author: JUSTICE CAMPBELL

text:
    CHARLES W. HOTZE, Plaintiff-Appellant, v. NORBERT A. DALEIDEN et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—89—3221
    Opinion filed February 10, 1992.
    Modified on denial of rehearing June 1,1992.

      Robert W. Karr & Associates, Ltd., and David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky, of counsel), for appellant.
    Arnstein & Lehr, of Chicago (Arthur L. Klein and Richard K. Hellerman, of counsel), for appellee Norbert A. Daleiden.
    Johnson & Bell, Ltd., of Chicago (Thomas H. Fegan, William V. Johnson, Robert L. Nora, and Charles P. Rantis, of counsel), for other appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Charles W. Hotze, appeals from an order granting summary judgment in favor of defendants Norbert A. Daleiden and the law firms of Hosier, Niro & Daleiden, Ltd., and Niro, Daleiden & Jager, Ltd. (Daleiden or defendants), as to count VI of plaintiff’s seventh amended complaint. On appeal, plaintiff contends that the trial court erred in granting defendant Daleiden’s motion for summary judgment. For the following reasons, the judgment of the trial court is reversed and remanded for further proceedings.

The record sets forth the following facts relevant to this appeal. In 1984, plaintiff filed a lawsuit against defendants alleging, inter alia, that the legal fees charged by defendants were excessive and unreasonable. From 1978 through May 1984, plaintiff engaged attorney Daleiden for professional legal services on his behalf and for certain corporations in which plaintiff was a principal shareholder. In his seventh amended complaint, plaintiff alleged that from approximately April 1972 through January 1981 he suffered from pheochromocytoma, a tumor of the adrenal gland, which impaired his physical and mental condition and affected his business judgment and general comprehension. As a result of his diminished mental capacity, plaintiff entered into various business transactions to his detriment. Daleiden instituted several lawsuits on plaintiff’s behalf to recover plaintiff’s losses incurred in these business transactions.

In counts I through V, plaintiff alleged that defendants breached the fiduciary duties owed to him. Plaintiff alleged that due to his diminished mental capacity, he was unable to fully understand what legal services were necessary and actually performed by defendants, and that he was prevented from understanding the nature and extent of defendants’ charges and fees for legal services allegedly rendered.

In count VI, plaintiff alleged that from April 5, 1973, through May 27, 1983, he engaged the medical services of Dr. Dongsuk Kim for various medical complaints. According to count VI, the tumor on plaintiff’s adrenal gland was not diagnosed until December 25, 1980, and was not removed until January 5,1981.

Plaintiff alleged that Dr. Kim had mishandled his medical condition and plaintiff wanted a medical malpractice suit filed on his behalf against Dr. Kim. Plaintiff alleged that in November 1982 he met with Daleiden in his office and at that time directed Daleiden to file a lawsuit against Dr. Kim. Daleiden responded that he did not handle medical malpractice lawsuits. Plaintiff alleged that he then specifically directed Daleiden to retain the services of a malpractice attorney and to consult with him on the matter. Plaintiff alleged that he wanted Daleiden to participate in the medical malpractice case against Dr. Kim since plaintiff had paid Daleiden and his firm considerable money and since Daleiden knew the facts of plaintiff’s medical condition.

Plaintiff alleged that he continued to meet with Daleiden to discuss other legal matters and continued to ask Daleiden if he had found a lawyer to handle the action against Dr. Kim. Plaintiff alleged that Daleiden responded each time that he had not yet found suitable counsel but that he would do so.

Plaintiff alleged that in September 1983 he again asked Daleiden if counsel had been retained for the malpractice case. Daleiden responded that plaintiff probably did not have grounds for a suit against Dr. Kim and that the statute of limitations had probably expired.

In count VI, plaintiff alleged that defendants committed “legal malpractice” by (a) negligently allowing the statute of limitations to run by not obtaining an attorney; (b) failing to refer plaintiff to a medical malpractice attorney when Daleiden knew he did not have the experience to handle medical malpractice cases; and (c) failing to advise plaintiff of the status of his claim.

Defendants moved for summary judgment on the ground that there is no evidence of an agreement between the plaintiff and Daleiden that Daleiden was to find another attorney to file a lawsuit against Dr. Kim. Defendants contended that without evidence of such an agreement, count VI fails as a cause of action. Defendants argued that both plaintiff’s and Daleiden’s deposition testimony support the conclusion that no agreement existed.

Following a hearing, the trial court entered summary judgment in favor of defendants, concluding that there was no attorney-client relationship between plaintiff and Daleiden as to the medical malpractice suit. In reaching its decision, the trial court noted that according to statements purportedly made by plaintiff in his deposition, plaintiff wanted Daleiden to handle the case. These statements will be discussed below as necessary. Plaintiff appeals from the order granting summary judgment.

Plaintiff argues that the trial court erred in its application of the law to the facts of the case. Plaintiff contends that the proper focus of the motion was whether or not a disputed issue of material fact exists as to whether an attorney-client relationship existed, not whether an attorney-client relationship existed. Section 2 — 1005(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c)), which sets forth the requirements for a grant of summary judgment, provides, in relevant part:

“The judgment sought shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Defendants argue that the trial court properly found on summary judgment that no attorney-client relationship existed.

In order to survive a motion for summary judgment, the non-moving party must come forward with evidentiary material that establishes a genuine issue of fact. (Salinas v. Chicago Park District (1989), 189 Ill. App. 3d 55, 545 N.E.2d 184.) Nevertheless, because summary judgment is a drastic method of terminating litigation, the movant’s entitlement must be free from doubt. (Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 233, 564 N.E.2d 778, 780.) Accordingly, the court must construe the evidence strictly against the movant and liberally in favor of the nonmoving party. Logan, 139 Ill. 2d at 234, 564 N.E.2d at 780.

Plaintiff argues that the pleadings, his own deposition testimony and the deposition testimony of Daleiden show disputed issues as to material facts. In support thereof, plaintiff submits quotations from his deposition testimony and the deposition testimony of Daleiden as the testimony appeared summarized in defendants’ motion and plaintiff’s response. Plaintiff failed, however, to include in the record on appeal either complete transcripts of the depositions referenced or any actual deposition excerpts. The record also indicates that the parties failed to provide the trial court with the complete deposition transcripts for consideration on the motion for summary judgment.

It is the duty of the appellant to present a complete record on appeal so the reviewing court will be fully informed regarding the issues in the case. (International Amphitheatre Co. v. Vanguard Underwriters Insurance Co. (1988), 177 Ill. App. 3d 555, 532 N.E.2d 493.) A reviewing court will not consider matters which are not contained in the record. (Vanguard, 177 Ill. App. 3d at 564.) While it is required that this court take the deposition testimony in its entirety (Riley v. Physicians Weight Loss Centers, Inc. (1989), 192 Ill. App. 3d 23, 548 N.E.2d 811), as the record does not show that the parties objected to the procedure of submitting merely quoted portions of testimony, and as the testimony summaries presented in plaintiff’s response are not inconsistent with the testimony summaries presented in defendants’ motion, this court may accept and consider for purposes of review the facts set forth therein. See Murphy v. Chestnut Mountain Lodge, Inc. (1984), 124 Ill. App. 3d 508, 464 N.E.2d 818.

Plaintiff argues that the facts, as shown through the following deposition excerpts, reveal he met with Daleiden and asked him to handle the medical malpractice case:

“Q. Do you recall — I am now asking about 1982. Do you recall the dates or times of any meetings with Mr. Daleiden in 1982 where the subject of Dr. Kim was discussed?
A. Yes.
Q. Please relate for me.
A. In November, either before or after Thanksgiving, I asked Norb to file a suit against Dr. Kim and I believe at that time he told me that he didn’t handle that type of litigation. And I believe my answer to that was he is handling these cases and that if he did not handle it, get somebody who would and he said he would.
* * *
Q. Can you tell us where this conversation took place?
A. In his office.
Q. Was anyone else present?
A. No.”

Defendants respond that the dates upon which the parties discussed the possible filing of a lawsuit against Dr. Kim are irrelevant to the determination as to whether an attorney-client relationship had been created.

The situation in the present case is distinguishable from Mid States Vending Service, Inc. v. C.A.P., Inc. (1977), 45 Ill. App. 3d 947, 360 N.E.2d 448, relied on by defendants. In Mid States Vending, defendant failed to pay on a promissory note. Plaintiff filed a complaint and received a judgment in his favor. Defendant’s pleaded defense to the confirmation of judgment was that the loan arose out of an illegal contract between the parties, and he was therefore not obligated to pay. Subsequently, summary judgment was granted in plaintiff’s favor and defendant appealed on the same grounds.

On appeal, the reviewing court found there was no material factual issue as to the debt due, which was the subject matter of plaintiff’s cause of action, because on its face, the promissory note was silent as to any contract between the parties. The court held that “[fjacts unrelated to the essential elements of the plaintiff’s cause of action are immaterial and regardless of how sharply controverted, their presence in the record will not warrant denial of a motion for summary judgment.” (45 Ill. App. 3d at 949.) By contrast, in the present case, at issue is whether a material question of fact exists as to whether an attorney-client relationship was created between the parties. The meetings between the parties, the dates of these meetings, and the subject matter discussed during these meetings are facts directly relating to the essential element of defendants’ motion: whether an attorney-client relationship was created between the plaintiff and Daleiden.

