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    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas W. BELANGER, Defendant-Appellant.
    NO. 5-16-0191
    Appellate Court of Illinois, Fifth District.
    Opinion filed July 9, 2018 Modified upon denial of rehearing August 22, 2018
    Paige Clark Strawn, of Law Office of Paige Clark Strawn, P.C., of Mt.Vernon, for appellant.
    Kevin Kakac, State's Attorney, of Fairfield (Patrick Delfino, Patrick D. Daly, and Kelly M. Stacey, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   PRESIDING JUSTICE BARBERIS delivered the judgment of the court, with opinion.

¶ 1 After a bench trial, the defendant, Thomas Belanger, was declared a sexually dangerous person (SDP) under the Sexually Dangerous Persons Act (Act) ( 725 ILCS 205/0.01 et seq. (West 2014) ) and committed to the custody of the Illinois Department of Corrections (IDOC) for care and treatment. On appeal, the defendant argues that the State failed to prove beyond a reasonable doubt the he was an SDP. We affirm.

¶ 2 I. Background

¶ 3 In August 2015, the defendant was charged with one count of criminal sexual assault ( 720 ILCS 5/11-1.20(a)(1) (West 2014) ), one count of aggravated assault ( 720 ILCS 5/12-2(c)(1) (West 2014) ), two counts of unlawful restraint ( 720 ILCS 5/10-3(a) (West 2014) ), and three counts of aggravated domestic battery ( 720 ILCS 5/12-3.3(a-5) (West 2014) ). The criminal sexual assault charge alleged that the defendant committed an act of sexual penetration by the use of force against his fifth wife, D.B. The defendant later entered not guilty pleas to all charges.

¶ 4 While charges were pending, the State filed a petition to proceed and for evaluations in lieu of criminal prosecution under the Act. The State alleged that the defendant had an extensive criminal history that included the following: aggravated battery and sexual assault in 1989 of S.E., a 14-month-old family member, where the defendant stomped on her pubic area and anally raped her; escape and theft of a motor vehicle in 1990; aggravated battery and sexual assault in 2002, where the defendant tied up a man and anally penetrated him with a broomstick; and multiple acts of sexual violence against D.B., including one incident where he gagged her with a bandana, bound her hands, forced her to kneel while he beat her with a belt, and then raped her.

¶ 5 The Wayne County circuit court appointed Dr. Daniel Cuneo, a licensed clinical psychologist, and Dr. Angeline Stanislaus, a forensic psychiatrist, to conduct independent examinations of the defendant and render separate opinions on whether the defendant qualified as an SDP, as defined by the Act. Following the evaluations, the State filed a petition to declare the defendant an SDP, pursuant to the Act. The petition alleged that both Drs. Cuneo and Stanislaus had concluded within a reasonable degree of medical and psychiatric certainty that the defendant met the criteria as an SDP. The petition also alleged that the defendant suffered from a qualifying mental disorder for at least one year prior to the filing of the petition, that he had criminal propensities to commit sex offenses and acts of sexual molestation of children, that he had demonstrated criminal propensity by his past actions, and that he was substantially likely to engage in future acts of sexual violence if not confined. Prior to trial on the State's petition, the defendant waived his right to a jury trial.

¶ 6 A. Dr. Cuneo

¶ 7 In April 2016, the defendant's bench trial was held. Dr. Cuneo, the State's first expert witness, testified to the following. Dr. Cuneo was a licensed clinical psychologist primarily employed by the court systems in multiple counties throughout southern Illinois. Dr. Cuneo had conducted numerous sex offender risk assessments and sexually violent person evaluations, but acknowledged that the defendant's case was his first SDP evaluation. In preparing the defendant's evaluation, Dr. Cuneo had referenced the defendant's clinical and mental health records, criminal history, social history, and prior fitness evaluations.

¶ 8 Dr. Cuneo first conducted a mental status examination of the defendant to determine whether the defendant suffered from the requisite mental disorder. In doing so, he initially determined whether the defendant was feigning symptoms or responding truthfully to his inquiries by primarily relying on the defendant's documented mental health history. Dr. Cuneo testified that the defendant had "admitted every psychiatric symptom posed to him" and claimed to have suffered from hallucinations since childhood, which Dr. Cuneo noted was inconsistent with the defendant's mental health records. According to Dr. Cuneo, the defendant's mental health records, dating back to 1975, revealed that the defendant had always denied experiencing hallucinations. Dr. Cuneo concluded that the defendant's thinking was "somewhat paranoid in nature" but not delusional. Moreover, Dr. Cuneo noted that the defendant's past mental health treatments had been intertwined with the defendant's criminal activities, which Dr. Cuneo explained was particularly important because the defendant never voluntarily sought treatment unless legally required.

¶ 9 Dr. Cuneo also addressed the defendant's mood disorders. Often, the defendant would turn his "anger inward" and then become depressed and suicidal. In fact, the defendant told Dr. Cuneo that he had attempted suicide over 100 times, which was consistent with his previous hospitalization records. Additionally, the defendant's clinical records showed numerous examples where he turned his anger outward and lashed out toward others with rage. In particular, the defendant admitted that he had attempted to kill the boyfriend of his ex-wife, A.B., with a baseball bat, broken A.B.'s jaw, and sexually abused her for several hours. The defendant also greased a broomstick and forcibly inserted it into a restrained victim's anus. Moreover, the defendant beat and anally raped S.E., a 14-month-old family member.

¶ 10 Dr. Cuneo also addressed the defendant's history of substance abuse. According to research, Dr. Cuneo testified that mentally ill individuals who abuse substances were five times more dangerous. Dr. Cuneo noted that the defendant "repeatedly attempted to self-medicate with alcohol and drugs as a means to deal with his mood swings" and that "these substances dominated [the defendant's] life." In fact, the defendant had a long history of alcohol and substance use, which impaired his impulse control and greatly increased his "probability of dangerousness." In particular, the defendant had admitted to using cocaine before he beat and raped S.E. in 1989. Despite the defendant's long criminal history, he had failed to seek substance abuse treatment. Furthermore, according to Dr. Cuneo, the defendant had a history of "interlocking" sex and violence, specifically that the defendant's five failed marriages each contained domestic violence.

¶ 11 Upon completion of his evaluation, Dr. Cuneo opined, to a reasonable degree of psychiatric certainty, that the defendant was an SDP. Dr. Cuneo diagnosed the defendant with (1) personality disorder, not otherwise specified (NOS); (2) sexual sadism disorder (SSD), which had been present for over 30 years, starting in 1985; (3) alcohol, cannabis, and cocaine dependency in a controlled environment; and (4) learning disorder, NOS. Dr. Cuneo explained that the defendant's criminal activity and past statements demonstrated that he became sexually aroused through violence and rage and that he had a mental disorder for purposes of the Act.

¶ 12 Dr. Cuneo next addressed the defendant's inability to control his behavior and the likelihood that, if not confined, he would engage in future sex offenses. The defendant had a personality disorder, both borderline and antisocial, which showed a lack of empathy and "a certain amount of psychopathy." Dr. Cuneo had administered the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R), which determined that the defendant had a 73% chance of reoffending in the next five years. Thus, given the defendant's propensity to commit sexual offenses, Dr. Cuneo concluded that it was very likely that the defendant would reoffend in the future.

¶ 13 Although Dr. Cuneo acknowledged on cross-examination that the defendant did not reoffend in prison from 2003 to 2013, Dr. Cuneo explained that a trigger for the defendant was the use of alcohol and drugs, which was missing during the defendant's incarceration. Dr. Cuneo further explained that an individual's inability to control sadistic behavior in certain situations was not part of the definition of SSD. In particular, Dr. Cuneo stated that someone "can be a sexual sadist and still control [their] actions." Dr. Cuneo further explained that if you give an individual with sexual sadism "an opportunity to prey on victims, and I give him the opportunity to drink * * * to use a little meth and to use a little coke * * * that's going to screw up your impulse control, his potential for violence is going to go through the ceiling." Thus, Dr. Cuneo concluded that the probability of reoffending was greatly increased by the defendant's lengthy violent history and his personality disorder combined with the use of alcohol and drugs.

¶ 14 B. Dr. Stanislaus

¶ 15 Dr. Stanislaus, the State's second expert witness, testified to the following. Dr. Stanislaus was an expert forensic psychiatrist in the area of sex offender evaluation, including diagnosis and risk assessment; a licensed medical doctor; and chief medical director for the Missouri Department of Mental Health. As part of her professional experience, Dr. Stanislaus had performed more than 20 initial SDP evaluations and over 200 recovery SDP evaluations assessing whether an individual was still sexually dangerous.

¶ 16 Dr. Stanislaus addressed her process used to perform the defendant's SDP evaluation. Dr. Stanislaus reviewed the defendant's criminal history and investigative reports associated with his previous sex offenses, prior fitness evaluations, and treatment records from IDOC. Dr. Stanislaus then interviewed the defendant for approximately 90 minutes. When Dr. Stanislaus asked the defendant to explain the events surrounding the beating and rape of S.E., the defendant stated that S.E. had fallen off of a bed and broken her legs. The defendant provided no other details of the event. Dr. Stanislaus noted that the defendant's explanation was inconsistent with police reports. In fact, records demonstrated that the defendant had angrily thrown S.E. on the floor and stomped on her before he anally raped her. The medical records showed that S.E.'s arms and legs were fractured, and there were signs that she had suffered prior fractures several months before. Additionally, S.E. had anal dilation with internal and external bruising, and she had blood in her urine and vagina. The defendant was later convicted and sentenced to 12 years in prison. After his release, he reoffended in 2002.

