stated that on January 4, 1989, the defendant was ready to proceed to trial and she asked for a trial date. The circuit clerk offered the trial date of March 13, 1989. McGuire denied that she agreed to a continuance to the March 13, 1989, trial date. On May 31, 1989, an order was entered granting the defendant’s motion to dismiss all of his pending charges. In the May 1989 order, the court found that the time for a speedy trial began to run for the disorderly conduct charges on July 6, 1988, and ran until August 17, 1988, the time of the filing of the defendant’s motion for continuance, which totalled 43 days. The defendant’s motion for continuance suspended the time for speedy trial purposes, until January 4, 1989. The court concluded that after January 4, 1989, and until the time of trial on May 23, 1989, the defendant had done nothing to occasion a delay of the trial. The court determined that the time from January 4, 1989, onward was attributable to the State, a time period equalling 139 days. Since the time on the disorderly conduct charges which was attributable to the State totalled 182 days, well beyond the 160-day statutory requirement, the court dismissed those charges. With regard to the battery charges filed on or about July 21, 1988, the court determined that the time on these charges began to run on July 26, 1988, and again went to the time of the defendant’s request for continuance on August 18, 1988, which time period equalled 23 days. The court again attributed the time of the defendant’s continuance, from August 18, 1988, until January 4, 1989, to the defendant. The remaining time, from January 5, 1989, until May 23, 1989, the court attributed to the State, for a time period of 139 days. The court further found that the new charges filed on January 30, 1989, related back to the original information of July 1989. Based on the foregoing calculations, the court determined that the time period attributable to the State for the battery charges and the criminal sexual abuse charges totalled 162 days. Because the time period was beyond that required by the statute, the court likewise dismissed the battery and the criminal sexual abuse charges.

On appeal, the State does not dispute the time period attributed to it up until the date of the defendant’s filing for a continuance. The State restricts its argument to the amount of time attributable to defendant regarding the time period from January 4, 1989, onward. The State contends that additional time should be attributed to the defendant, i.e., the time from January 4, 1989, to March 13, 1989, as the defendant’s request for a continuance did not run until a specified trial date. In other words, the State appears to argue that if a defendant requests a continuance, and there is no specified court date as a result of the continuance, then the defendant must be attributed all the time resulting from the date of the continuance until the cause comes to trial. Alternatively, the State argues that the defendant agreed to the continuance from January 4, 1989, to March 13, 1989. Since the State only disputes the 139 days attributed to the State after January 4,1989, we will confine our analysis to that time period.

In determining whether a defendant has been denied a speedy trial, section 103 — 5(b), which is the portion of the statute applicable here, states that a defendant out on bond must be brought to trial within 160 days from the date he makes a written demand for a speedy trial. (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5(b).) Subsection (f) of section 103 — 5 further provides that the 160-day period will be suspended for the time of a delay occasioned by the defendant. Ill. Rev. Stat. 1987, ch. 38, par. 103-5(f).

A delay attributable to the defendant which suspends his right to a speedy trial can result from a defendant filing a motion, from a delay to which the defendant’s affirmative acts contributed, or from a continuance to which the defendant has expressly agreed. (People v. Grant (1982), 104 Ill. App. 3d 183, 432 N.E.2d 1129.) In computing the period of delay, the first day is excluded and the last day is included in the calculations. (Grant, 104 Ill. App. 3d 183, 432 N.E.2d 1129.) The burden of proving that his right to a speedy trial has been violated rests upon the defendant; however, where the record is silent or where the defendant fails to object to a request by the State for a delay, the delay cannot be attributed to the defendant. (People v. Reimolds (1982), 92 Ill. 2d 101, 440 N.E.2d 872.) Additionally, whether a delay has been occasioned by a defendant is determined by the circuit court and much deference must be given to the court’s determination. On appeal, absent an abuse of discretion by the circuit court, the circuit court’s decision will be upheld. Reimolds, 92 Ill. 2d 101, 440 N.E.2d 872.

In the instant case, we find that the circuit court did not abuse its discretion in attributing the delay from January 4, 1989, onward to the State. The order of the court granting the defendant’s continuance specified that a status hearing would be held on January 4, 1989; thus, the continuance of the defendant was to run only until this specified time. McGuire’s testimony given on May 23, 1989, revealed that the defendant appeared at the status hearing on January 4, 1989, and that he was prepared to go to trial at any time thereafter. The record is silent as to whether the defendant or the State made a motion for continuance on January 4, 1989, as there was no transcript of the January 4, 1989, status hearing included in the record, and it cannot be concluded that the defendant expressly agreed to a continuance until March 13, 1989. The defendant neither filed any motions nor did any other affirmative act after January 4, 1989, which would delay his going to trial on March 13, 1989. If the defendant had been brought to trial on March 13, 1989, there would have been no difficulty with the defendant being brought to trial within the 160 days. In fact, the record shows that it was the State who was the party not ready to proceed. The State filed additional charges against the defendant on January 30, 1989 (i.e., the State filed substantially duplicate battery charges and the additional charges of criminal sexual abuse in the amended information filed on this date); the State requested a continuance on February 22, 1989; and the State filed a motion for discovery on March 3, 1989. These facts lead to the conclusion that the ensuing delay after January 4, 1989, was attributable to the State.