Plaintiff argues that an attorney-client relationship is further evidenced by the following deposition excerpts:

“Q. Mr. Hotze, did you ask Mr. Daleiden to sue Dr. Kim or did you ask Mr. Daleiden to refer you to somebody to sue Dr. Kim?
A. I asked him to handle it because he was handling everything else and he knew the whole picture.
* * *
A. I expected him to handle it. I didn’t want to deal with another attorney. He knew from our numerous conversations what the problem was. I couldn’t see the amount of money I was paying that I should have to go to another attorney to initiate another lawsuit all by myself. It tied in with what we were trying to prove in my mind. I’m not a lawyer.
* * *
Q. Did you tell Norb that you did not want your contemplated malpractice claim given to another attorney because he was handling everything else for you?
A. No.
Q. You never told him that?
A. I wanted — if he had to get another attorney, I wanted him to handle the whole thing through the attorney because their firm did not handle medical malpractice suits.
Q. You wanted him to handle the whole thing through what attorney?
A. Through Mr. Daleiden. In other words—
Q. Go ahead.
A. I wanted Mr. Daleiden to handle it; get the attorney upon [sic] whom we had spoken of before, that he would have to get an outside consultant, whatever you call it.
* * *
Q. So in other words, you asked Norb to handle your malpractice claim against Dr. Kim?
A. With the understanding that he would have a consultant because they didn’t handle those cases. In other words, I wanted Norb to handle the whole thing because he was handling anything I had anyway with the exception of a few minor things.
Q. You made that request of Norb, is that correct?
A. That’s right.
Q. Then what did Norb say to you?
A. He said he would do it.
Q. He said he would accept your request?
A. It’s a question of interpretation. He said he would do it.
Q. Do you recall what he specifically said to you?
A. Just that. That, okay, he would do it.
Q. Do what though?
A. My interpretation, go outside, get an expert on this thing, direct him, the expert, what to do and just do it.
Q. You wanted Norb to direct the expert what to do?
A. Well, yes, give him the assignment.
Q. So then did you want Norb to make a telephone call to another attorney who specialized in medical malpractice to handle your possible claim against Dr. Kim?
A. I do not know what Norb would have done. I wanted him to handle the case and he said he would get somebody. He would have to get an outside consultant.”

In addition, an affidavit attached to plaintiff’s response states that he asked Daleiden to “obtain the services of a lawyer” who handled medical malpractice litigation, and that Daleiden “said he would obtain the medical malpractice lawyer.” Plaintiff contends that his testimony above, and his affidavit, combined with the following excerpts of Daleiden’s deposition testimony, show that an attorney-client relationship existed, and therefore, a genuine issue of fact remains:

“Q. Did you discourage [Hotze] with respect to a potential lawsuit against Dr. Kim based solely upon your seeing Dr. Kim as a potential favorable witness on the issue of diminished capacity, mentally and physically?
A. Not solely.
Q. For what other reasons did you dissuade or discourage Mr. Hotze from pursuing the malpractice case?
A. I am not certain that I persuaded him or dissuaded him not to file against Dr. Kim. My whole feeling about it was I didn’t know anything about the medical malpractice area. If he wanted to talk to somebody in that area, I would refer them to him. If he wanted to talk to a medical malpractice specialist, perhaps other things would have come out from those discussions, but he didn’t want to.
Q. Did he say he did not want to pursue or investigate a claim against Dr. Kim?
A. Well, he talked about it, but never wanted to know who to go to. Starting, as I said in the summer of ’83 and then maybe a couple follow-ups [sic] during ’83, he wasn’t ready. He didn’t want to go to a medical malpractice specialist.”

Defendants argue that Daleiden submitted an affidavit which stated that “At no time *** did Hotze tell me that he wanted to talk to an attorney specializing in medical malpractice.” Defendants contend that Daleiden’s affidavit and all of the above deposition testimony clearly support the conclusion that there was no attorney-client relationship between Daleiden and the plaintiff.

The trial court examined the above deposition excerpts and affidavits in considering defendant’s summary judgment motion. The trial court then addressed whether Daleiden agreed to “get or secure the services of another lawyer for Mr. Hotze.”

The trial court concluded that no attorney-client relationship was created between the parties as to the medical malpractice suit, stating:

“THE COURT: Well, there seems to be no clear evidence that he [Hotze] said: ‘Will you get a lawyer for me to handle this matter?’ and he [Daleiden] said: ‘Yes, I will.’ That is what is lacking here.
* * *
There was the: T would like for you to handle it.’ ‘But my firm doesn’t handle this kind of case.’ Apparently, and now we are speculating, that he wanted him to get someone whom he would supervise.”

Our review of the record indicates that plaintiff presented evidence which creates an issue as to whether Daleiden agreed to obtain an attorney for plaintiff’s proposed medical malpractice claim against Dr. Kim. In light of the contradictory evidence presented in deposition testimony and affidavits, the trial court erred in granting summary judgment in favor of defendants as to count VI. The trial court stated that there was “no clear evidence” that Daleiden agreed to obtain an attorney for plaintiff. Summary judgment should be granted cautiously so that the opponent’s right to trial is not usurped in the presence of conflicting facts and inferences. (Diamond Headache Clinic, Ltd. v. Loeber Motors, Inc. (1988), 172 Ill. App. 3d 364, 526 N.E.2d 599.) Whether Daleiden agreed to obtain an attorney for plaintiff is a question of fact, not properly decided on a summary judgment motion.

Defendants further urge that an exhibit to the summary judgment motion contains a judicial admission by plaintiff that he did not intend to sue Dr. Kim. Defendants attach Daleiden’s letter to plaintiff of May 8, 1984, in which Daleiden advised plaintiff that he was not aware until May 7, 1984, that plaintiff was determined to sue Dr. Kim. Defendants contend that the words, “Who said I had?” written by plaintiff on the face of the letter constitute a judicial admission. Plaintiff counters that he was distressed when he wrote the comment on the letter and intended to write “Who said I hadn’t[?]”

Defendants admit that the trial court did not expressly hold that the exhibit was a judicial admission. Where the record fails to show that a matter urged on appeal was decided by the trial court, the issue is not properly preserved for review. (Morris v. Illinois State Board of Education (1990), 198 Ill. App. 3d 51, 555 N.E.2d 725.)

For the aforementioned reasons, the judgment is reversed and remanded for further proceedings.

Reversed and remanded, as modified.

O’CONNOR and MANNING, JJ., concur.

      On January 31, 1989, defendants filed a motion for summary judgment in response to count IV of plaintiff’s sixth amended complaint. On February 14, 1989, plaintiff filed his seventh amended complaint, wherein count IV of the sixth amended complaint reappeared renumbered as count VI. Defendants’ summary judgment motion was granted as to count VI of the seventh amended complaint and is the subject of this appeal.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    LORA LEE McGRATH, Indiv. and as Adm’r of the Estate of Shirley Spriesch, Deceased, Plaintiff-Appellant, v. EVANGELICAL HEALTH SYSTEMS CORPORATION, d/b/a Christ Hospital, et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—90—2404
    Opinion filed February 7, 1992.
    Modified on denial of rehearing June 5, 1992.

      Joseph C. Owens, P.C., and Andrew J. Creighton, both of Chicago, for appellant.
    Timothy J. Ashe, John N. Seibel, and Robert O. Ackley, all of Cassiday, Schade & Gloor, of Chicago, for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Lora Lee McGrath, appeals from the orders of two different trial judges denying her motions to vacate an order barring her from presenting expert testimony on her complaint for medical malpractice. She also appeals from an order granting summary judgment in favor of defendants Evangelical Health Systems Corporation and Evangelical Hospitals Corporation. Plaintiff argues that the trial judges abused their discretion when they denied her motions to vacate the order and that there was a genuine issue of material fact precluding summary judgment. For the following reasons, we affirm.

The record on appeal discloses the following facts pertinent to our disposition. On August 14, 1985, plaintiff filed a complaint alleging that defendants were liable for medical malpractice for the death of Shirley Spriesch which occurred shortly after she was admitted to defendants’ hospital. Plaintiff also named Dr. Gary Steinecker as a defendant, but he was dismissed from the action based on his affidavit that he did not deviate from the standard of care.

Defendants answered the complaint and denied the material allegations.

The parties took the depositions of two witnesses, Juanita J. Draeger and Virginia Lhotak. Draeger, who was Spriesch’s sister, testified that she was with Spriesch when she was admitted to defendants’ hospital. Spriesch, who was suffering from lung cancer, repeatedly requested oxygen at the hospital which she did not receive. Within a short time, Spriesch’s condition deteriorated and a medical team was summoned. At that point, Draeger was not allowed in the room. Lhotak, who was a patient in the same room as Spriesch, also testified that Spriesch repeatedly requested oxygen but she did not receive it. The medical team attempted to revive Spriesch, but she had died.

On October 28, 1987, defendants propounded interrogatories requesting plaintiff to identify her expert witness under Supreme Court Rule 220 (134 Ill. 2d R. 220). Plaintiff did not respond. On March 3, 1988, August 1, 1988, and September 23, 1988, orders were entered directing plaintiff to comply with outstanding written discovery. On January 17, 1989, an order was entered requiring plaintiff to identify her expert witness. Plaintiff did not comply. Subsequently, on March 10, 1989, a pretrial conference was scheduled before Judge Claude Whitaker, who entered an order requiring plaintiff to identify her expert by March 31, 1989, or she would be barred from presenting expert testimony at trial. Plaintiff again did not respond. On June 5, 1989, Judge Whitaker entered an order barring plaintiff from presenting expert testimony.