¶ 17 Next, Dr. Stanislaus discussed the defendant's 2002 conviction for sexual assault. In particular, the defendant's act of greasing a broomstick and forcibly inserting it into the victim's anus, while the victim was tied to a bed, demonstrated another act of sexual violence. Dr. Stanislaus noted that the defendant was convicted and sentenced to eight years in prison. Following his release and discharge from IDOC in 2012, the defendant committed additional acts of sexual violence, which included multiple sexual assaults of D.B. in 2015.

¶ 18 Next, Dr. Stanislaus discussed the defendant's 2015 sexual assaults of D.B., noting that they were "quite significant" in arriving at a diagnosis, as they had all occurred after D.B. had refused the defendant's sexual advances. In May 2014, the defendant broke D.B.'s nose after he forcibly pressed his hands on her nose. Additionally, in January 2015, he sexually assaulted D.B. where he gagged her, tied her hands, forced her to kneel, and then beat her with a belt and raped her.

¶ 19 Dr. Stanislaus also addressed the defendant's nonsexual criminal history that started when he was convicted of burglary at the age of 17. Within one year, the defendant had violated his probation by committing additional burglary and theft offenses. After he finished a three-year prison sentence, the defendant returned to prison following numerous parole violations.

Following his release, the defendant was convicted and sentenced to prison for three years for intimidation, aggravated assault, criminal damage to property, and resisting a peace officer. In 1990, while in custody for the 1989 sexual assault of S.E., the defendant escaped from jail and stole a vehicle. He was subsequently convicted and sentenced to five years in prison on the escape and theft of motor vehicle offenses. Dr. Stanislaus explained that these crimes and the defendant's violations of probation and parole did not involve sexual acts but were still relevant to the SDP evaluation for two reasons. First, the presence of "more criminal behaviors in a sex offender increases sexual recidivism." Second, it "talks about [the defendant's] personality disorder, which is antisocial personality disorder where he has difficulty following rules and confining [sic ] to the norms of society."

¶ 20 Dr. Stanislaus also considered the defendant's alcohol and substance abuse and his social history. According to Dr. Stanislaus, the defendant had a propensity to commit sex offenses, and the use of drugs enabled him to act on his sexual urges. When asked whether the defendant's lack of reoffending in prison was important, Dr. Stanislaus explained that the defendant was in a "contained environment" and "intensively supervised and monitored" while incarcerated. This 10-year period was unimportant to her because the defendant was not in the community and had demonstrated that he would reoffend upon release several times. Dr. Stanislaus also explained that the defendant had numerous failed marriages, all involving domestic violence. According to Dr. Stanislaus, the defendant's social history and poor functioning ability increased his risk level of "reengaging" in sexual violence.

¶ 21 Similar to Dr. Cuneo, Dr. Stanislaus opined, to a reasonable degree of psychiatric certainty, that the defendant was an SDP and, if not confined, it was substantially probable that he would reoffend in the future. Dr. Stanislaus diagnosed the defendant with sexual sadism because he became intensely sexually aroused when nonconsenting persons physically or psychologically suffered; antisocial personality disorder, which was exhibited by the defendant's callousness, lack of remorse, and inability to value the rights of others; and other psychotic disorders. She explained that the defendant's mental disorders affected his volitional capacity and increased his propensity to commit sexual offenses. Lastly, after conducting a Static-99 risk analysis, she concluded that the defendant's likelihood to reoffend was 2.7 times greater than the typical sex offender.

¶ 22 C. D.B.

¶ 23 D.B. testified to the following. D.B. started dating the defendant in March 2014, and the two were married on May 23, 2014. Three days later, after she refused the defendant sex, he pressed his hands over her nose, preventing her from breathing for 30 to 45 seconds, until her nose bled. She sought medical treatment at a local hospital several days later where it was determined that her nose was broken. According to D.B., when she refused to perform oral sex, which he demanded nearly every day, he "smack[ed]" her until she complied. When she did perform oral sex on him, the defendant forced her head down until she could not breathe. D.B. recounted several instances where he called her a whore and strangled her after she refused to have sex. When D.B. and the defendant did have sex, it sometimes started as consensual, but he would often force her to have anal sex. In fact, she explained that the defendant "ejaculated much quicker" during violent, nonconsensual sexual acts. Lastly, in January 2015, he used a bandana to gag her, bound her hands and forced her into a kneeling position, and then beat her with a belt and raped her.

¶ 24 During the trial, the State admitted certified copies of the defendant's prior convictions and presented police officer testimony regarding the defendant's admissions during the corresponding investigations. The circuit court found that the State had proven beyond a reasonable doubt that the defendant was an SDP, as defined by the Act. The court committed the defendant to the custody of IDOC for care and treatment. On August 27, 2016, the defendant filed a motion for new trial, which the court denied. The defendant filed a timely notice of appeal.

¶ 25 II. Analysis

¶ 26 The sole issue on appeal is whether the State failed to prove beyond a reasonable doubt that the defendant met the criteria of an SDP. In particular, the defendant asserts that the State failed to meet its burden where there was no evidence that he committed any acts of sexual sadism while incarcerated for 10 years. In support, the defendant alleges that he "controlled himself for at least a decade."

¶ 27 The State has the burden to prove beyond a reasonable doubt that a defendant is an SDP. 725 ILCS 205/3.01 (West 2014). Under section 1.01 of the Act, an SDP is defined as follows:

"All persons [1] suffering from a mental disorder, which mental disorder has existed for a period of not less than one year, immediately prior to the filing of the petition hereinafter provided for, coupled with [2] criminal propensities to the commission of sex offenses, and [3] who have demonstrated propensities toward acts of sexual assault or acts of sexual molestation of children * * *." 725 ILCS 205/1.01 (West 2014).

Our supreme court has construed the term " 'mental disorder,' as used in the [Act], to mean a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in the commission of sex offenses and results in serious difficulty controlling sexual behavior." People v. Masterson , 207 Ill. 2d 305, 329, 278 Ill.Dec. 351, 798 N.E.2d 735 (2003). "Thus, a finding of sexual dangerousness premised upon the elements of section 1.01 of the [Act] [citation] must hereafter be accompanied by an explicit finding that it is 'substantially probable' the person subject to the commitment proceeding will engage in the commission of sex offenses in the future if not confined." Masterson , 207 Ill. 2d at 330, 278 Ill.Dec. 351, 798 N.E.2d 735. While proceedings under the Act are civil in nature, the State's burden of proof is beyond a reasonable doubt. 725 ILCS 205/3.01 (West 2014).

¶ 28 Since a circuit court's finding that a defendant was an SDP is one of fact, a "reviewing court will affirm the judgment, after considering all of the evidence introduced at trial in the light most favorable to the State, if it determines that any rational trier of fact could have found the essential elements to be proved beyond a reasonable doubt." In re Detention of Hunter , 2013 IL App (4th) 120299, ¶ 44, 367 Ill.Dec. 803, 982 N.E.2d 953. Moreover, a reviewing court will not substitute its judgment, " 'unless the evidence is so improbable as to raise a reasonable doubt that the defendant is a sexually dangerous person.' " Hunter , 2013 IL App (4th) 120299, ¶ 44, 367 Ill.Dec. 803, 982 N.E.2d 953 (quoting People v. Bailey , 405 Ill. App. 3d 154, 171, 344 Ill.Dec. 708, 937 N.E.2d 731 (2010) ).

¶ 29 On appeal, the defendant argues that both Drs. Cuneo and Stanislaus admitted that he did not meet one of the qualifications for a diagnosis of sexual sadism and each testified that he did not commit any acts of sexual sadism for more than 10 years while he was incarcerated. However, the record more precisely demonstrates that Drs. Cuneo and Stanislaus diagnosed the defendant with SSD and antisocial personality disorder, even though there was no proof that the defendant committed acts of sexual sadism while incarcerated. In particular, Dr. Cuneo testified that someone "can be a sexual sadist and still control [their] actions." Additionally, Dr. Cuneo explained that whether an individual was able to control his or her sadistic behavior in certain situations-here, prison-was not an element of SSD. Similarly, Dr. Stanislaus explained that the defendant was in a "contained environment" and "intensively supervised and monitored" while incarcerated. Moreover, even though the defendant did not reoffend while incarcerated, Dr. Stanislaus emphasized that his criminal records showed that he had reoffended immediately following his release from prison on several occasions.

¶ 30 Additionally, Drs. Cuneo and Stanislaus both opined, to a reasonable degree of medical and psychiatric certainty, that it was substantially probable that, if not confined, the defendant would engage in future sex offenses. According to both expert doctors, the likelihood of the defendant reoffending was greater when opportunities, such as alcohol or drugs, were present, which the defendant could not access during his incarceration. Moreover, both doctors administered statistical tests to determine the defendant's likelihood of reoffending. Following Dr. Cuneo's administration of the MnSOST-R screening tool, he determined that there was a 73% chance that the defendant would reoffend within five years. Dr. Stanislaus conducted a Static-99 risk analysis and concluded that the defendant's likelihood to reoffend was 2.7 times greater than the typical sex offender. As such, the record demonstrates that the circuit court found the unrebutted testimonies of Drs. Cuneo and Stanislaus credible, as they were well qualified and reasoned in their conclusions. See In re Detention of Tittlebach , 324 Ill. App. 3d 6, 11, 257 Ill.Dec. 826, 754 N.E.2d 484 (2001) (trial court was responsible for assessing witness credibility, resolving conflicts in evidence, and drawing reasonable inferences from the evidence).

¶ 31 After considering the record in its entirety, we conclude that the circuit court could have reasonably found that the State proved beyond a reasonable doubt that the defendant met the criteria of an SDP under the Act. As stated in detail above, there was overwhelming evidence to support the expert doctors' opinions that the defendant suffered from SSD and antisocial personality disorder, which affected his emotional and volitional capacity and predisposed him to engage in the commission of sex offenses. Additionally, the evidence strongly supports the court's conclusion that it was substantially probable that, if not confined, the defendant would engage in the commission of future sex offenses.