The State relies on People v. Siglar (1971), 49 Ill. 2d 491, 274 N.E.2d 65, to support its contention that a defendant is to be attributed all of the time after a continuance whenever a trial date has not been specified. We do not interpret Siglar to stand for this proposition, for to do so would defeat the statutory requirement for a speedy trial. Siglar simply states that indefinite continuances are an anathema to the law, and under the circumstances presented in that case, i.e., where the defendant generally continued his case indefinitely, then the defendant is to be attributed with that time. In the case sub judice, the defendant did not generally continue his cases to an indefinite date, but he asked that his cases be continued to January 4, 1989, a specific time frame. Thus, Siglar is inapposite to this case. Where a continuance is for a set period of time, the time following that definite period cannot be attributed to the defendant simply because a specified trial date has not yet been set.

Furthermore, where, as here, new and additional charges were filed against the defendant, and it is clear that the additional charges arose out of the same facts and circumstances as the original charges and were known to the State at the time of the filing of the original charges, the time in which the trial must begin on the additional charges is subject to the same statutory limitations as the original charges. (People v. Rodgers (1982), 106 Ill. App. 3d 741, 435 N.E.2d 963; People v. Williams (1981), 94 Ill. App. 3d 241, 418 N.E.2d 840.) Additionally, previous continuances obtained on the original charges cannot be attributed to the defendant on the additional charges as the new charges were not before the court when the continuances were obtained. (Williams, 94 Ill. App. 3d 241, 418 N.E.2d 840.) The speedy trial provisions on the new and additional charges filed by the State in the instant case began to run as of the date of the original battery charges even though these charges were dismissed after the filing of the amended information. The State cannot avoid a speedy trial violation by dismissing and recharging a defendant where it is clear, as it is here, that the new battery offenses charged were substantially the same charges as were originally filed. (See Rodgers, 106 Ill. App. 3d 741, 435 N.E.2d 963.) Therefore, under the case law, the time period under the statute had more than run for the charges of criminal sexual abuse which were filed on January 30, 1989, as the continuance from August 17, 1988, until January 4, 1989, was not applicable to those charges.

For the foregoing reasons, the judgment of the circuit court of St. Clair County dismissing the charges against the defendant for failure to bring him to trial within 160 days is affirmed.

Affirmed.

HOWERTON and GOLDENHERSH, JJ., concur.


author: PRESIDING JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD R. TOLLIVER, Defendant-Appellant.
    Fifth District
    No. 5-88-0585
    Opinion filed December 6, 1990.

      Daniel M. Kirwan and Michelle A. Zaliski, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Kathryn Dobrinic, State’s Attorney, of Hillsboro (Kenneth R. Boyle, Stephen E. Norris, and Matthew E. Franklin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Defendant Donald Tolliver was charged in the circuit court of Montgomery County with possession of a car title without a complete assignment, a Class 4 felony. Tolliver filed a motion to dismiss prior to trial, alleging that the statute was unconstitutional because it did not give adequate notice of what conduct was prohibited. The motion was denied.

At Tolliver’s subsequent bench trial, Larry Schmidt, an investigator for the Secretary of State Police, testified that Thomas Murphy told him that he purchased a car from Tolliver for $200, but shortly thereafter noticed that the title had been signed by David Hayes, not Tolliver. Murphy returned to Tolliver’s address within one hour, intending to get Tolliver’s signature on the title or his money back, but Tolliver was gone. When Murphy eventually located Tolliver, Tolliver told him that he no longer had the $200 because he had spent it on beer and that Murphy should simply put his name on the title.

On cross-examination, Schmidt admitted the title does not define or explain complete assignments, nor is there any warning that failure to assign the title to a specific person is a violation of the law. Schmidt also testified that he did not contact Hayes to find out to whom Hayes had transferred title, but the State admitted that there was no allegation that Tolliver stole the car or that he otherwise had been attempting to perpetrate a fraud on anyone.

The trial court held that while it was not clear on the face of the title what a person’s obligation was, when the purpose of a title is considered, there was no valid lawful reason for not completing it. The only reason a person would not complete it, the court said, was to avoid paying sales tax. Tolliver was found guilty and sentenced to 30 months’ conditional discharge, to pay a $500 fine, to perform 120 hours of community service, to get his GED, to remain in school or employed, and to refrain from selling used cars. Tolliver appeals.