On October 18, 1989, plaintiff filed a motion to vacate the June 5, 1989, order barring her from presenting expert testimony arguing that she had retained an expert witness and that a trial would not be scheduled for several years. Plaintiff relied on an affidavit from her attorney, Andrew J. Creighton, who stated that he had been searching for an expert witness since August of 1988 and eventually retained Dr. Stanley Weiner. She also relied on Weiner’s signed statement, which was not notarized, dated July 25, 1989, that “[t]he care administered to [Spriesch] at the hospital was below the standard of care in this community.”

At a hearing on her motion to vacate before Judge Whitaker, plaintiff admitted that he was justified in entering the initial order barring expert testimony but she argued that circumstances had changed because she now had an expert witness. Judge Whitaker denied the motion to vacate on March 9, 1990.

Plaintiff filed a second motion to vacate and scheduled it before Judge Willard J. Lassers. Defendants filed a motion for summary judgment arguing that plaintiff could not meet her burden of proof without expert testimony. In response, plaintiff filed Weiner’s affidavit dated July 24, 1990, which was essentially identical to his previous statement.

At a hearing on both motions before Judge Lassers, plaintiff argued that Judge Whitaker erred in failing to vacate the order because she now had an expert willing to testify and defendant would not be prejudiced because the case would not be scheduled for trial for another year. Judge Lassers offered to transfer the case back to Judge Whitaker for reconsideration but plaintiff stated it would be a futile effort. Judge Lassers found that the circumstances had not changed since Judge Whitaker considered plaintiff’s first motion to vacate and he denied plaintiffs second motion. Based on that decision, defendants’ motion for summary judgment was granted.

Plaintiff now appeals.

Opinion

At the outset, it is important to note that plaintiff does not challenge the June 5, 1989, order barring her from presenting expert testimony at trial. As a result, there is no issue as to whether barring plaintiff’s expert was an appropriate sanction for her failure to comply with the trial court’s orders. On appeal, plaintiff only challenges the subsequent orders entered on March 9, 1990, denying her motion to vacate and on July 26, 1990, denying her second motion to vacate and granting defendants summary judgment.

Plaintiff first argues that the trial judges abused their discretion when they denied her motions to vacate the order barring her from presenting expert testimony. She contends that circumstances had changed since the order was entered because she had obtained an expert willing to testify.

Plaintiff relies primarily on Cometo v. Foster McGaw Hospital (1988), 167 Ill. App. 3d 1023, 522 N.E.2d 117. In Cometo, plaintiff initially disregarded a pretrial judge’s order requiring him to disclose an expert witness. Another order was entered extending the time period and plaintiff disclosed an expert within the required period. Subsequently, however, plaintiff’s expert refused to testify on his behalf. The pretrial judge entered another order requiring plaintiff to disclose an expert but plaintiff failed to comply. The judge then barred plaintiff from presenting expert testimony at trial as a sanction under Rule 220 (134 Ill. 2d R. 220). At some point, the trial was continued an additional six months.

Defendants moved for summary judgment relying on supporting affidavits. In response, plaintiff relied on the affidavit of his previously disclosed expert who had changed his mind and agreed to testify on plaintiff’s behalf. The motion judge struck plaintiff’s affidavit because he was barred from presenting expert testimony and granted defendants’ motion for summary judgment. Plaintiff appealed.

The appellate court reversed, finding that the circumstances had changed because plaintiff’s expert had agreed to testify and the trial was continued for six months. The court noted that plaintiff was barred from presenting expert testimony when, “through no fault of his own,” his disclosed expert refused to testify (Cometo, 167 Ill. App. 3d at 1029, 522 N.E.2d at 121.) As a result, the appellate court found that plaintiff did not act in contumacious disregard of the trial judge’s orders. The court also relied on the fact that plaintiff presented the affidavit of his expert in opposition to summary judgment which showed plaintiff could present evidence of defendants’ negligence. Also, because the trial had been continued for six months, discovery could be completed within the time limits of Rule 220.

In addition to Cometo, plaintiff in this case relies on Kubian v. Labinsky (1988), 178 Ill. App. 3d 191, 533 N.E.2d 22, and Smock v. Hale (1990), 197 Ill. App. 3d 732, 555 N.E.2d 74. Both Kubian and Smock involved situations similar to Cometo where the appellate courts reversed the trial judges’ denials of motions to vacate because plaintiffs did not participate in abusive discovery practices.

Plaintiff argues that similar to Cometo, Kubian, and Smock, “there is nothing in the record to suggest that plaintiff or her attorneys acted at any time in contumacious disregard of the court’s order[s].” We disagree. Five orders were entered between March 3, 1988, and March 10, 1989, requiring plaintiff to comply with written discovery, to respond to Rule 220 interrogatories, and to disclose her expert witness. Plaintiff never complied with those orders. In Cometo, plaintiff disclosed an expert witness in compliance with the trial court’s order and “through no fault of his own” the expert decided not to testify. (Cometo, 167 Ill. App. 3d at 1029, 522 N.E.2d at 121.) In this case, however, plaintiff disregarded the trial judges’ orders and never disclosed an expert witness. Although plaintiff now asserts that she was searching for an expert -witness since August of 1988, during that time, she never indicated to the trial judge that she was having difficulty and needed an extension of time. Instead, she ignored the orders. She did not present an expert until she filed her motion to vacate four months after the order was entered barring her from presenting expert testimony. Contrary to plaintiff’s argument, this case is unlike Cometo, Kubian, and Smock because plaintiff here has exhibited contumacious disregard for the trial judges’ orders. Accordingly, there were no changed conditions in this case which rendered the order barring expert testimony unjust, and the trial judges were well within their discretion in denying plaintiff’s motions to vacate.

Plaintiff also challenges on appeal the entry of summary judgment in defendants’ favor.

• 2 She initially argues that summary judgment was improper because she could prove defendants committed medical malpractice without expert testimony; however, she did not raise this issue in the trial court. The failure to raise an issue in the trial court may result in a waiver of that issue on appeal. (N.W. v. Amalgamated Trust & Savings Bank (1990), 196 Ill. App. 3d 1066, 554 N.E.2d 629.) As a result, this issue will not be considered on review.

She also argues that the depositions of Draeger and Lhotak and the affidavit of Dr. Steinecker established an issue of fact. To prove a medical malpractice case, a plaintiff must present expert testimony that defendant deviated from the applicable standard of care and the deviation resulted in plaintiff’s injury. (Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.) The evidence that plaintiff relies on cannot substitute for expert testimony to support her claim. Steinecker’s affidavit did not state that defendants deviated from the standard of care and the witnesses’ depositions cannot support her claim for medical malpractice. In this case, without an expert witness, plaintiff could not prove that defendants committed medical malpractice and summary judgment was appropriate.

Affirmed.

McNULTY, P.J., and GORDON, J., concur.


author: PRESIDING JUSTICE McNULTY

text:
    S. ANTHONY GARCIA, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (5th Division)
    No. 1—90—2961
    Opinion filed May 8, 1992.

      Ambrose & Cushing, P.C., of Chicago (John C. Ambrose, of counsel), for appellant.

      Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Brian Trubitt, Assistant Corporation Counsel, of counsel), for appellee.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

Plaintiff S. Anthony Garcia brought suit against the City of Chicago (City) to recover for injuries he sustained in an automobile accident. The issues on appeal are: (1) whether the trial court erred in denying plaintiff’s motion for a directed verdict on the issue of liability; (2) whether the jury’s finding that plaintiff was 93.75% comparatively negligent was against the manifest weight of the evidence; (3) whether the trial court erred in instructing the jury that it could consider the impeachment of witnesses; (4) whether improper hearsay testimony denied plaintiff a fair trial; and (5) whether the trial court erred when it refused to give instructions informing the jury that it may not consider the negligence of a nonparty.

The evidence presented at trial established that at approximately 6:45 p.m. on August 15, 1983, plaintiff was traveling south on Halsted Street in Chicago. Walter Tanner was going west on Van Burén Street. Plaintiff testified that he slowed to a stop at the intersection behind another car. To his right, at the northwest corner, was a CTA bus. Plaintiff testified that because of the bus, his view of the traffic lights on the northwest and the southwest comers of the intersection was blocked. He testified that the traffic light on the southeast comer was not functioning, and that the northeast light was turned, displaying a green light for him. When the car in front of him began to move, plaintiff also moved. When plaintiff entered the intersection, his car was struck by Tanner’s car. Plaintiff testified that Anthony Kiselus, the police officer who investigated the accident, told him that there had been a similar accident at that same intersection about a week earlier where the traffic light had been twisted toward the wrong direction.

Tanner testified that he took a photograph of the intersection between 7:15 and 8 p.m. the day of the accident. This photograph, admitted into evidence, showed that the light on the southeast corner was burned out, and the light on the northeast corner was twisted on its pole so that it showed green for southbound traffic at the same time the light on the northwest comer showed red for the southbound traffic. James Ryan also testified on behalf of plaintiff that the light for southbound traffic at that intersection had been out two days before this accident.