¶ 32 III. Conclusion

¶ 33 For the reasons stated, we affirm the circuit court of Wayne County finding the defendant an SDP and committing him to the custody of the IDOC for care and treatment.

¶ 34 Affirmed.

Justices Cates and Moore concurred in the judgment and opinion.


text:
    Steven CAMPBELL, Plaintiff-Appellant, v. Kevin AUTENRIEB, Defendant-Appellee.
    NO. 5-17-0148
    Appellate Court of Illinois, Fifth District.
    Opinion Filed: July 10, 2018 Rehearing denied August 13, 2018
    Roy C. Dripps III, Charles W. Armbruster III, and Michael T. Blotevogel, of Armbruster, Dripps, Winterscheidt & Blotevogel, LLC, of Maryville, for appellant.
    Michael P. Murphy, of Freeark, Harvey & Mendillo, P.C., of Belleville, for appellee.
   JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion.

¶ 1 This appeal stems from a two-count complaint brought by plaintiff, Steven Campbell, to recover damages caused by the alleged strict liability and negligence of defendant, Kevin Autenrieb, in failing to keep his dog under control. Plaintiff's action ultimately proceeded to a jury trial, where the trial court directed a verdict on liability in favor of plaintiff and against defendant at the close of all evidence. The jury returned a verdict of $16,000 in damages in favor of plaintiff and against defendant. On appeal, plaintiff argues (1) the trial court erred in admitting certain medical testimony regarding potential alternative causes of plaintiff's injuries and (2) the jury's award of damages was against the manifest weight of the evidence. For the following reasons, we reverse and remand this cause for further proceedings consistent with this opinion.

¶ 2 BACKGROUND

¶ 3 The following pertinent testimony was adduced at trial. We limit our discussion to the evidence necessary to provide context.

¶ 4 A. Plaintiff's Testimony

¶ 5 Plaintiff testified that on July 18, 2012, while he was working for his employer, United Parcel Service (UPS), an unleashed dog owned by defendant lunged at plaintiff and "knocked [him] back." Plaintiff injured his back as a result of the incident. Thereafter, plaintiff went to Midwest Occupational Medicine to receive medical treatment. Plaintiff did not finish his work shift that day.

¶ 6 Plaintiff returned to Midwest Occupational Medicine eight days after the incident and reported he was feeling much better, which plaintiff attributed to the medicine he was taking. Plaintiff volunteered to take vacation time off work during this period "to give [himself] every opportunity to get rid of the pain." Plaintiff testified he was working again by late July or early August 2012 but was not performing his regular duties.

¶ 7 Plaintiff again returned to Midwest Occupational Medicine in September 2012 due to recurring back pain. Plaintiff eventually consulted a specialist, Dr. Kennedy, in November 2012. Dr. Kennedy prescribed plaintiff physical therapy and injections. Plaintiff testified he followed all of Dr. Kennedy's instructions. The last day plaintiff was treated by Dr. Kennedy was March 18, 2016.

¶ 8 Plaintiff testified he missed time from work between July 2012 and September 2015. In July 2014, UPS instructed plaintiff to see Dr. DeGrange, who ordered plaintiff back to work after conducting an examination. Plaintiff testified he was not working prior to being examined by Dr. DeGrange. When plaintiff returned to work, he had not completed all of the physical therapy prescribed by Dr. Kennedy. Plaintiff worked for a couple weeks following his appointment with Dr. DeGrange before injuring his back while moving a deer stand for UPS. Plaintiff subsequently took a leave of absence from work and went to see Dr. Kennedy, who recommended physical therapy and conservative treatment. Plaintiff returned to work in September 2015.

¶ 9 Plaintiff testified that from September 2012 until the present day, "[t]here isn't a day that goes by that I don't have pain." Plaintiff described his pain as a serious bruise in his back and testified he has pain which radiates down his leg. Plaintiff stated he is able to function on some days with medication and struggles on other days. Plaintiff testified he had incurred $200,000 in lost wages since the incident. Plaintiff further testified he no longer vacations and was forced to sell his motorcycle, boat, and camper as a result of the incident.

¶ 10 On cross-examination, plaintiff was impeached based on an incorrect discovery response to a question regarding whether plaintiff was able to return to work following the incident. Plaintiff responded he was unable to return to work and had not returned to work since the incident, when in fact plaintiff had worked for a period of time following the incident. Plaintiff conceded UPS records showed plaintiff engaged in work activity from August 2012 to April 2013. Plaintiff also testified that on the day of the incident, he experienced unbearable pain which he essentially marked as a "ten out of ten pain." When plaintiff returned to Midwest Occupational Medicine the day after the incident, however, he testified he marked his pain level as a 3 or 4 out of 10.

¶ 11 Further evidence adduced on cross-examination showed the physicians who treated plaintiff at Midwest Occupational Medicine following the incident did not recommend that plaintiff be taken off work. From April 2013, when plaintiff took a leave of absence from work, until August 2014, plaintiff testified the only treatment he received was from Dr. Kennedy. Also on cross-examination, plaintiff testified he did not work from October 29, 2014, until September 21, 2015, following an incident in which he was injured while moving a deer stand at work. Plaintiff testified he did not agree that it was common for individuals in his employment position to have bad backs. Plaintiff conceded that no physician had placed any type of restriction on him at the time of trial.

¶ 12 B. Dr. Kennedy's Testimony

¶ 13 Plaintiff presented deposition testimony from Dr. Kennedy, a board-certified neurosurgeon who initially treated plaintiff on November 28, 2012. After performing a physical examination on plaintiff, Dr. Kennedy testified the most notable findings were that plaintiff had significant limitation in the range of motion of his back and plaintiff's ability to bend forward was significantly reduced. Dr. Kennedy recommended physical therapy in addition to injections into the areas of particular tenderness in the muscle groups. Dr. Kennedy continued to treat plaintiff until early 2016. Dr. Kennedy testified that an MRI conducted early in plaintiff's treatment showed bulging discs and an annular fissure. Dr. Kennedy testified it was evident from the MRI that plaintiff's annulus had been injured, which he opined was likely a result of the dog incident.

¶ 14 Dr. Kennedy further testified he was aware of an examination of plaintiff performed by Dr. DeGrange in 2014 that recommended plaintiff return to work without restrictions. Dr. Kennedy testified that Dr. DeGrange's opinion about plaintiff's ability to return to work was very different from his opinion, which concluded plaintiff was not ready to return to work. Dr. Kennedy also testified regarding the incident in which plaintiff injured his back on October 29, 2014, as he was delivering a deer stand. Dr. Kennedy opined this event was not a new injury but an aggravation of his prior injury. Dr. Kennedy opined that because plaintiff "never really fully recovered" from his prior injury, he was "vulnerable to events that otherwise might not bother him."

¶ 15 Dr. Kennedy testified he last saw plaintiff in March 2016. At that time, Kennedy testified plaintiff was generally able to function but was not symptom-free and experienced aching pains. Kennedy opined plaintiff was not medically able to work for UPS without restrictions from July 18, 2012, the date of the dog incident, until he released plaintiff to return to work in September 2015.

¶ 16 C. Dr. DeGrange's Testimony

¶ 17 Defendant presented deposition testimony from Dr. DeGrange, a board-certified doctor who first examined plaintiff in July 2014 at the request of plaintiff's employer, UPS. Dr. DeGrange testified plaintiff had a chief complaint of low back pain, and the symptoms were present on a daily basis. He identified plaintiff's complaint to be at the lumbosacral area. Dr. DeGrange characterized the symptoms as "frequently mild, meaning they were definitely there and noticeable and occasionally moderate causing significant problems with activities either professionally or of daily living." Dr. DeGrange's physical examination of plaintiff concluded he did not look particularly uncomfortable and he did not have acute distress. Dr. DeGrange opined the diagnosis of plaintiff's injury was a lumbar strain. Dr. DeGrange opined plaintiff reached maximum medical improvement by July 26, 2012, which was eight days after the dog incident, and plaintiff did not need any additional medical treatment thereafter. Dr. DeGrange further opined the dog incident may have aggravated plaintiff's preexisting degeneration and plaintiff had no permanent injury to his low back as a result of the dog incident. Dr. DeGrange testified that after seeing plaintiff in July 2014, he did not place any restrictions on plaintiff's activities and released plaintiff to return to work.

¶ 18 Dr. DeGrange also testified he examined plaintiff a second time in February 2015 following the incident in which plaintiff injured himself while moving a deer stand for UPS. Dr. DeGrange's second examination concluded plaintiff sustained a lumbar strain and plaintiff had symptoms of a radiculopathy that involved his right leg. Dr. DeGrange opined that none of the symptoms or findings he made on his second evaluation of plaintiff were related to the dog incident.

¶ 19 D. Cross-Examination Testimony Admitted Over Plaintiff's Objection

¶ 20 During trial, plaintiff sought to exclude certain cross-examination testimony that defense counsel elicited from Dr. Kennedy regarding potential alternative causes of plaintiff's injuries, arguing the testimony was not offered to a reasonable degree of medical certainty. Plaintiff alleged the testimony was prohibited under our supreme court decision in Voykin v. Estate of DeBoer , 192 Ill. 2d 49, 248 Ill.Dec. 277, 733 N.E.2d 1275 (2000). The trial court admitted the testimony on the basis that (1) it was elicited on cross-examination as opposed to direct examination and (2) it pertained to potential alternate or subsequent causes of plaintiff's injuries rather than a preexisting condition. The evidence admitted over plaintiff's objection was Dr. Kennedy's deposition testimony:

"[COUNSEL FOR DEFENDANT]: Okay. Sometimes people's back will just go out for no reason; would you agree with that.
[DR. KENNEDY]: Yes.
Q. They call it an idiopathic cause?
A. Right.
* * *
Q. And the annular fissure, we talked about that. That could be caused-You mentioned it could be caused by an incident like he described to you with the dog, but it could be caused by many other factors; would you agree?
A. Possible.
Q. Lifting, twisting, any kind of daily activities involving those type of events?
A. Well, I think as a general proposition that's possible, yes."