Tolliver’s first challenge to the constitutionality of the statute is that the offense of possessing a title without a complete assignment is punished more harshly than similar or related offenses requiring a greater degree of culpability. A sentencing scheme violates the proportional penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11) where conduct creating a less serious threat to the public health and safety than other conduct is punished more harshly. (People v. Wagner (1982), 89 Ill. 2d 308, 433 N.E.2d 267.) Tolliver maintains while section 4 — 104(b)(1) of the Illinois Vehicle Code makes possession of a certificate of title without complete assignment a Class 4 felony, section 4 — 105.1, for example, makes deletion or falsification of information on a title with intent to defraud a Class A misdemeanor. (Ill. Rev. Stat. 1987, ch. 95½, pars. 4 — 104(b), 4 — 105.1.) In the former case, Tolliver maintains, no intent to defraud is required and there are many instances where a certificate of title may come into someone’s possession without a complete assignment without any criminal intent. In the latter case, however, intent to defraud is required and there are few, if any, legitimate reasons a person would have for deleting or falsifying information on a certificate of title.

Contrary to Tolliver’s assertions, as the State points out, section 4 — 105.1 makes illegal the surrender with intent to defraud of a certificate of title in exchange for a new certificate of title which results in the alteration, falsification, or deletion of certain information. Actual alteration of a certificate of title or possession thereof is a Class 2 felony and is punished more harshly than mere possession of a title without complete assignment. (Ill. Rev. Stat. 1987, ch. 95½, pars. 4— 104(a)(3), (b)(2), 4 — 105(a)(1), (b).) We are not persuaded that possession of a title without a complete assignment is less of a threat to public health, safety or welfare than surrendering a title with the intent to fraudulently obtain a new title with altered, falsified, or deleted information and therefore reject Tolliver’s first challenge to the constitutionality of the statute. The elements of the offenses Tolliver offers for comparison are not the same, and it is entirely plausible that the legislature considered the evil sought to be remedied by section 4 — 104(a)(2) to be greater than that punished by section 4 — 105.1, and it is not for this court to pass judgment on that determination.

Tolliver’s next challenge is that as a matter of due process, the statute is overbroad and therefore unconstitutional. The legislative exercise of police power is constitutional where the statute in question bears a reasonable relationship to the interest sought to be protected and where the method used to protect that interest is also reasonable. (People v. Wick (1985), 107 Ill. 2d 62, 481 N.E.2d 676.) In Wick, our supreme court held that an aggravated arson statute was unconstitutionally overbroad because it did not require an unlawful purpose and so punished innocent as well as culpable conduct. (Wick, 107 Ill. 2d at 67-68, 481 N.E.2d at 678.) Likewise, Tolliver argues, section 4 — 104 requires no culpable intent and therefore punishes innocent as well as culpable conduct.

We must first determine what interest the legislature sought to protect and further, and then determine whether the statute reasonably meets that goal. In People v. Morris (1990), 136 Ill. 2d 157, 554 N.E.2d 235, our supreme court found that section 4 — 104 of the Illinois Vehicle Code was part of a general statutory scheme entitled “ANTI-THEFT LAWS” and that its purpose was to protect automobile owners against theft and the general public against crimes involving stolen automobiles. (Morris, 136 Ill. 2d at 162, 554 N.E.2d at 236-37, citing People v. One 1979 Pontiac Grand Prix Automobile (1982), 89 Ill. 2d 506, 433 N.E.2d 1301.) The legislative history of section 4— 104(a)(2) also indicates that it was directed primarily at “chop shops” and professional car theft operations; however, the court in People v. Bryant (1989), 128 Ill. 2d 448, 539 N.E.2d 1221, made it clear that legislative history should not be looked to to determine the purpose of a statute where the language of the statute was clear. We therefore examine section 4 — 104(a)(2) to determine whether it reasonably advances the legislative intent of protecting the general public against crimes involving stolen automobiles.

Section 4 — 104(a)(1) makes the unauthorized possession of a certificate of title, blank or otherwise, a Class 4 felony. Section 4— 104(a)(2) must be directed at otherwise authorized possession of a certificate of title without a complete assignment. To interpret it otherwise would, in light of section 4 — 104(a)(1), render it mere surplusage. Tolliver argues that section 4 — 104(a)(2), because it requires no criminal intent, punishes innocent conduct. We agree. We can conceive of numerous circumstances where a person might hold a certificate of title without complete assignment with no intention of committing any crime, including one involving stolen motor vehicles. As worded, the breadth of the statute is far greater than needed to achieve the purpose of section 4 — 104 and, as such, is unconstitutional.

For the foregoing reasons, the judgment of the circuit court of Montgomery County is reversed.

Reversed.

HARRISON and HOWERTON, JJ., concur.