The City called Officer Kiselus, who denied telling plaintiff that there had been an accident approximately a week earlier involving the twisted traffic light on the northeast corner of the intersection. He testified that the light on the northeast corner that was meant to direct traffic going from west to east was turned facing north, but all other lights at the intersection were functioning properly. He disputed that the photograph was taken at the time of the accident because it showed that the southeast light was not operating and because the picture appeared to have been taken at daylight. Officer Kiselus also testified that he was on the accident scene from 6:54 p.m. until he completed his report at 7:22 p.m. and during that time he did not see anyone taking pictures of the scene, nor was he aware that anyone at the accident scene had a camera.

Bernard O'Hallaren of the City’s bureau of electricity testified that he searched the bureau’s records for the four months preceding the accident for reports of malfunctioning traffic lights at the corner of Halsted Street and Van Burén Street. He found a report from May 23, 1983, indicating that a bulb in one of the traffic lights was burned out and was replaced, and a report from August 16, 1983, indicating that the northeast traffic light was turned, and soon thereafter was straightened and secured by a City technician. The court ruled that the log sheets provided by O’Hallaren could not be admitted as business records because they were photocopies rather than originals, and because the slips of paper from which the log sheets were generated had not been accounted for. Plaintiff moved to strike O’Hallaren’s testimony. The court reserved ruling on this matter, and the record is unclear as to whether the court did indeed rule on this motion.

The City also presented the testimony of Terese Joyce, who testified that she searched the records of the traffic and engineering department for reports of accidents that had occurred at the corner of Halsted and Van Burén Streets during 1983. She found reports of 11 accidents other than the accident at issue in this case. The trial court ruled that Joyce’s testimony was hearsay and instructed the jury to disregard her testimony.

The jury returned a verdict against the City. Plaintiff’s damages were found to be $19,100, but the jury reduced the award 93.75% for plaintiff’s comparative negligence to a total of $1,193.75. Plaintiff appeals.

Plaintiff first contends on appeal that the trial court erred in denying his motion for a directed verdict on the issue of plaintiff’s contributory negligence. A verdict is to be directed when all of the evidence, viewed in the aspect most favorable to the nonmovant, so overwhelmingly favors the movant that no contrary verdict could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) A directed verdict is inappropriate where there are factual issues to be determined by the jury, or where the assessment of the credibility of witnesses or determination regarding conflicting evidence may be decisive to the outcome of a case. (Anderson v. Beers (1979), 74 Ill. App. 3d 619, 393 N.E.2d 552.) In order to prove contributory negligence, it must be shown that a party failed to do that which a reasonably careful person would do or has done something that a reasonably careful person would not do. (Mort v. Walter (1983), 98 Ill. 2d 391, 457 N.E.2d 18.) Whether certain conduct constitutes negligence is a matter best left to the determination of the jury. Moore v. Swoboda (1991), 213 Ill. App. 3d 217, 571 N.E.2d 1056.

The undisputed evidence reveals that Tanner, driving westbound, had a green light as he entered the intersection. It is also undisputed that the light on the northeast corner of the intersection, which was meant to control eastbound traffic, was turned so that it instead faced southbound traffic. However, we are faced with conflicting testimony as to whether the light on the southeast comer, meant to control southbound traffic, was burned out. Although plaintiff claims that the light was burned out, the investigating officer testified that the light was operating properly. Moreover, while plaintiff introduced a photograph allegedly taken shortly after the accident, Officer Kiselus’ testimony casts doubt on whether the photograph was indeed taken on the night of the accident. Plaintiff contends that because of a bus stopped at the northwest corner, his view of the traffic lights on the northwest and southwest corners of the intersection was blocked. Thus, according to his testimony, he proceeded into the intersection after seeing the twisted traffic light turn green. Whether the traffic light on the southeast corner was burned out and whether plaintiff acted reasonably by entering the intersection after seeing the twisted light turn green are questions that were properly left to the jury to answer. Accordingly, we find that there was sufficient evidence to send this case to the jury on the issue of plaintiff’s contributory negligence.

In the alternative, plaintiff contends that the jury’s verdict finding plaintiff 93.75% comparatively negligent was against the manifest weight of the evidence. However, it is our opinion that there was sufficient evidence to. support the jury’s verdict. Credibility determinations are uniquely within the province of the jury, and an appellate court may not disturb a credibility determination unless the jury has acted contrary to the manifest weight of the evidence. (Long v. Illinois Power Co. (1989), 187 Ill. App. 3d 614, 543 N.E.2d 525.) From the evidence presented at trial, the jury may have concluded that the light at the southeast corner of the intersection was operating properly at the time of the collision. Furthermore, regardless of whether or not the light at the southeast corner was functioning properly, the jury may have concluded that a reasonable man would have noticed that the twisted light was not in its normal position and should not be followed, or at the least followed with caution. Therefore, there was sufficient evidence to support the jury’s determination that plaintiff was 93.75% responsible for the accident.

We also find no merit in plaintiff’s contention that the trial court erred in instructing the jury on impeachment by prior inconsistent statements. In order to impeach a witness with a prior inconsistent statement, the impeachment must be completed by later offering evidence of the inconsistent statement if the statement was denied. (Rigor v. Howard Liquors, Inc. (1973), 10 Ill. App. 3d 1004, 295 N.E.2d 491.) It is reversible error to fail to offer substantive proof of the impeaching statements due to the highly prejudicial innuendo created through the incomplete impeachment. (Green v. Cook County Hospital (1987), 156 Ill. App. 3d 826, 519 N.E.2d 3.) Here, when defense counsel read contradictory answers from plaintiff’s deposition transcript, plaintiff claimed that he was unable to recall making all but one of the statements. Plaintiff therefore argues that the impeachments were incomplete because it was not proved that he made the prior statements. We disagree. It is clear from the record that plaintiff admitted that he had been deposed and that he had been sworn prior to giving the deposition. In fact, plaintiff even stipulated that the deposition transcripts read to the jury were accurate. Accordingly, the authenticity of the deposition transcripts has been established, and the trial court properly instructed the jury that it may consider these impeaching statements.

Plaintiff’s next contention is that he was denied a fair trial by O’Hallaren’s and Joyce’s testimonies as to reports of malfunctioning lights at the intersection of Halsted and Van Burén Streets. Plaintiff moved to strike O’Hallaren’s testimony, but ruling on the motion was reserved. It does not appear from the record that plaintiff renewed his request to strike O’Hallaren’s testimony or that the trial court in fact ruled on the motion. Plaintiff has therefore waived the right to challenge the propriety of O’Hallaren’s testimony. It is clear from the record, however, that the trial court did strike Joyce’s testimony. The trial court not only orally instructed the jury to disregard Joyce’s testimony, but also gave the jury a written instruction that it was not to consider testimony that was stricken. Sustaining an objection and instructing the jury to disregard the stricken testimony cures any potential prejudice (McGrath v. Chicago & North Western Transportation Co. (1989), 190 Ill. App. 3d 276, 546 N.E.2d 670), and absent clear evidence to the contrary, it is presumed that the jury followed the instruction. (Wells v. Webb Machinery Co. (1974), 20 Ill. App. 3d 545, 315 N.E.2d 301.) Based on our review of the record, we conclude that the trial court’s instructions to the jury were adequate to cure any prejudice to the defendant on this point.

Plaintiff’s last contention is that the trial court erred when it refused to instruct the jury that if it finds defendant negligent, it is not a defense that a nonparty may have contributed to the injury. No party may raise as grounds for an appeal the failure to give an instruction that the party did not proffer to the trial court in a timely manner. (107 Ill. 2d R. 366(b)(2)(i).) Here, plaintiff not only failed to tender these instructions, but he in fact argued against the instructions when they were presented to the trial court by Tanner.

Accordingly, for the reasons set forth above, the decision of the trial court is affirmed.

Affirmed.

LORENZ and GORDON, JJ., concur.


author: JUSTICE NICKELS

text:
      In re PROPOSED INCORPORATION OF THE VILLAGE OF VOLO (Burnell C. Russell et al., Petitioners-Appellants and Cross-Appellees, v. David John Lorenz et al., Respondents-Appellees and Cross-Appellants).
    Second District
    No. 2—91—0303
    Opinion filed May 7, 1992.

      J. William Braithwaite, Terrence J. Griffin, and Eugene J. Kelley, Jr., all of Arnstein & Lehr, of Barrington, for appellants.
    Michael C. Poper, Thomas M. Foley, and Stephen M. Haugh, all of Michael C. Poper, P.C., of Crystal Lake, for appellees.
   JUSTICE NICKELS

delivered the opinion of the court:

On June 25, 1990, petitioners Burnell Russell and other owners of land and electors residing in an unincorporated area of Lake County filed in the circuit court of Lake County a petition to incorporate certain territory as the Village of Volo (Volo) pursuant to the Illinois Municipal Code (Municipal Code) (Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3— 5). The Village of Lakemoor and certain property owners in the proposed area of incorporation sought to intervene with objections to the incorporation. Lakemoor was not allowed to intervene; however, respondents David John Lorenz (objectors) and others were allowed to file their objections. After a hearing on the petition, the trial court determined that the area was not contiguous and therefore was not a village in fact. (Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3—6.) Petitioners appealed and raise the issue whether the finding that the area was not contiguous is against the manifest weight of the evidence. Objectors filed a cross-appeal, claiming the trial court used the wrong census to determine the population of McHenry County.