¶ 21 E. Jury Verdict

¶ 22 At the close of all evidence, plaintiff moved for a directed verdict on liability, which the trial court granted. Following deliberations, the jury returned a verdict of $16,000 in favor of plaintiff and against defendant. Specifically, the jury awarded plaintiff: $6000 for loss of a normal life experienced and reasonably certain to be experienced in the future; $6000 for the pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries; and $4000 for the value of time, earnings, salaries, and benefits lost, and the present cash value of the time, earnings, salaries, and benefits reasonably certain to be lost in the future. Plaintiff subsequently filed a motion for a new trial on damages, which the trial court denied.

¶ 23 This appeal followed.

¶ 24 ANALYSIS

¶ 25 Plaintiff first alleges the trial court committed prejudicial error in admitting speculative testimony regarding potential alternative causes of plaintiff's injuries and pain and suffering. Conversely, defendant contends the trial court did not commit prejudicial error in admitting foundation and/or background testimony regarding general potential causes for plaintiff's injuries and plaintiff's pain and suffering.

¶ 26 Evidentiary rulings, including whether to allow an expert to present certain opinions, are within the sound discretion of the trial court and will not be disturbed on review absent a clear abuse of discretion. People v. Wheeler , 226 Ill. 2d 92, 132, 313 Ill.Dec. 1, 871 N.E.2d 728 (2007) ; Cetera v. DiFilippo , 404 Ill. App. 3d 20, 36-37, 343 Ill.Dec. 182, 934 N.E.2d 506 (2010). This is the most deferential standard of review recognized by law, and a reviewing court's mere disagreement with the trial court's decision is not enough to make the decision an abuse of discretion. People v. Hancock , 2014 IL App (4th) 131069, ¶ 121, 385 Ill.Dec. 396, 18 N.E.3d 941. Rather, a trial court abuses its discretion only if it acts arbitrarily without the employment of conscientious judgment, exceeds the bounds of reason and disregards recognized principles of law, or if no reasonable person would take the position adopted by the trial court. Myrick v. Union Pacific R.R. Co. , 2017 IL App (1st) 161023, ¶ 21, 416 Ill.Dec. 522, 84 N.E.3d 504. If the trial court's decision rests on an error of law, "then it is clear that an abuse of discretion has occurred, as it is always an abuse of discretion to base a decision on an incorrect view of the law." Thompson v. Gordon , 356 Ill. App. 3d 447, 461, 293 Ill.Dec. 102, 827 N.E.2d 983 (2005).

¶ 27 Here, plaintiff argues the trial court improperly admitted the following deposition testimony elicited from Dr. Kennedy by defense counsel on cross-examination:

"[COUNSEL FOR DEFENDANT]: Okay. Sometimes people's back will just go out for no reason; would you agree with that.
[DR. KENNEDY]: Yes.
Q. They call it an idiopathic cause?
A. Right.
* * *
Q. And the annular fissure, we talked about that. That could be caused-You mentioned it could be caused by an incident like he described to you with the dog, but it could be caused by many other factors; would you agree?
A. Possible.
Q. Lifting, twisting, any kind of daily activities involving those type of events?
A. Well, I think as a general proposition that's possible, yes."

¶ 28 The parties agree the court admitted this testimony on the basis that (1) it was elicited on cross-examination as opposed to direct examination and (2) it pertained to potential alternate or subsequent causes of plaintiff's injuries rather than a preexisting condition. However, plaintiff contends the trial court erred in admitting this evidence because testimony such as "[s]ometimes people's back will just go out for no reason," it is possible an annular fissure "could be caused by many other factors," and plaintiff's injuries could have been caused by "[l]ifting, twisting, any kind of daily activities involving those type of events" is the type of speculative testimony our supreme court in Voykin v. Estate of DeBoer , 192 Ill. 2d 49, 248 Ill.Dec. 277, 733 N.E.2d 1275 (2000), held to be inadmissible because it allows the jury to make medical assessments based on conjecture.

¶ 29 In Voykin , the plaintiff sustained injuries to his neck and back in an automobile accident caused by the defendant. Voykin , 192 Ill. 2d at 51, 248 Ill.Dec. 277, 733 N.E.2d 1275. At trial, the defendant sought to introduce evidence of a lower back injury the plaintiff had suffered approximately five years before the accident. Voykin , 192 Ill. 2d at 52, 248 Ill.Dec. 277, 733 N.E.2d 1275. The trial court admitted the evidence, but the appellate court reversed and remanded for a new trial after concluding evidence of prior injuries should not be admitted unless the defendant presents evidence of causation between the prior and present injuries. Voykin , 192 Ill. 2d at 52-53, 248 Ill.Dec. 277, 733 N.E.2d 1275. The defendant's petition for leave to appeal was subsequently granted. Voykin , 192 Ill. 2d at 53, 248 Ill.Dec. 277, 733 N.E.2d 1275.

¶ 30 Our supreme court affirmed the appellate court's reversal, holding that when a defendant seeks to introduce evidence of a plaintiff's prior injury or medical condition at trial, the defendant must first introduce expert evidence showing why the prior injury or medical condition is relevant to causation, damages, or some other issue of consequence. Voykin , 192 Ill. 2d at 59, 248 Ill.Dec. 277, 733 N.E.2d 1275 ; Noble v. Earle M. Jorgensen Co. , 2013 IL App (5th) 120248, ¶ 21, 371 Ill.Dec. 477, 990 N.E.2d 377. The Voykin court further concluded there is an exception to the requirement for expert testimony, which arises when the trial court determines a "lay person can readily appraise the relationship" between the plaintiff's prior and current injuries without expert assistance. Voykin , 192 Ill. 2d at 59, 248 Ill.Dec. 277, 733 N.E.2d 1275.

¶ 31 In reaching its decision, our supreme court rejected the evidentiary rule known as "the same part of the body rule," which had provided: "[I]f a plaintiff has previously suffered an injury to the same part of the body, then that previous injury is automatically relevant to the present injury simply because it affected the same part of the body." Voykin , 192 Ill. 2d at 57, 248 Ill.Dec. 277, 733 N.E.2d 1275 ; DiCosola v. Bowman , 342 Ill. App. 3d 530, 536, 276 Ill.Dec. 625, 794 N.E.2d 875 (2003). The Voykin court characterized "the same part of the body rule" as "nothing more than a bright-line relevancy standard" and criticized the automatic relevancy basis of the rule. Voykin , 192 Ill. 2d at 57, 248 Ill.Dec. 277, 733 N.E.2d 1275 ; DiCosola , 342 Ill. App. 3d at 536, 276 Ill.Dec. 625, 794 N.E.2d 875. As the court observed, " ' "[r]elevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case." ' [Citation.]" Voykin , 192 Ill. 2d at 57, 248 Ill.Dec. 277, 733 N.E.2d 1275 ; DiCosola , 342 Ill. App. 3d at 536, 276 Ill.Dec. 625, 794 N.E.2d 875.

¶ 32 Illinois courts have since extended the Voykin holding to evidence of subsequent injuries in addition to prior injuries. In Caliban v. Patel , 322 Ill. App. 3d 251, 256, 255 Ill.Dec. 817, 750 N.E.2d 734 (2001), a motorist brought a negligence action to recover damages sustained in an automobile accident. On appeal, the plaintiff argued the trial court erred in denying his motion in limine , which sought to prevent the defendant from introducing evidence or argument concerning plaintiff's prior and subsequent injuries and medical conditions. Caliban , 322 Ill. App. 3d at 253, 255 Ill.Dec. 817, 750 N.E.2d 734. Citing Voykin , the court concluded the trial court erred when it allowed the introduction of evidence regarding a subsequent injury without requiring the defendant to offer relevant, supporting expert testimony. Caliban , 322 Ill. App. 3d at 256, 255 Ill.Dec. 817, 750 N.E.2d 734.

¶ 33 In Obszanski v. Foster Wheeler Construction, Inc. , 328 Ill. App. 3d 550, 559, 262 Ill.Dec. 585, 765 N.E.2d 1193 (2002), the court relied on Voykin in concluding the introduction of evidence on cross-examination concerning an ironworker's subsequent injury without any supporting expert testimony was error. As the court observed:

"This type of questioning by defense counsel without expert testimony could be prejudicial and in conflict with the Voykin decision. With an appropriate foundation laid by a medical expert, if that could be done, defense counsel should be allowed to show that the subsequent injury is a 'cause' of plaintiff's current complaint. This is difficult because the injury in question is claimed to be permanent in nature. If medical evidence can show enhanced or separate pain from the subsequent injury, then the jury should hear it. If not, then it should not come in at all." Obszanski , 328 Ill. App. 3d at 560, 262 Ill.Dec. 585, 765 N.E.2d 1193.

¶ 34 In light of the foregoing, it is clear Voykin applies to testimony elicited on cross-examination and to subsequent injuries in addition to prior injuries. That being said, we are unaware of any decision by this court that has resolved the specific question presented to us, which is essentially whether the trial court erred in admitting expert testimony regarding unsupported, potential alternative causes of plaintiff's injuries. Although we are unaware of any decision that has resolved this specific issue, we find the reasoning of Voykin as it pertains to evidence of prior and subsequent injuries applies to unsupported evidence of phantom causes of injuries.