Petitioners filed a certified copy of the resolution of the Lake County Board relating to the proposed incorporation of Volo. Pursuant to section 2 — 3—18 of the Municipal Code, the resolution provided that the proposed incorporation was compatible with the official plan for development of Lake County and that the lands to be embraced in Volo constituted a sufficient tax base to insure the ability of Volo to provide all necessary municipal services to its inhabitants. Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3—18.

On January 28, 1991, a hearing was held on the petition to incorporate. The parties made the following stipulations: (1) The petition was signed by more than 35 electors who resided within the territory proposed for incorporation; (2) the signatures on the petition were genuine; (3) the territory proposed for incorporation was in Lake County; (4) Lake County had a population in excess of 150,000; (5) there had been no special census for McHenry County since 1980; (6) there had been special censuses for the Cities of McHenry and Woodstock and the Villages of Crystal Lake and Cary, all located in McHenry County; (7) none of the territory sought to be incorporated was within the corporate limits of any other municipality; (8) the territory to be incorporated was owned by at least 30 different owners; (9) all of the territory to be incorporated was situated within 10 miles of McHenry County; (10) the name “Volo” had not been adopted by any other municipality; and (11) the Lake County Board passed a resolution pursuant to section 2 — 3—18 of the Municipal Code, finding that the incorporation conformed with the comprehensive plan of Lake County and that there was a sufficient tax base to support the village.

Under section 2 — 3—5 of the Municipal Code, any contiguous territory in a county of 150,000 or more population may be incorporated under that section if any part of the territory is situated within 10 miles of a county with a population of less than 150,000. (Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3—5.) Petitioners filed a motion in limine to preclude the admission of any municipal census and estimate of population as purported proof of the population of McHenry County. The motion provided a memorandum from the United States Department of Commerce, Bureau of Census which showed the official population of McHenry County at 147,897. This number was from the 1980 United States Federal census.

During argument on the motion in limine, the trial court took judicial notice of the 1980 Federal census. Objectors sought to show an increase in the McHenry County population from the 1980 Federal census by using special censuses of five municipalities in McHenry County which were conducted since 1980. These censuses showed an increase in population for Cary, McHenry, Crystal Lake, Woodstock and Oakwood Hills (Oakwood Hills was not included in the stipulation). Objectors also sought to use a population total for McHenry County from the 1990 Federal census which results were released about one week prior to the hearing.

Although the documents were not certified, the court took judicial notice of them. It indicated that they were being filed as offers of proof because the court had previously ruled against their admission. Apparently, arguments were already heard on the motion in limine which are not in the record on appeal. However, the trial court noted that an increase in a part of the county did not legally constitute a census for the whole referring to the objectors’ argument to supplement the 1980 census with the municipal censuses. The court observed that the document regarding the 1990 census provided that “the population counts set forth here are subject to possible correction for undercount or overcount. The United States Department of Commerce is considering whether to correct these counts and will publish corrected counts, if any, not later than July 15, 1991.” Based on this information, the court concluded that the 1990 census was not an official and final census. The court granted petitioners’ motion in limine and used the 1980 Federal census as determinative of McHenry County’s population.

Objectors also sought to challenge the Lake County Board resolution. They argued that the trial court had to make a separate finding that the proposed incorporation was compatible with the comprehensive plan of Lake County and that there was a sufficient tax base for the proposed village. The court reserved ruling on the matter and allowed objectors to present the testimony of Robert Hosteller. Hosteller was the deputy director of the Lake County Department of Planning, Zoning and Environmental Quality. The court subsequently determined that it was not required to make such findings and struck Hosteller’s testimony in its entirety. It was allowed only as an offer of proof.

At the hearing, petitioners presented testimony regarding the number of inhabitants living in dwellings in the territory: 212 people. These people lived in dwellings other than those designed to be mobile. William Doland, a civil engineer and registered land surveyor, prepared the plat of the territory. He testified that the territory to be incorporated equalled 1.6 square miles. (Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3—5.) He explained the scale for exhibit No. 8, an aerial photograph of the territory, was 600 feet for every inch. Doland said the narrowest width of any of the tracts, east to west and north to south, was 350 feet. There was a typographical error in the legal description of the territory according to Doland. However, the court ruled that the error was cured by the plat. A copy of the plat of the proposed incorporation of Volo is found on the following page.

PLAT OF THE PROPOSED INCORPORATION OF VOLO

Objectors called Lorenz to testify. He said his stepson had moved from Lorenz’ house in the first week of June 1990. Lorenz did not recall anyone coming to his house to take a count of residents.

Following the hearing, the trial court concluded that all the requirements of section 2 — 3—5 of the Municipal Code were met except one. The court found that the territory was not contiguous as required by section 2 — 3—5 and therefore was not a village in fact. (Ill. Rev. Stat. 1989, ch. 24, pars. 2 — 3—5, 2 — 3—6.) The court denied the petition for incorporation in its February 28, 1991, order (file stamped February 13, 1991, by the circuit clerk). The parties filed a timely appeal and cross-appeal.

Petitioners contend in their appeal that the trial court erred in finding that the area to be incorporated was not contiguous. They argue that all the parcels touched and adjoined one another in a reasonably substantial physical sense. (Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342.) Petitioners claim that there is no point of physical touching between parcels which is less than 350 feet in length or width. The fact the boundaries are irregular is not fatal to incorporation according to petitioners. (People ex rel. Magnuson v. Kramer (1961), 21 Ill. 2d 392.) They ask that the judgment of the circuit court be reversed and the cause be remanded to allow the matter of incorporation to be submitted to the electors of the area.

Section 2 — 3—5 of the Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3—5) requires an “area of contiguous territory.” The word “contiguity” has been found to mean “ ‘in actual contact; touching or adjoining.’ ” (Village of Kildeer, 19 Ill. 2d at 352, quoting Webster’s New Collegiate Dictionary 180 (2d ed.); Village of Fox River Valley Gardens v. Lake County Forest Preserve District (1992), 224 Ill. App. 3d 919, 931.) “Contiguity” has the same meaning under the disconnection statutes, the annexation statutes, and the incorporation statutes. (See People ex rel. Hanrahan v. Village of Wheeling (1976), 42 Ill. App. 3d 825.) The finding of the trial court as to contiguity will not be disturbed unless it is against the manifest weight of the evidence. In re Annexation to City of Prospect Heights (1982), 107 Ill. App. 3d 1045.

To be contiguous, the tracts of land in the territory must touch or adjoin one another in a reasonably substantial physical sense. (In re Petition to Annex Certain Territory to the Village of North Barrington (1991), 144 Ill. 2d 353; Village of Kildeer, 19 Ill. 2d at 352; Fox River Valley Gardens, 224 Ill. App. 3d at 931.) The determination as to the reasonableness of the contiguity must be determined from the facts of each case. (Village of North Barrington, 144 Ill. 2d at 366.) Point-to-point touching or cornering is generally not sufficient to satisfy the requirement of contiguity. (In re Incorporation of the City of Prospect Heights (1979), 79 Ill. App. 3d 378.) The use of a narrow “strip” of land to connect a parcel with the rest of the territory has been held not to meet the requirement of contiguity under the statute. (See North Barrington, 144 Ill. 2d at 367.) A line of demarcation between the reasonableness or unreasonableness of a contiguity must be drawn based on the facts of each case. Village of Kildeer, 19 Ill. 2d at 352; Indian Valley Golf Club, Inc. v. Village of Long Grove (1985), 135 Ill. App. 3d 543, 549.

Extreme irregularity in boundaries is not a fatal defect as compactness is not a requisite in the statute. (North Barrington, 144 Ill. 2d at 367-68; Village of Kildeer, 19 Ill. 2d at 352.) No fixed rule exists regarding how wide a common boundary must be to establish contiguity. (Indian Valley Golf Club, Inc., 135 Ill. App. 3d 543.) The courts of this State have held that “contiguity” should be given a uniform liberal construction. Village of Kildeer, 19 Ill. 2d at 351-52; see North Barrington, 144 Ill. 2d at 366.

In the case at bar, objectors contend that contiguity is not to be applied in a mechanistic manner of measuring borders but the facts of each case must be examined. (Indian Valley Golf Club, Inc., 135 Ill. App. 3d at 550.) They claim that the territory should be adjacent and parallel to allow for the delivery of services, citing People ex rel. County of St. Clair v. City of Belleville (1981), 84 Ill. 2d 1. Objectors summarize and rely upon the testimony of Robert Hosteller regarding Volo's ability to provide services. They claim the proposed incorporation is a subterfuge to contain Lakemoor expansion and not to establish a “village in fact.” Objectors cite no authority for their suggestion that incorporation as a separate Village of Volo rather than as part of Lakemoor is a “subterfuge” which should defeat incorporation.

Objectors first agree that compactness is not required but then argue that compactness, community and services are factors to be considered in contiguity. They argue that Volo does not meet those considerations. They incorrectly state that petitioners relied upon People ex rel. Village of South Barrington v. Village of Hoffman Estates (1964), 30 Ill. 2d 385, as vindicating petitioners' concept of contiguity. Petitioners do not cite or rely upon Village of Hoffman Estates in their initial brief. Then objectors cite to In re Annexa tion to the Village of Downers Grove (1981), 92 Ill. App. 3d 682, which they claim explains why Village of Hoffman Estates (30 Ill. 2d 385) was reversed. Initially we point out that the appellate court does not reverse decisions of the Illinois Supreme Court. And, Village of Downers Grove only states that Village of Hoffman Estates has been interpreted narrowly by the appellate court and would not be applied in that case due to the facts. Village of Hoffman Estates has not been reversed. Objectors claim that the “reversal” of Village of Hoffman Estates shows that compactness, community and services are important factors in contiguity.