¶ 35 As previously stated, defense counsel in this case elicited testimony from Dr. Kennedy regarding potential alternative causes of plaintiff's injuries, including that "[s]ometimes people's back will just go out for no reason," plaintiff's annular fissure "could be caused by many other factors," and plaintiff's annular fissure could be caused by "[l]ifting, twisting, any kind of daily activities involving those type of events." The record shows defense counsel failed to provide any medical testimony or other competent evidence establishing a causal link between the phantom causes of injuries suggested and plaintiff's present injuries complained of as a result of the dog incident. Moreover, Dr. Kennedy later dismissed the possibility that plaintiff's injuries were incurred as a result of an alternative phantom cause:

"[COUNSEL FOR PLAINTIFF]: Okay. Just so the record is clear, you were asked if other events could have caused this kind of injury. Has anyone provided you with a record, a statement, a history, a video, anything suggesting there was an event, other than the dog attack in July of 2012, that caused [plaintiff's] low back pain?
[DR. KENNEDY]: No, there was no other event in this case. The question was regarding potential. But in actuality there was no other injury that [plaintiff] suffered that I know of."

¶ 36 Dr. Kennedy's hypothetical testimony elicited from defense counsel invited the jury to speculate about unsubstantiated causes of plaintiff's injuries, which is precisely the type of speculative testimony Voykin guarded against. As this court has explained, the rationale for requiring a defendant to present expert testimony showing why a separate injury is relevant to causation is "to avoid what amount[s] to the jury forming medical opinions." Hawkes v. Casino Queen, Inc. , 336 Ill. App. 3d 994, 1008, 271 Ill.Dec. 575, 785 N.E.2d 507 (2003). Nothing from Dr. Kennedy's testimony regarding potential alternative causes of plaintiff's injuries demonstrates why the phantom causes are relevant under the Voykin standard. For these reasons, we find the trial court abused its discretion in admitting this testimony.

¶ 37 Lending support to our conclusion are two decisions decided by this court: Hawkes , 336 Ill. App. 3d 994, 271 Ill.Dec. 575, 785 N.E.2d 507, and Noble , 2013 IL App (5th) 120248, 371 Ill.Dec. 477, 990 N.E.2d 377. In Hawkes , a patron brought a premises liability action against the owner of a casino after he tripped and fell in the casino's restroom, sustaining injuries to his head, neck, and back. Shortly before the trial, the plaintiff submitted a motion in limine seeking to bar the defendant from mentioning or referring to prior neck injuries and related treatment the plaintiff received prior to his fall. Hawkes , 336 Ill. App. 3d at 999, 271 Ill.Dec. 575, 785 N.E.2d 507. Relying on Voykin , the plaintiff's motion sought to prevent the defendant from suggesting the plaintiff's injuries were a result of a preexisting condition involving his neck. Hawkes , 336 Ill. App. 3d at 999, 271 Ill.Dec. 575, 785 N.E.2d 507. The trial court granted the plaintiff's motion and barred the defendant from mentioning the plaintiff's prior neck injuries and treatment, as well as any opinions or cross-examination regarding whether the plaintiff had a prior bulging disc in his cervical area. Hawkes , 336 Ill. App. 3d at 999, 271 Ill.Dec. 575, 785 N.E.2d 507. On appeal, the defendant argued the court erred in granting the plaintiff's motion. Hawkes , 336 Ill. App. 3d at 1005, 271 Ill.Dec. 575, 785 N.E.2d 507.

¶ 38 This court affirmed the exclusion of evidence of the plaintiff's prior conditions. Regarding the defendant's expert testimony attempting to establish the plaintiff suffered from a preexisting condition, namely a disc bulge, this court concluded said testimony did not negate the cause of the plaintiff's fall or the resulting injuries. Hawkes , 336 Ill. App. 3d at 1006, 271 Ill.Dec. 575, 785 N.E.2d 507. This court further concluded "the fact that plaintiff's prior injuries could have caused a disc to bulge in his neck does not make it less likely that defendant's actions caused any of plaintiff's injury." (Emphases in original.) Hawkes , 336 Ill. App. 3d at 1006, 271 Ill.Dec. 575, 785 N.E.2d 507.

¶ 39 The Hawkes court also rejected the defendant's expert testimony elicited on cross-examination that allegedly showed the plaintiff was symptomatic at his C5 vertebrae prior to his fall and the disc injury for which the plaintiff received surgery was caused by something other than the fall. Hawkes , 336 Ill. App. 3d at 1007, 271 Ill.Dec. 575, 785 N.E.2d 507. The court concluded that neither of the experts' testimony, when taken alone, demonstrated why the prior injury was relevant under the Voykin standard. Hawkes , 336 Ill. App. 3d at 1008, 271 Ill.Dec. 575, 785 N.E.2d 507. The court found the experts' testimony amounted to little more than supposition and conjecture. Hawkes , 336 Ill. App. 3d at 1008, 271 Ill.Dec. 575, 785 N.E.2d 507. The court stated that the essential next step of assessing the relationship between the prior injury and the present injury from the experts' testimony would be left to the jury, which "is exactly what the Voykin decision guarded against." Hawkes , 336 Ill. App. 3d at 1007-08, 271 Ill.Dec. 575, 785 N.E.2d 507. As this court explained, "In order to avoid what amounted to the jury forming medical opinions, the Illinois Supreme Court has instructed that a defendant bears the burden of 'introduc[ing] expert evidence demonstrating why the prior injury is relevant to causation, damages, or some other issue of consequence.' (Emphasis added.)" Hawkes , 336 Ill. App. 3d at 1008, 271 Ill.Dec. 575, 785 N.E.2d 507 (quoting Voykin , 192 Ill. 2d at 59, 248 Ill.Dec. 277, 733 N.E.2d 1275 ). Accordingly, this court affirmed the exclusion of such evidence.

¶ 40 In Noble , the plaintiff brought a negligence action against the defendant and his employer, seeking damages for injuries allegedly sustained to her coccyx, piriformis muscle, and sacroiliac joint in a motor vehicle accident. Noble , 2013 IL App (5th) 120248, ¶¶ 1-2, 371 Ill.Dec. 477, 990 N.E.2d 377. The defendants sought to present evidence showing the plaintiff was treated for pain in her low back and pelvic area prior to the motor vehicle accident and that she suffered a subsequent fracture in her low back. Noble , 2013 IL App (5th) 120248, ¶ 22, 371 Ill.Dec. 477, 990 N.E.2d 377. Prior to trial, the plaintiff filed a motion in limine seeking to prevent the defendants from referencing any injuries and medical treatment to portions of the plaintiff's body unrelated to the coccyx, sacroiliac joint, and piriformis muscle. Noble , 2013 IL App (5th) 120248, ¶ 3, 371 Ill.Dec. 477, 990 N.E.2d 377. The plaintiff asserted this evidence should be barred on the basis that the defendants failed to present any medical or other competent evidence establishing a causal connection between the plaintiff's prior and subsequent medical conditions and the injuries she alleged to have suffered as a result of the accident, as required by Voykin . Noble , 2013 IL App (5th) 120248, ¶ 3, 371 Ill.Dec. 477, 990 N.E.2d 377. The trial court granted the plaintiff's motion in limine , barring the defendants from mentioning the plaintiff's prior low back injuries and treatment and her subsequent fracture. Noble , 2013 IL App (5th) 120248, ¶ 19, 371 Ill.Dec. 477, 990 N.E.2d 377.

¶ 41 On appeal, the defendants alleged the court erred by preventing them from introducing evidence regarding the plaintiff's prior low back pain and treatment and her subsequent fracture in her low back on the basis that the defendants failed to introduce expert testimony establishing a causal connection between the injuries to the plaintiff's low back and the injuries to her coccyx, sacroiliac joint, and piriformis muscle. Noble , 2013 IL App (5th) 120248, ¶ 20, 371 Ill.Dec. 477, 990 N.E.2d 377. The defendants argued the excluded deposition testimony of two doctors, Dr. Anderson and Dr. Pereira, established the causal connection between the injuries and, therefore, the defendants were not required to present further expert testimony on the issue.

Noble , 2013 IL App (5th) 120248, ¶ 20, 371 Ill.Dec. 477, 990 N.E.2d 377.

¶ 42 Relying on Voykin , this court affirmed the exclusion of evidence regarding the plaintiff's prior low back pain and her subsequent fracture. As this court observed:

"In Voykin [citation], the Illinois Supreme Court concluded that when a defendant seeks to introduce evidence of a plaintiff's prior injuries or medical conditions at trial, the defendant must first introduce expert evidence demonstrating why the prior injury or medical condition is relevant to causation, damages, or some other issue of consequence. The defendant must present medical or other competent evidence to establish a causal connection between the evidence offered and the complained-of injuries." (Emphasis in original.) Noble , 2013 IL App (5th) 120248, ¶ 21, 371 Ill.Dec. 477, 990 N.E.2d 377.

¶ 43 This court found that Dr. Anderson's testimony regarding the plaintiff's low back pain preexisting the date of the accident did not establish a causal connection between the injuries to her coccyx, piriformis muscle, and sacroiliac joint and the plaintiff's complaints of low back pain and her subsequent fracture. Noble , 2013 IL App (5th) 120248, ¶ 25, 371 Ill.Dec. 477, 990 N.E.2d 377. As this court noted, the plaintiff only alleged injuries to her coccyx, piriformis muscle, and sacroiliac joint during the trial and never alleged she aggravated her previous low back pain as a result of the accident. Noble , 2013 IL App (5th) 120248, ¶ 25, 371 Ill.Dec. 477, 990 N.E.2d 377. This court further noted that Dr. Pereira testified there was no correlation between the finding that the plaintiff suffered a fracture after the accident and the plaintiff's complaints of pain to her coccyx, sacroiliac joint, and piriformis muscle, as the fracture was 8 to 10 inches from the area treated as a result of the motor vehicle accident. Noble , 2013 IL App (5th) 120248, ¶ 25, 371 Ill.Dec. 477, 990 N.E.2d 377. For these reasons, this court concluded it did not believe sufficient expert testimony was presented to establish a causal connection between the plaintiff's injuries to her low back and her subsequent fracture and the plaintiff's injuries to her coccyx, sacroiliac joint, and piriformis muscle. Noble , 2013 IL App (5th) 120248, ¶ 25, 371 Ill.Dec. 477, 990 N.E.2d 377.

¶ 44 In the instant case, Dr. Kennedy's testimony amounted to little more than speculation and conjecture, as defense counsel failed to provide any medical testimony or other competent evidence establishing a causal link between the phantom causes of injuries suggested and plaintiff's injuries incurred as a result of the dog incident. This type of speculative testimony is prohibited under Voykin . "Regardless of how skilled or experienced an expert may be, he is not permitted to speculate or to state a judgment based on conjecture, i.e. , a conclusion based on assumptions not in evidence or contradicted by the evidence." Royal Elm Nursing & Convalescent Center, Inc. v. Northern Illinois Gas Co. , 172 Ill. App. 3d 74, 79, 122 Ill.Dec. 117, 526 N.E.2d 376 (1988). Moreover, experts are prohibited to opine regarding the cause of an injury based on nonexistent facts. Yanello v. Park Family Dental , 2017 IL App (3d) 140926, ¶ 44, 413 Ill.Dec. 945, 79 N.E.3d 294. For the foregoing reasons, the trial court abused its discretion in admitting Dr. Kennedy's testimony regarding unsubstantiated hypothetical causes of plaintiff's injuries.

¶ 45 Defendant argues that, unlike Voykin and its progeny, which concerned cases where the defendants attempted to argue prior and subsequent accidents and/or conditions were a cause of the plaintiff's injuries and damages, no testimony was elicited in the instant case regarding any prior injuries and conditions or any subsequent accidents which may have caused plaintiff's injuries. Defendant contends that nothing in Voykin or its progeny prohibits the foundational and/or background testimony elicited from Dr. Kennedy during cross-examination regarding potential mechanisms of plaintiff's injuries. We disagree.

¶ 46 Although defendant did not introduce evidence that plaintiff's injury was related to a specific prior or subsequent accident, defendant did introduce evidence that suggested plaintiff's injury may have been the result of something other than the dog incident. We find this to be a distinction without a difference. As previously stated, defense counsel asked Dr. Kennedy if he agreed with the following statement: "Sometimes people's back will just go out for no reason," which is referred to as an "idiopathic cause." Dr. Kennedy replied, "Yes." Defense counsel further asked Dr. Kennedy if he agreed that the annular fissure plaintiff suffered as a result of the dog incident could have been caused by "many other factors." Dr. Kennedy replied, "Possible." Thus, defense counsel attempted to present a phantom cause of plaintiff's injury without any medical evidence to support such a claim. This type of unsupported speculation and conjecture is inadmissible under Voykin .

¶ 47 Defendant also cites Hahn v. Union Pacific R.R. Co. , 352 Ill. App. 3d 922, 287 Ill.Dec. 867, 816 N.E.2d 834 (2004), in support of his position, which held that an employee's neurosurgeon was permitted to testify as to what might or could have caused the employee's injury. Specifically, the Hahn court explained:

"To be probative on the issue of causation, a medical expert is not required to give an opinion regarding a specific cause. Rather, a medical expert is permitted to testify to what might or could have caused an injury, despite any objection that the testimony is inconclusive. Testimony from a physician regarding what might or could have caused an injury is merely a medical opinion given on facts assumed to be true. [Citations.] For evidence to be relevant, it need only tend to make the existence of any fact more probable or less probable than it would otherwise be." (Emphasis in original.) Hahn , 352 Ill. App. 3d at 930, 287 Ill.Dec. 867, 816 N.E.2d 834.

¶ 48 After careful review, we find Hahn distinguishable from the instant case. In Hahn , the court permitted the testimony of a neurosurgeon who opined there was a causal connection between the events described in the employee's history and the initiation of the employee's symptoms, despite an argument that the causation testimony was inconclusive. As the court noted, "an examination of a plaintiff and a review of his medical history provide a sufficient foundation from which a treating physician may offer opinions on the cause of his injury." Hahn , 352 Ill. App. 3d at 931, 287 Ill.Dec. 867, 816 N.E.2d 834. The court concluded the neurosurgeon's testimony was based upon his specialized knowledge and experience and not mere guess or speculation, and the testimony served to narrow the reasonable probabilities of causation in an area where limited medical knowledge does not permit an unequivocal opinion. Hahn , 352 Ill. App. 3d at 931, 287 Ill.Dec. 867, 816 N.E.2d 834.

¶ 49 In contrast, defense counsel in this case elicited testimony from Dr. Kennedy regarding potential events that never occurred. Defense counsel attempted to establish causation from events that Dr. Kennedy explicitly stated were never established in plaintiff's medical records. We reiterate that for an alternative event to be relevant to causation, it must make it less likely that the defendant's actions caused any of the plaintiff's injuries or an identifiable portion thereof. Voykin , 192 Ill. 2d at 58, 248 Ill.Dec. 277, 733 N.E.2d 1275. Here, the phantom causes of injury suggested by defense counsel do not make it less likely that defendant's dog caused plaintiff's injuries, as these phantom causes never occurred. Accordingly, we reject defendant's argument.

¶ 50 CONCLUSION

¶ 51 In sum, we conclude the trial court erred in admitting unsupported evidence on cross-examination regarding potential alternative causes of plaintiff's injuries. Voykin prohibits this type of speculative testimony. Given our disposition, we need not address plaintiff's remaining contention alleging the jury's award of damages was against the manifest weight of the evidence. In light of the trial court's directed verdict in favor of plaintiff, as well as the Voykin violations noted above, we reverse the judgment of the circuit court of Madison County and remand this cause for a new trial on damages only.

¶ 52 Reversed and remanded.

Presiding Justice Barberis and Justice Chapman concurred in the judgment and opinion.


text:
    Edward F. PALIATKA, Plaintiff-Appellant, v. John BUSH, Joanna Bush, and Credit Union I, Defendants-Appellees.
    No. 1-17-2435
    Appellate Court of Illinois, First District, Third Division.
    July 18, 2018
    Richard C. Jones Jr. and Carolyn D. Strahammer, of Richard Jones & Associates, Ltd., of Mt. Prospect, for appellant.
    James J. Babowice and Peter M. Trobe, of Trobe, Babowice & Associates, LLC, of Waukegan, for appellees.
   PRESIDING JUSTICE COBBS delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Edward F. Paliatka, appeals from the order dismissing his first amended complaint with prejudice pursuant to section 2-615 of the Code of Civil Procedure ( 735 ILCS 5/2-615 (West 2016) ). The trial court found that dismissal with prejudice was warranted because Paliatka was unable to state a cause of action for an equitable mortgage. This finding was based on Paliatka's representation that there was no written agreement subrogating him to the original mortgage on the property at issue. Paliatka contends that the trial court misapplied the law regarding the elements of an equitable mortgage and an equitable subrogation. We affirm.

¶ 2 I. BACKGROUND

¶ 3 The following facts are obtained from the pleadings in the record. The property at issue is located at 4021 West 99th Street in Oak Lawn, Illinois (the property), and is currently owned by John and Joanna Bush. The Bushes entered into a real estate contract to purchase the property from Miarstar Properties, LLC (Miarstar), in April 2016, with a closing date of June 9, 2016. They funded the purchase using a Credit Union I loan with the property pledged as security. The Credit Union I mortgage agreement and the warranty deed granted by Miarstar were both executed on June 9, 2016, and recorded in Cook County on July 20, 2016.

¶ 4 Paliatka first filed a complaint against Miarstar; Skyline 1, Inc.; S12, LLC; and any unknown owners and nonrecord claimants on June 16, 2016, asserting a lien against the property and seeking foreclosure. Skyline 1, Inc., and S12, LLC, are companies solely owned and operated by Paliatka's grandson, Lyle Anastos. Anastos did not file an appearance in the proceedings below. At the time Paliatka filed his complaint, Miarstar was the recorded owner of the property. Paliatka also filed a lis pendens against the property in conjunction with his complaint. Paliatka was later granted leave of the court to add John Bush, Joanna Bush, and Credit Union I as defendants. On April 20, 2017, Paliatka voluntarily dismissed Miarstar as a defendant, with prejudice. The trial court dismissed the complaint against the Bushes and Credit Union I under section 2-615.

¶ 5 With leave of the trial court, Paliatka filed an amended complaint on May 18, 2017. The amended complaint named Skyline 1, Inc.; S12, LLC; the Bushes; and Credit Union I as defendants and sought a judgment declaring the existence of Paliatka's "equitable lien and mortgage" on the property and to initiate foreclosure proceedings. According to Paliatka's amended complaint, Anastos owned the property, operating under the business S12, LLC, until he sold it on July 1, 2014. Prior to the sale of the property, Anastos executed a mortgage, security agreement, and financing statement for $290,000 in favor of Renovo Financial Loan Fund, LLC (Renovo), pledging the property and a second property as security for the loan. This mortgage was recorded in Cook County on August 24, 2013. The following year, Renovo assigned its interest in both properties to RFLF 2, LLC. This assignment was recorded on March 31, 2014. On July 1, 2014 a quitclaim deed conveying the property to Miarstar was recorded in Cook County. The deed stated that Miarstar paid Anastos's company $75,000 for the property.

¶ 6 The amended complaint further alleged that Paliatka paid $342,354.67 to RFLF 2, LLC, on October 29, 2015, to satisfy the outstanding balance on the mortgage loan. Paliatka claimed that through this payment he acquired all the rights, liens, and interest of RFLF 2, LLC, and Renovo in relation to the property and mortgage agreement. Paliatka alleged that S12, LLC, defaulted on the mortgage because it had missed more than eight months of payments and it violated the terms of the mortgage by conveying the property to Miarstar. Thus, Paliatka brought this suit to foreclose on the property and satisfy the defaulted mortgage.