Finally, objectors posit that petitioners rely on case law which shows what the law of contiguity was before 1979. They contend that the Illinois Supreme Court has redefined contiguity through later case law. However, other than citing to City of Belleville (84 Ill. 2d 1), objectors fail to support their argument with Illinois Supreme Court case law.

We agree with objectors that the reasonableness of the contiguity must be determined by the facts of each case as recently reiterated by the Illinois Supreme Court. (Village of North Barrington, 144 Ill. 2d at 366.) However, contiguity means “actual contact, touching or adjoining.” (Fox River Valley Gardens, 224 Ill. App. 3d at 931.) The court in Indian Valley Golf Club, Inc. v. Village of Long Grove (1985), 135 Ill. App. 3d 543, examined case law to find that widths of less than 150 feet were sufficient boundaries to constitute contiguity. The court determined that 150 feet was a substantial physical touching and contiguity existed.

Nor did the City of Belleville redefine or change the law with respect to contiguity. The supreme court in the City of Belleville was addressing the issue of multiple annexations of parcels at once, some of which were not contiguous to the city unless certain parcels in the annexation were also annexed. It was noted by the court that adjoining in a reasonably substantial physical sense (Village of Kildeer, 19 Ill. 2d at 352) allowed for delivery of services conveniently and efficiently. Sewer lines, fire, police, etc., as far as practicable should not have to pass under or over other lands not within municipal boundaries. This concept was not new in City of Belleville. The court in Wild v. People ex rel. Stephens (1907), 227 Ill. 556, found point-to-point or cornering was not contiguous because no person or vehicle could pass between the parcels without passing outside the village. Wild also found that the use of a 50-foot-wide strip to connect a parcel was a subterfuge. However, no mention was made of the other irregular boundaries in Wild, one of which was 160 feet in width and 2,452 feet in length.

Objectors’ reliance on the testimony of Hosteller is improper. The trial court struck the entire testimony and only allowed it as an offer of proof. Objectors have not argued or cited pertinent authority concerning any error in the trial court’s ruling, and therefore any error is waived.

It is somewhat confusing to discern objectors’ position from their inaccurate discussion of Village of Hoffman Estates (30 Ill. 2d 385). The court there applied a unity of purpose and facilities test because the territory to be annexed did not physically adjoin the village. Since the village was already providing significant municipal services to the annexed area, a basis for contiguity other than physical contact or common boundary was appropriate to apply. (Fox River Valley Gardens, 224 Ill. App. 3d at 932.) Apparently objectors argue that the lack of compactness, lack of community in the traditional sense, and lack of providing services should outweigh any physical contact in determining contiguity in this case.

Village of Hoffman Estates has been narrowly interpreted by the appellate court and is limited to its particular facts. (Village of Downers Grove, 92 Ill. App. 3d at 686.) Subsequent cases have held that a unity of purpose and facilities is not an additional requirement or exception to the need for a reasonably substantial physical touching, but a factor to consider in the determination of contiguity. (Village of Wheeling, 42 Ill. App. 3d 825.) Village of Downers Grove concluded that a unity of purpose and facilities is an element of contiguity in an annexation case only. (92 Ill. App. 3d at 687.) When physical contiguity is present, the principles of Village of Hoffman Estates are not applied. (Fox River Valley Gardens, 224 Ill. App. 3d at 932.) We have physical contiguity in the instant case.

It is the function of the legislature to prescribe the conditions of incorporation and the obligation of the courts to see that they are met. (Village of Kildeer, 19 Ill. 2d at 349.) Courts will not inject provisions not found in the statute however desirable they may be. (Village of Kildeer, 19 Ill. 2d at 349-50.) The statute herein requires an area of contiguous territory only. (Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3—5.) To be contiguous the tracts of land must touch or adjoin one another in a reasonably substantial physical sense. (Village of North Barrington, 144 Ill. 2d at 365-66.) If the court determines that the tracts are contiguous in this respect and the other requirements of section 2 — 3—5 of the Municipal Code are met, a “village in fact” exists. (People ex rel. County of DuPage v. Lowe (1967), 36 Ill. 2d 372, 380-81.) Long-standing precedent that even extreme irregularity of boundaries does not bar annexation where the land to be annexed consists of contiguous parcels and is contiguous to the municipality was reaffirmed in Village of North Barrington (144 Ill. 2d at 367). Contrary to objectors’ position, contiguity has not been redefined by later case law, e.g., Village of North Barrington (144 Ill. 2d 353), Fox River Valley Gardens (224 Ill. App. 3d 919), and People ex rel. Village of Forest View v. Village of Lyons (1991), 218 Ill. App. 3d 159.

Objectors argue that Volo is not a “village in fact” apparently because of the considerations of services and community. Section 2 — 3—6 of the Municipal Code requires that the circuit court rule whether an area is a “village in fact.” (Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3—6.) However, the requirement that the court rule on whether the area is a “village in fact” simply means that a hearing is held to determine whether the area sought to be incorporated meets the requirements of section 2 — 3—5 of the Municipal Code. (People ex rel. County of DuPage, 36 Ill. 2d 372, 380-81.) In other words, the court must find an “area of contiguous territory” which does not exceed “2 square miles,” etc. Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3—5.

Lastly, objectors rely on People ex rel. Village of Long Grove v. Village of Buffalo Grove (1987), 160 Ill. App. 3d 455, to support their position. In Village of Buffalo Grove, this court found that contiguity did not exist where the parcel sought to be annexed by Buffalo Grove was entirely surrounded by Long Grove except for a 600-foot common boundary. The common boundary with Buffalo Grove was found insufficient where the parcel was 95 acres in area. Objectors argue that Village of Buffalo Grove is comparative to the instant case because the area to be incorporated as Volo would almost entirely surround Lakemoor.

We note that Village of Buffalo Grove differed from earlier case law by this court wherein it was noted that contiguity was not approached with such comparison between the size and volume of connecting tracts. (In re Annexation of Certain Territory to the Village of Buffalo Grove (1970), 128 Ill. App. 2d 261, 266.) The Illinois Supreme Court recently cited with approval and relied upon In re Petition for Annexation of Lands of the Village of Glen Carbon (1970), 130 Ill. App. 2d 821. (Village of North Barrington, 144 Ill. 2d at 368.) In Village of Glen Carbon, the area to be annexed contained about 230 acres and had a common boundary of only 1,312 feet and was found to be contiguous. No comparison of the size of the area to be annexed and the common boundary was made by the supreme court in Village of North Barrington. Thus, more recent case law suggests that Village of Buffalo Grove (160 Ill. App. 3d 455) may be limited to the facts in that case.

In any event objectors do not rely on Village of Buffalo Grove (160 Ill. App. 3d 455) for the size-comparison aspect. They rely on the fact that the area to be annexed to Buffalo Grove was almost completely surrounded by Long Grove. However, this factor is inapposite to the case at bar. The area that objectors point to in this case as having only a “small” connection with Lakemoor is already Lakemoor. If the parcel in the center of the area to be incorporated as Volo was not already annexed to Lakemoor and the parcel was to be annexed to Lakemoor, assuming Volo was already incorporated, Village of Buffalo Grove (160 Ill. App. 3d 455) may be more relevant to that annexation. The fact that the center area is already Lakemoor which causes Volo’s proposed boundaries to be extremely irregular does not establish lack of contiguity. (See Kramer, 21 Ill. 2d 392; Village of Kildeer, 19 Ill. 2d 342.) Objectors have failed to distinguish Kramer and Kildeer.

The evidence in the case at bar established that no parcel was smaller in width or length than 350 feet. There is no point-to-point or cornering of parcels which would defeat contiguity. (Village of North Barrington, 144 Ill. 2d at 367-68.) Widths of lesser length than 150 feet have been held to be a substantial border. (See Indian Valley Golf Club, Inc., 135 Ill. App. 3d 543.) There are no narrow strips of land to connect parcels to the rest of the territory which have been held not to meet the requirement of contiguity. (Village of North Barrington, 144 Ill. 2d at 367, citing Wild, 227 Ill. 556 (wherein a 50-foot strip was not contiguous); see Village of Lyons, 218 Ill. App. 3d 159 (wherein parcels nine times longer than wide were “strips” and not contiguous).) After a careful examination of the plat of the village in question in the instant case, we believe it satisfies the requirements of the statute as interpreted. (Village of Kildeer, 19 Ill. 2d at 352.) The area embraced is extremely irregular but this fact as found in Kramer (21 Ill. 2d 392) and Kildeer (19 Ill. 2d 342) is not a fatal defect. (See also Village of North Barrington, 144 Ill. 2d at 367.) Although there may be problems in the administration of such an irregular territory, such matters are the function of the legislature and not the courts. (Kramer, 21 Ill. 2d at 396.) The judgment of the circuit court is against the manifest weight of the evidence and is reversed.

Turning to objectors’ cross-appeal, they contend that the trial court erred in using the 1980 Federal census to determine the population of McHenry County. It was stipulated that the area to be incorporated as Volo was within 10 miles of McHenry County. (Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3—5.) The 1980 census showed the population of McHenry County under 150,000 (147,897), which met the requirements of section 2 — 3—5 of the Municipal Code. Objectors claim that the 1990 census should have been used or that the 1980 census as supplemented with later municipal census should have been used. Either source showed a population in excess of 150,000.

The parties disagree as to whether the census information available at the time of filing for incorporation or at the time of hearing controls. Petitioners cite In re Incorporation of the Village of Capitol Heights (1968), 41 Ill. 2d 256, as supportive of their position that time of filing controls. However, Village of Capitol Heights holds that the facts existing at the time of the court hearing are determinative of compliance -with the statutory conditions for incorporation. (Village of Capitol Heights, 41 Ill. 2d at 258; Wescom, Inc. v. Woodridge Park District (1977), 49 Ill. App. 3d 903.) Thus, the latest census available at the time of the hearing should be used.

Under section 1 — 7—2 of the Municipal Code, whenever any provision therein is based on the number of inhabitants that number shall be determined by reference to the “latest census” taken by the authority of the United States, Illinois, or the municipality. (Ill. Rev. Stat. 1989, ch. 24, par. 1 — 7—2.) When such statutes do not prescribe by what method population is to be determined, it has been held that the proper basis is the official Federal census as provided under an earlier, similar version of section 1 — 7—2. (Supervisors of the County of Boone v. Village of Rainbow Gardens (1958), 14 Ill. 2d 504, 509.) Federal figures are conclusive and may not be contradicted by Federal experts testifying as to actual population on a crucial date based upon estimates of the average annual population increase. (Rainbow Gardens, 14 Ill. 2d at 510.) Population in such cases is to be determined from an official census. (See Rainbow Gardens, 14 Ill. 2d at 510; People v. Walker (1978), 59 Ill. App. 3d 192; People ex rel. Nicholson v. Board of Trustees of the Police Pension Fund (1935), 281 Ill. App. 394.) In section 2 — 3—5 of the Municipal Code, the specific and controlling statute herein, the county’s population is determined by the “last preceding federal census.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3— 5.

Objectors claim that the 1990 Federal census for McHenry County was available at the time of hearing. The 1990 census showed a population in excess of 183,000. However, the 1990 Federal census at the time of the hearing was not final. The census specifically provided that the population counts set forth therein were subject to correction and that corrections, if any, would be made by July 15, 1991, about six months after the hearing. The trial court determined that the 1990 census released at that time was not the official census. We agree.

Objectors argue that while an overcount may have been possible, the margin of difference for a correction between 150,000 and 183,000 is too great to be reasonably possible. Objectors do not claim that the 1990 census was official and final. They also claim that the statute refers to “latest census taken” and not “latest census not subject to modification.” However, we are not persuaded by their arguments. An official Federal census is required (see Rainbow Gardens, 14 Ill. 2d at 510; Coal Creek Drainage & Levee District v. Sanitary District (1929), 336 Ill. 11), and a census which specifically provides that it is subject to correction at a later time is not final and official. The trial court properly denied use of the 1990 census.

Next, objectors claim that the 1980 census had been updated through special Federal census of five municipalities in McHenry County. They claim that special Federal censuses can be .used as conclusive evidence of population. (Rainbow Gardens, 14 Ill. 2d at 511.) An increase of over 9,000 people is reflected in those five municipalities which places the 1980 census population of McHenry County of 147,897, over 150,000 according to objectors. Objectors also rely on an official estimate from Current Population Reports which showed 1988 estimates for McHenry County at 171,000.

Objectors incorrectly state that petitioners maintain that only the decennial Federal census may be used. They argue that section 1 — 7—2 of the Municipal Code does not require use of only a decennial census. Petitioners do not contend that only a decennial census may be used. The statute clearly provides that only the “latest” Federal, State or municipal census be used (Ill. Rev. Stat. 1989, ch. 24, par. 1 — 7—2), or the “last preceding federal census” (Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3—5). Special Federal censuses may be used to determine population. Rainbow Gardens, 14 Ill. 2d at 511.

The problem with objectors’ argument is that the special Federal censuses are of five municipalities in McHenry County and none are special Federal censuses of McHenry County itself. Rainbow Gardens allowed use of a special Federal census; however, the special Federal census was done for Rainbow Gardens, the population of which was in issue in that case. Section 1 — 7—2 is a general provision for the proper method of determining the population where a provision is based on the number of inhabitants. (Ill. Rev. Stat. 1989, ch. 24, par. 1 — 7—2.) To incorporate as a village under section 2 — 3—5 of the Municipal Code, the number of inhabitants of the county within 10 miles of the area must be less than 150,000. (Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3—5.) The plain meaning of section 2 — 3—5 requires a determination of the county’s population. Special Federal censuses of five municipalities in the county added to the 1980 county population do not meet the statutory requirement.

As petitioners pointed out and which objectors did not reply to, population increases in these five locations did not conclusively establish an increase in the county population. The increases could have resulted from annexations or intracounty movement of residents. Also, objectors’ position would require an assumption that no other municipality or area in McHenry County lost population. The trial court properly excluded consideration of these five censuses with the 1980 census to assume an increase in McHenry County exceeding 150,000. While objectors urge a “commonsense” approach that these showed an increase in McHenry County, the terms of the statute control.

It was also proper to exclude consideration of the Current Population Reports regarding 1988 estimates of population. Estimates are not included in the statutes as determinative of population (Ill. Rev. Stat. 1989, ch. 24, pars. 1 — 7—2, 2 — 3—5) and cannot be used to contradict Federal census figures (Rainbow Gardens, 14 Ill. 2d at 510).

Based on the foregoing, the judgment of the circuit court of Lake County is reversed, and the matter is remanded for the trial court to enter an order finding a village in fact and to comply with the provisions of section 2 — 3—6 of the Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3—6).

Reversed and remanded with directions.

UNVERZAGT and DUNN, JJ., concur.


author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY FORT, Defendant-Appellant.
    Second District
    No. 2—90—1067
    Opinion filed May 20, 1992.
    Rehearing denied June 12, 1992.
    G. Joseph Weller and David W. Devinger, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers, Mary Beth Burns, and Lawrence M. Bauer, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Following a bench trial, on June 4, 1990, defendant, Anthony Fort, was convicted of armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2(a)). On September 21, 1990, the trial court sentenced defendant to a 10-year term of imprisonment. Defendant appeals his sentence, contending that the trial court erred in considering improper factors in imposing sentence and that the sentence was excessive. Defendant did not raise any contention of error below at the time of sentencing or by means of a motion to reconsider the sentence. We affirm the judgment of the circuit court.

We recite only those facts relevant to an understanding of the issues raised. The charge stems from an incident on February 9, 1990. Charles Horton testified for the State. According to Horton, on that date, at approximately 1 p.m., Charles Horton was sitting around a desk with his uncle, Hallie Powell, and his cousin, Andre Richardson, at Best TV Rental in Rockford, Illinois. Shortly thereafter, defendant walked into the store and asked to speak with Hallie in the washroom. After a brief conversation in the washroom, defendant returned and began pacing the floor while his friends resumed their conversation in the store. When the people in the group turned their heads, they noticed that defendant had gone behind the counter with a gun in his hands, reached into the cash register and put some money into his pocket, saying, “I hate to have to do this.” Defendant began to back up toward the door, pointing the gun in the general area of the group. As he did so, he said he did not want to do anything that he or they would regret. Defendant left in a white car driven by someone else.

Officer Kevin Rice testified regarding his chase and apprehension of the defendant that afternoon after receiving a broadcast over his radio. Detective George Krebs testified regarding his interview of defendant in which defendant implicated himself in the offense and identified his accomplice, Willy Tolon. Defendant stated that Tolon had furnished the weapon and had driven him to the store. Krebs stated that defendant did not appear to be under the influence of any drug at the time of the interview. However, defendant informed him that, sometime after 8:30 a.m. on the morning of the robbery, defendant had purchased and used under $100 worth of cocaine and had used some speed called “20/20 tab” just prior to the robbery. Krebs stated that, based on his 27 years of experience, he had learned that an ordinary cocaine “high” lasted about a half-hour.

Defendant testified that he had been to the store twice on the day of the robbery. On his first trip to the store at about 10 a.m., his initial intent in going there was to sell Odell Brown a gun he had obtained from Tolon, but defendant never made the offer to sell the gun after he realized Brown did not have the money. He returned the second time that day to sell the gun to Hallie Powell. He told Powell that he had not been sleeping and had been “messing with drugs” for about 10 days. He asked to borrow some money, but Powell told him he did not have any. After this conversation, defendant went to the cash drawer, pulled it open and took the money out. He had a gun in his raised right hand at this time. As he walked toward the door, he said, “I am sorry fellows.” On cross-examination, defendant acknowledged that he had taken the speed and got a “rush” at about 10:15 a.m. after he had talked to Brown that morning. When asked if it lasted about 15 minutes, defendant stated he was high “for quite a while.”

The trial court found defendant guilty of the charge. At the sentencing hearing on September 21, 1990, Rob Woodard and Ed Davis, who had seen defendant perform as a singer in connection with the local park district, testified that defendant had promise as a musician.