¶ 7 On September 11, 2017, the trial court granted the Bushes and Credit Union I's jointly filed motion to dismiss under section 2-615, with prejudice. The trial court's order explicitly stated it found Paliatka could not state a cause of action for an equitable mortgage based on the representation by his counsel, in open court, that no written agreement existed showing that Paliatka was subrogated to Renovo's or RFLF 2, LLC's mortgage interest.

¶ 8 Although not attached to the amended complaint, Paliatka entered an additional exhibit during the proceedings showing that Renovo executed a release deed referencing the mortgaged property and the assignment to RFLF 2, LLC. The release deed was dated November 10, 2015, and recorded in Cook County on December 18, 2015.

¶ 9 II. ANALYSIS

¶ 10 Paliatka assigns error to the trial court's dismissal of his first amended complaint for failure to state a cause of action. Paliatka contends that he sufficiently pleaded a claim for an equitable mortgage because he pleaded facts showing an equitable subrogation. Further, even if he had failed to plead sufficient facts, Paliatka argues that dismissal with prejudice was erroneous because he could cure the deficient complaint with further amendments.

¶ 11 The question on appeal is whether Paliatka pleaded sufficient facts to state a claim upon which relief can be granted. A motion to dismiss pursuant to section 2-615 challenges the legal sufficiency of a complaint. Wilson v. County of Cook , 2012 IL 112026, ¶ 14, 360 Ill.Dec. 148, 968 N.E.2d 641. Illinois is a fact-pleading jurisdiction and plaintiffs are required to allege "a legally recognized cause of action and *** must plead facts which bring the particular case within that cause of action." (Internal quotation marks omitted.) Chandler v. Illinois Central R.R. Co. , 207 Ill. 2d 331, 348, 278 Ill.Dec. 340, 798 N.E.2d 724 (2003). When reviewing a section 2-615 motion, a court must determine "whether the allegations in the complaint, considered in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted."

Sheffler v. Commonwealth Edison Co. , 2011 IL 110166, ¶ 61, 353 Ill.Dec. 299, 955 N.E.2d 1110. A court should only dismiss a complaint under section 2-615 where no set of facts would entitle the plaintiff to recovery. Marshall v. Burger King Corp. , 222 Ill. 2d 422, 429, 305 Ill.Dec. 897, 856 N.E.2d 1048 (2006). We review a section 2-615 dismissal de novo . Wilson , 2012 IL 112026, ¶ 14, 360 Ill.Dec. 148, 968 N.E.2d 641.

¶ 12 The trial court dismissed the complaint explicitly for failing to state a claim of equitable mortgage. However, we recognize that pleadings must be construed liberally with the aim of doing substantial justice. Hargrove v. Gerill Corp. , 124 Ill. App. 3d 924, 931, 80 Ill.Dec. 243, 464 N.E.2d 1226 (1984). The reviewing court should interpret the assertions of the complaint in the light most favorable to the plaintiff by accepting as true all well-pleaded facts and the reasonable inferences that can be drawn from them. Marshall , 222 Ill. 2d at 429, 305 Ill.Dec. 897, 856 N.E.2d 1048 ; see also Aurelius v. State Farm Fire & Casualty Co. , 384 Ill. App. 3d 969, 973, 323 Ill.Dec. 739, 894 N.E.2d 765 (2008) (noting that this rule applies to motions to dismiss brought under both sections 2-615 and 2-619 ).

¶ 13 Paliatka's complaint sought declaratory judgment of his "equitable lien and mortgage." The phrases equitable lien and equitable mortgage refer to two separate concepts in law. The terms appear to be interchangeable, but an equitable mortgage is a narrower concept than an equitable lien. See Hargrove , 124 Ill. App. 3d at 931, 80 Ill.Dec. 243, 464 N.E.2d 1226. The parties' briefs use both terms and raise issues addressing points of law tied to both concepts. Therefore, we will review Paliatka's complaint as asserting separate claims for an equitable mortgage and an equitable lien.

¶ 14 A. Subrogation

¶ 15 Prior to reaching Paliatka's claims for an equitable mortgage and an equitable lien, we must address Paliatka's claim that he was equitably subrogated to Renovo's mortgage against the property after he paid the outstanding loan balance on behalf of Anastos. In his prayer for relief, he asks this court to acknowledge that the law operated to subrogate him to Renovo's rights, that the subrogation entitles him to a lien and mortgage interest against the property, that his interest has priority over the Bushes and Credit Union I's interests, and to foreclose on the property in order to satisfy the lien. We disagree with Paliatka's claim that by operation of equitable subrogation he is entitled to an equitable mortgage. As we discuss below, Paliatka's argument, which conflates the two concepts, is flawed. Even if we were to find that Paliatka was equitably subrogated to Renovo or RFLF 2, LLC's interest, he would still be unable to plead a claim for an equitable mortgage.

¶ 16 Subrogation is a principle of equity jurisprudence where one who involuntarily pays the debt of another succeeds to the rights of the original creditor, with respect to the debt paid. Dix Mutual Insurance Co. v. LaFramboise , 149 Ill. 2d 314, 319, 173 Ill.Dec. 648, 597 N.E.2d 622 (1992) ; Home Savings Bank v. Bierstadt , 168 Ill. 618, 623, 48 N.E. 161 (1897). In Illinois, subrogation is often applied to substitute one party to the lien priority of another. See Bierstadt , 168 Ill. 618, 48 N.E. 161 ; Detroit Steel Products Co. v. Hudes , 17 Ill. App. 2d 514, 151 N.E.2d 136 (1958) ; Kankakee Federal Savings & Loan Ass'n v. Arnove , 318 Ill. App. 261, 47 N.E.2d 874 (1943). A lien is a hold or claim that one party has on the property of another for a debt.

Aames Capital Corp. v. Interstate Bank of Oak Forest , 315 Ill. App. 3d 700, 703, 248 Ill.Dec. 565, 734 N.E.2d 493 (2000). Generally, the lien that is recorded first in time has priority and is entitled to satisfaction by the property it binds before other claims. Union Planters Bank, N.A. v. FT Mortgage Cos. , 341 Ill. App. 3d 921, 924-25, 276 Ill.Dec. 465, 794 N.E.2d 360 (2003). Subrogation allows for an exception from the first-in-time priority rule. Id. at 925, 276 Ill.Dec. 465, 794 N.E.2d 360.

¶ 17 We recognize two types of subrogation: contractual (conventional) and common law (equitable). Schultz v. Gotlund , 138 Ill. 2d 171, 173, 149 Ill.Dec. 282, 561 N.E.2d 652 (1990). Conventional subrogation arises where there is an express agreement between the parties to the effect that the party paying the debts on behalf of the third party will be able to assert the rights of the original creditor. See Bierstadt , 168 Ill. at 624, 48 N.E. 161. In the context of lien priorities, conventional subrogation is commonly seen in modern refinancing transactions. See Aames , 315 Ill. App. 3d at 706, 248 Ill.Dec. 565, 734 N.E.2d 493. A new lender seeking to be subrogated in lien priority when refinancing must demonstrate (1) there is an express agreement providing that the new lender will be able to assert the rights of the original creditor, (2) the previous debt was in fact paid off by the new lender, (3) no harm will come to an innocent party if priority is granted to the lender, and (4) there was no gross negligence. Union Planters Bank, N.A , 341 Ill. App. 3d at 925, 276 Ill.Dec. 465, 794 N.E.2d 360. Additionally, the new lender must record its mortgage, the original mortgage must be in full force and effect at the time of recording, and the lien priority is limited to the original amount perfected by the previous creditor. Aames , 315 Ill. App. 3d at 710, 248 Ill.Dec. 565, 734 N.E.2d 493. These requirements are consistent with our supreme court's decision in Bierstadt , 168 Ill. at 625, 48 N.E. 161 (emphasizing that subrogation should not cause injury to an innocent party).

¶ 18 In contrast to the formalities of conventional subrogation, equitable subrogation typically arises simply as a result of payment on behalf of another. Subrogation is then applied to hold the one, who in good conscience should be accountable, responsible for the debt. LaFramboise , 149 Ill. 2d at 319, 173 Ill.Dec. 648, 597 N.E.2d 622 ; Bierstadt , 168 Ill. at 624, 48 N.E. 161. There is no general rule to determine whether a right of equitable subrogation exists because the right depends upon balancing the equities of each particular case. LaFramboise , 149 Ill. 2d at 319, 173 Ill.Dec. 648, 597 N.E.2d 622. Nonetheless, it requires showing that one has involuntarily paid a debt of another and is seeking to assert the rights of the original creditor against the one whose debt was absolved by the payment. See id. Subrogation of this kind will only be recognized where an equitable result will be reached. Detroit Steel Products Co. , 17 Ill. App. 2d at 520, 151 N.E.2d 136.

¶ 19 Paliatka clearly does not meet the requirements for contractual subrogation. There is no evidence of an express agreement. He did not record his lien, and even if his lis pendens notice was considered, a release deed for the original mortgage had been recorded the previous year. Paliatka asks this court to apply equitable subrogation of the mortgage interest to enforce his alleged lien against the property. In order to recognize an equitable subrogation, we would be required to balance the particular equities of the case. However, the issue before us is not whether Paliatka has proven he should be equitably subrogated. Our review is limited to whether Paliatka pleaded sufficient facts to state a cause of action for an equitable mortgage or an equitable lien. Although the concept of subrogation is tied to Paliatka's remaining arguments, a finding of equitable subrogation would not suffice to demonstrate all the elements for an equitable mortgage or an equitable lien. Therefore, we will not engage in a balancing of the equities and instead turn our attention to the elements of equitable mortgages and equitable liens.