Defendant testified regarding his work as a musician and his volunteer work at Washington Park Community Center; he expressed remorse for his involvement in the robbery. He attributed his involvement in the robbery to his use of drugs.

The presentence report states that the 25-year-old defendant began drinking at age 19, experienced memory blackouts and increased tolerance to alcohol, and had alcohol-related arrests. He never received alcohol abuse treatment and stated he was not in need of such treatment. Defendant also used marijuana, amphetamines and cocaine. He stated he was cocaine dependent, but despite encouragement from family members to enter drug treatment, he had never sought help.

At the sentencing hearing, after hearing testimony and the arguments of counsel, the court made the following comments which we set out at length because of the importance of their context:

“Apparently, Mr. Fort, you had a good up bringing, you are talented in many respects. I have here a letter from your first grade teacher, Sherry Seal, even at that young age, adults saw something in you that was of some import. But you took those talents that you had, which I take it were many, and then you dropped out of school. And I am talking now, Mr. Fort, I am talking to you, I am saying a word, it’s called responsibility, and everything I say will go right to that word. That’s what’s wrong with the whole world is responsibility, nobody likes to take or be responsible for their own actions. They do something wrong and it’s somebody else’s fault. But let me talk about responsibility.
Sierra Clark, age 7, mother’s name Cheryl Clark; name Antoine Boddie, age 5, mother’s name Tracy Boddie; name Shawn Gordon, age 4, mother’s name Hazel Gordon; name Jamal Gully age 2, mother’s name Karen Gully; name Dion Tatum age 2, mother’s name Tisia Tatum; all your offsprings [sic]. I am talking about responsibility.
During all this time ***, now we are talking age 18, and from that, when all of that was going on, we have aggravated battery ***, we have attempted rape, we have drinking, substance abuse, and we have cocaine abundant abuse. Talking now about responsibility, you [sic] sadly lacking, that’s my lament for you and I am sorry for you. I really am. Because at least up to this point, whatever talents you had you kissed them good-by [sic]. Nobody made you do it, but that was the easy way. And everything that’s worth anything in this world you have to work at it. Nothing comes easy. Nothing.
This sentence doesn’t come easy either. It comes hard. This is a Class X felony, the maximum penalty is not less than 6 nor more than 30 years. It is a non-probational offense, I have to give at least 6 years. The reason for imposing this sentence that I will impose in just a minute are [sic] based upon my independent assessment of the argument that had been made by the prosecution and the defendant and his counsel, the assessment of the factual situation of the offense presented to this court, the prior criminal history of the defendant, the presentence report and I have read it, and the arguments of counsel.
The court having a due regard of the history, the character of the defendant, the nature and the circumstances of this offense and the public interest, that’s something nobody thinks about too often these days, the public interest, certainly you don’t; the Court finds that probation or conditional discharge are [sic] not a proper sentence ***. And the Court further finds that a sentence of imprisonment is the most appropriate disposition of this offender, and it is necessary for the protection of the public and in the public interest. Probation and/or conditional discharge, I believe, would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice.
In arriving at this sentence, I have also considered Chapter 38, section 5 — 5—3.1, factors in mitigation, and Chapter 38, 5— 3 — 3—2 [sic], factors in aggravation.”

The trial court then imposed a 10-year term of imprisonment.

Defendant advances a two-pronged argument in challenging the propriety of his sentence: (1) the court impermissibly placed undue emphasis upon the defendant’s procreative lifestyle, and (2) failed to consider sufficiently defendant’s drug addiction and his potential for rehabilitation in fashioning the sentence. The State first argues that defendant failed to challenge his sentence below at the sentencing hearing or by way of a motion to reconsider and, therefore, these sentencing issues are waived on appeal. We agree. See People v. Bolden (1991), 210 Ill. App. 3d 940, 947, citing People v. Szabo (1986), 113 Ill. 2d 83, 93; People v. Davis (1982), 93 Ill. 2d 155, 163; People v. Murray (1990), 201 Ill. App. 3d 573, 580; People v. Craddock (1987), 163 Ill. App. 3d 1039, 1048; and People v. Killings (1986), 150 Ill. App. 3d 900, 909.

Defendant urges us to review this cause on the basis of plain error. (See 134 Ill. 2d R. 615(a).) Based on the record before us, we do not find that plain error has occurred. For a reviewing court to modify a sentence within the statutory limits, it must appear to the reviewing court that the sentence imposed is a clear departure from the spirit and purpose of the fundamental law and the constitutional requirement that the sentence be proportionate to the nature of the offense and that the possibilities for rehabilitation be taken into account. (Bolden, 210 Ill. App. 3d at 947.) A sentence is presumptively correct, and only where such a presumption has been rebutted by an affirmative showing of error will a reviewing court find that the trial court has abused its discretion. People v. Plantinga (1985), 132 Ill. App. 3d 512, 522.

It is true that when a record does not provide us the means to determine on what basis the court fixed a particular sentence we may find an abuse of discretion. (People v. Bergman (1984), 121 Ill. App. 3d 100, 109.) Here, the court clearly noted numerous factors supporting the sentence it imposed — notwithstanding its gratuitous comments that would have been better left unsaid. Contrary to defendant’s assertion, the court did not place undue emphasis on defendant's procreative lifestyle. Defendant takes the comments regarding his offspring out of context. In determining the correctness of a sentence, the reviewing court should not focus on a few words or statements made by the trial court, but it is to consider the record as a whole. (Bolden, 210 Ill. App. 3d at 948.) An isolated remark made in passing, even though improper, does not necessarily require that defendant be resentenced. People v. Sansorez (1987), 156 Ill. App. 3d 986.

In the case at bar, the trial court considered the overall irresponsible behavior of defendant in various aspects of his life, noting in passing and by implication that his children were his responsibilities, among others. There is no basis in the record to support defendant’s exaggerated and speculative claims that the court was punishing defendant more severely because of his “irresponsible creation of five children *** as a major contributor to a deficiency of responsibility in the world” (according to defendant), or because of his failure to support his children. We find no such explicit references by the court. In noting his lack of responsible behavior, the court did observe that defendant had had a decent upbringing but had dropped out of school, had committed several crimes, had engaged in substance abuse, and had squandered the opportunity to use his talents.

The judgment of the trial court in imposing sentence depends on many factors, including the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, and age; the court is to consider all matters reflecting upon the defendant’s personality, propensities, purposes, tendencies, and indeed every aspect of his life relevant to the sentencing proceeding. (People v. Gutirrez (1990), 205 Ill. App. 3d 231, 268.) We find no implication of defendant’s constitutional right of privacy or procreation. (But cf. People v. McCumber (1985), 132 Ill. App. 3d 339 (majority held that court improperly considered defendant’s prior abortions in determining sentence; constitutional right of privacy implicated).) We believe a defendant’s moral character, including the tendency to be irresponsible, is very much a legitimate factor for the court to consider, and we do not find that the court exceeded the bounds of decency or relevancy (see People v. Adkins (1968), 41 Ill. 2d 297, 301). We find no error, plain or otherwise, on the basis of the court’s comments. See McCumber, 132 Ill. App. 3d at 347 (Heiple, J., dissenting).

Defendant also argues that the trial court did not adequately consider his drug addiction and his potential for rehabilitation. Defendant mischaracterizes the record. The trial court did, in fact, consider defendant’s abuse of drugs, but determined, appropriately, that defendant was not entitled to lenient treatment. (See People v. Whealon (1989), 185 Ill. App. 3d 570, 573.) We believe it significant that defendant blamed the use of drugs for this criminal offense, yet the presentence report showed that he had not sought treatment for substance abuse and he did not seem to think he needed treatment for alcohol abuse despite the obvious symptoms. Defendant’s lengthy letter written to the court in which he promised to lead a better life is devoid of any mention of his seeking treatment for substance abuse.

Among other things, the court considered defendant’s history, including his criminal record, and his character. In weighing these factors against the seriousness of the offense and the protection of society, the court determined that imprisonment was a proper disposition. In weighing defendant’s rehabilitative potential, the court was not required to give greater weight to that consideration than to the seriousness of the offense. (People v. Mack (1985), 133 Ill. App. 3d 788, 793.) The 10-year sentence was well within the 30-year range of sentences permitted for this offense. There was no plain error here either.

We have found no error requiring reversal. However, we feel obligated to observe that this case exemplifies a recurring problem which occasions needless appeals and the waste of judicial resources: the trial judge’s use of ill-considered or ambiguous comments which have only a tangential relationship to the fixing of the sentence and from which a defendant, perhaps grasping at straws, will imaginatively construct an argument of prejudicial error even where none truly exists. Trial judges should be the exemplars of dignity and impartiality. They should exercise restraint over their conduct and utterances. They should suppress their personal predilections and control their tempers and emotions, limiting their comments and rulings to what is reasonably required for the orderly progress of the proceeding and refraining from the unnecessary disparagement of persons or issues. See ABA Standards Relating to the Administration of Criminal Justice, Function of the Trial Judge §6.4 (1974).

We strongly urge trial judges to be circumspect and limit their comments to the factors directly relevant to the sentencing issues and to make clear and unambiguous records from which we may determine the appropriateness of sentences. To do otherwise risks the reversal of the court’s judgment, a remand to the trial court for a new sentencing hearing and the concomitant waste of judicial resources.

The judgment of the circuit court is affirmed.

Affirmed.

GEIGER and DUNN, JJ., concur.