¶ 20 B. Equitable Mortgage

¶ 21 Mortgage is defined by the Illinois Mortgage Foreclosure Law as a type of lien, specific to real property, created by a consensual written instrument that grants or retains an interest in real estate to secure a debt or other obligation. 735 ILCS 5/15-1207 (West 2016). Equitable mortgages are a subtype of mortgages and are also created by a consensual written instrument. Id. § 15-1207(d). By Paliatka's admission, there was no written instrument. Accordingly, we find the trial court correctly ruled that Paliatka could not state a cause of action for an equitable mortgage.

¶ 22 Paliatka argues that, notwithstanding the absence of a written instrument, he holds an equitable mortgage against the property. In support, he relies on Trustees of Zion Methodist Church v. Smith , 335 Ill. App. 233, 81 N.E.2d 649 (1948), and Hatchett v. W2X, Inc. , 2013 IL App (1st) 121758, 373 Ill.Dec. 385, 993 N.E.2d 944. His reliance is clearly misplaced as neither case stands for the proposition that an equitable mortgage can be enforced without a written instrument.

¶ 23 In Trustees of Zion , the parties offered into evidence a written note that was originally titled "chattel mortgage" and was altered to read "real estate mortgage." 335 Ill. App. at 235, 81 N.E.2d 649. The court found that the parties clearly intended to pledge the real property referenced as security for the debt. Id. at 238, 81 N.E.2d 649. Thus, the form of the agreement was not material because the parties' intent overcame the nonconforming instrument. Id. at 236-37, 81 N.E.2d 649. The doctrine of equitable mortgage allowed the court to relax the law's technical requirements in creating an enforceable mortgage. Id. We do not read Trustees of Zion as standing for the proposition that an equitable mortgage may be found in the absence of a written instrument.

¶ 24 In Hatchett , the court examined whether an executed warranty deed was an outright sale or an equitable mortgage. 2013 IL App (1st) 121758, 373 Ill.Dec. 385, 993 N.E.2d 944. In its examination, the court set forth the following factors as indicia of an equitable mortgage: the existence of a debt relationship, the close relationship of the parties, prior unsuccessful attempts for a loan, the lack of legal assistance, the inadequacy of consideration, an agreement to repurchase, and the continued exercise of ownership privileges and responsibilities by the seller. Id. ¶ 39. The court stated that in order to overcome the written instrument conveying the property, proof of the intent to create an equitable mortgage must be clear, satisfactory, and convincing. Id. In the course of evaluating these factors, the court further noted that any type of evidence, including circumstantial, may be offered as proof of the debt relationship. Id. ¶ 45. In Hatchett , the court's reliance on circumstantial evidence only demonstrated that circumstantial evidence is sufficient to overcome a written instrument. It did not eliminate the need for a written instrument to prove an equitable mortgage.

¶ 25 Paliatka's argument has no support in case law. Based on Paliatka's own representation that there was not a written instrument, no circumstance exists where he could plead a cause of action for an equitable mortgage. Therefore, we find the trial court properly dismissed Paliatka's complaint with prejudice.

¶ 26 C. Equitable Lien

¶ 27 Paliatka contends that the court should impose an equitable lien because the Bushes received the benefit of property unencumbered by the Renovo mortgage. It is this perceived benefit that forms the basis for his equitable lien claim and his related assertion that the Bushes have an obligation to pay for receiving this benefit. The Bushes respond that Paliatka has not alleged the elements of an equitable lien and therefore his complaint was properly dismissed.

¶ 28 The imposition of an equitable lien is a remedy for a debt that cannot be legally enforced but which should be recognized under considerations of right and fairness. Hargrove , 124 Ill. App. 3d at 930, 80 Ill.Dec. 243, 464 N.E.2d 1226 (citing Watson v. Hobson , 401 Ill. 191, 201, 81 N.E.2d 885 (1948) ). The essential elements of an equitable lien are (1) a debt, duty, or obligation defendant owed to plaintiff and (2) the existence of a res that, in some way, is particularly related to the debt or obligation. CitiMortgage, Inc. v. Parille , 2016 IL App (2d) 150286, ¶ 33, 401 Ill.Dec. 167, 49 N.E.3d 869. Contrary to the requirements for an equitable mortgage, an equitable lien may be found either (1) where the parties expressed in writing their intention to make real property, personal property, or some fund the security for a debt but did not use express lien language or (2) where considerations of fairness and justice would require imposing a lien even without an express agreement between the parties. Paine/Wetzel Associates, Inc. v. Gitles , 174 Ill. App. 3d 389, 393, 123 Ill.Dec. 813, 528 N.E.2d 358 (1988).

¶ 29 As previously discussed, Paliatka has no express agreement regarding his claim against the property. We therefore focus our analysis on considerations of fairness and justice. For that purpose, Parille , 2016 IL App (2d) 150286, 401 Ill.Dec. 167, 49 N.E.3d 869, is instructive. In Parille , the plaintiff, CitiMortgage, was assigned the interest on a couple's refinanced mortgage and note by the original creditor after the couple defaulted on repayment. Id. ¶ 9. Due to a technicality in the signatures on the refinancing documents, the plaintiff could not enforce its rights as a creditor and foreclose on the property to satisfy the defaulted mortgage. Id. ¶¶ 10-15. Thus, the plaintiff asked the court to impose an equitable lien on the property to compensate it for the defective mortgage. Id. ¶ 33.

¶ 30 First, the court recognized that, most typically, an equitable lien arises where a landowner has a duty, debt, or obligation to a tenant or builder for physical improvements made to the land. Id. ¶¶ 33, 36. Where the landowner has received a benefit from those improvements, an equitable lien should be awarded in the amount of the value of the improvements to the property. Id. (citing W.E. Erickson Construction, Inc. v. Congress-Kenilworth Corp. , 132 Ill. App. 3d 260, 87 Ill.Dec. 536, 477 N.E.2d 513 (1985) ). The court held that repayment of earlier mortgages made during the refinancing process was not comparable to the debt, duty, or obligation that is recognized for physical improvements made to a property. Id. ¶¶ 35-36. Here, Paliatka has not alleged any physical improvements to the property. Therefore, he would not be able to state a claim for an equitable lien on this basis.

¶ 31 Paliatka alleges that the Bushes have received a benefit, where they own the property with no liability for the Renovo mortgage. He therefore takes the position that the Bushes owe him a duty to pay for the benefit that he conferred on the property. The Parille court found persuasive Shchekina v. Washington Mutual Bank , No. 08 C 6094, 2012 WL 3245957 (N.D. Ill. Aug. 7, 2012), a case in which the federal district court recognized that another type of equitable lien may arise, specifically, in a case where a creditor's refinanced mortgage documents are later challenged by the homeowner. Parille , 2016 IL App (2d) 150286, ¶ 37, 401 Ill.Dec. 167, 49 N.E.3d 869. Although not bound, we, like the court in Parille , find Shchekina helpful for a complete analysis of Paliatka's claims.

¶ 32 In Shchekina , the homeowner alleged that her signature had been forged on the refinancing documents and sought to quiet title in her property without repayment of the mortgage loan. 2012 WL 3245957. The creditor sought a finding that the homeowner owed it a debt because the creditor had advanced funds to pay off the previous mortgage loans. Id. at *6. The court recognized the debt based upon the creditor's equitable subrogation of the last valid mortgage. Id. The court found that the homeowner received a benefit when her liability on the previous mortgages was extinguished by the creditor's refinancing. Id. at *4. Finding that the homeowner owed a debt to the creditor in the amount of the last valid mortgage, the court imposed an equitable lien against the related property. Id. at *6.

¶ 33 Although the facts here appear similar to those in Shchekina , the cases are clearly distinguishable. Unlike in Shchekina , Paliatka is not a creditor who helped the Bushes refinance their mortgage and was left with an invalid security interest. There, the same homeowner executed the original valid mortgage and continued to enjoy the benefit of the property without being held liable on the refinanced mortgage. Id. at *4. Thus, it was fair to impose a debt on the homeowner. In contrast, the Bushes had nothing to do with the execution of the Renovo mortgage by Anastos. Although the Bushes presently enjoy whatever benefit ownership of the property entails, Anastos was the one who truly benefitted from Paliatka's actions. Anastos was relieved of his liability for the mortgage debt by Paliatka's payment. He also enjoyed the benefit of transferring the property to Miarstar and receiving $75,000 in compensation. The Bushes received no special benefit when they entered into a standard real estate contract and mortgage agreement with Miarstar and Credit Union I, respectively. Thus, we do not agree with Paliatka's assertion that the Bushes owe any debt, duty, or obligation to him. Accordingly, we find that Paliatka cannot state a cause of action for an equitable lien.

¶ 34 III. CONCLUSION

¶ 35 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 36 Affirmed.

Justices Howse and Lavin concurred with the judgment and opinion.

      We take as fact the amount listed in the attached exhibit ($290,000) rather than the amount listed in Paliatka's complaint ($310,000) for the principal mortgage amount. Gagnon v. Schickel , 2012 IL App (1st) 120645, ¶ 18, 368 Ill.Dec. 240, 983 N.E.2d 1044 (Where an exhibit contradicts the allegations in a complaint, the exhibit controls.).

      Paliatika's complaint indicates the recording date was July 24, 2013, whereas the attached exhibit is stamped "8/24/2013". See id.

      The Bushes and Credit Union I also raise an argument that Paliatka cannot show he involuntarily paid Anastos debt and therefore cannot prove subrogation. We do not need to reach this argument to resolve the issues on appeal.

      As previously discussed, supra ¶ 17, conventional subrogation is commonly seen in modern refinancing transactions. However, due to the alleged forgery, the creditor in Shchekina could not satisfy the technical requirements of conventional subrogation and instead sought to be equitably subrogated to the earlier mortgage.