author: JUSTICE STAMOS PRESIDING JUSTICE DOWNING,

text:
    HOUSING AUTHORITY OF THE COUNTY OF COOK, Plaintiff-Appellee, v. MARGARITA R. TONSUL, Defendant-Appellant.
    First District (2nd Division)
    No. 82—2027
    Opinion filed June 14, 1983.
    DOWNING, P.J., dissenting.
    Cook County Legal Assistance Foundation, Inc., of Chicago (Marilyn S. Rzasa, of counsel), for appellant.
    Keck, Mahin & Cate, of Chicago (James T. Otis, James J. Casey, and A. Benjamin Goldgar, of counsel), for appellee.
   JUSTICE STAMOS

delivered the opinion of the court:

Defendant Margarita Tonsul appeals from the judgment entered by the trial court in favor of plaintiff Cook County Housing Authority (CCHA) in this forcible entry and detainer action, contending that the judgment is void because CCHA’s complaint was prepared, signed, and filed by a nonattorney agent.

The complaint which commenced this action was filed on May 17, 1982. The complaint was signed by James A. Floyd in the space reserved for the attorney’s signature. Floyd was not licensed to practice law in Illinois at that time. Next to the signature the word “attorney” was scratched out and the word “agent” put in its place, so that the signature line read “James A. Floyd, agent for plaintiff.” A hearing was held on July 28, 1982, at which plaintiff’s attorney requested and was allowed leave to file his appearance. Defendant filed a special appearance and moved to quash the service of summons on the grounds that plaintiff, as a municipal corporation, is not empowered to initiate litigation on its own behalf except through a licensed attorney, and that the signing of the complaint by a nonattorney rendered all subsequent proceedings in the case a nullity. The trial court denied the motion, and defendant elected not to contest the merits of the case. Judgment was entered for the plaintiff, with execution stayed under a use and occupancy bond during the pendency of this appeal.

It is well settled that section 11 of the attorneys and counselors act (Ill. Rev. Stat. 1981, ch. 13, par. 11), which allows parties litigant to prosecute and defend their actions “in their proper persons,” in no way authorizes a corporation to appear in any proceeding in any court through an agent who is not a licensed attorney. (See Aarrow Ambulance v. Davis (1974), 16 Ill. App. 3d 318, 319, 306 N.E.2d 363; Leonard v. Walsh (1966), 73 Ill. App. 2d 45, 47, 220 N.E.2d 57; see, e.g., Remole Soil Service, Inc. v. Benson (1966), 68 Ill. App. 2d 234, 238-39, 215 N.E.2d 678.) Where a cause is prosecuted by a layman acting on behalf of a corporation, any proceedings in the case are a nullity and any judgment rendered therein is void. (See Aarrow Ambulance; Remole.) This strict rule operates to void the judgment even where the lay agent merely files the complaint over his own signature, and all subsequent court appearances are made by a duly licensed attorney. See Marken Real Estate & Management Corp. v. Adams (1977), 56 Ill. App. 3d 426, 428, 371 N.E.2d 1192.

Plaintiff advances several arguments as to why the judgment in the instant case is not rendered void by the fact the complaint was signed by a layman. The first is that Floyd, by filling out and signing the simple, two-paragraph form complaint for forcible entry and detainer was performing a simple ministerial task which required no legal knowledge or skill and which can not be considered to be practicing law. Our supreme court has defined the practice of law as “ ‘ “the giving of advice or rendition of any sort of service *** when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill.” ’ ” (People ex rel. Chicago Bar Association v. Barasch (1950), 406 Ill. 253, 256, 94 N.E.2d 148.) The court has expressly stated that that definition “embraces the preparation of pleadings and other papers incident to actions and special proceedings.” (People ex rel. Courtney v. Association of Real Estate Taxpayers (1933), 354 Ill. 102, 110, 187 N.E. 823.) In Marken Real Estate & Management Corp. v. Adams (1977), 56 Ill. App. 3d 426, 371 N.E.2d 1192, a layman agent of the plaintiff corporation filed a complaint for distress for rent, a distress warrant, and an inventory "with his name entered in the space for the attorney’s name. The court expressly did not decide whether the filing of the inventory and warrant constituted the unauthorized practice of law. The court held that the signing of the complaint by the nonattorney agent constituted the unauthorized practice of law and rendered the judgment entered in the plaintiff’s favor void. 56 Ill. App. 3d 426, 429.

Plaintiff relies on Chicago Bar Association v. Quinlan & Tyson, Inc. (1966), 34 Ill. 2d 116, 214 N.E.2d 771, for the proposition that the simplicity of the complaint involved in this case takes the preparation of the complaint out of the realm of the practice of law. In that case, our supreme court held that a real estate broker is not engaged in the practice of law when he fills in the blanks on a standard form earnest money contract or offer to purchase form with information provided by the parties to the transaction, because the preparation of such a preliminary form is incidental to the broker’s function and operates as his entitlement to his commission. (34 Ill. 2d 116, 121.) That holding, however, represents only a narrow exception to the broad rule enunciated in that case that real estate brokers are engaged in the unauthorized practice of law when they fill in the blanks on deeds, mortgages, and other legal instruments. (34 Ill. 2d 116, 122.) As to the defendant’s argument that such instruments are so standardized that only ordinary business knowledge is required to complete them, the court stated:

“Many aspects of law practice are conducted through the use of forms, and not all of the matters handled require extensive investigation of the law. But by his training the lawyer is equipped to recognize when this is and when it is not the case. Neither counsel nor amici have suggested any practicable way in which an exception to the general rule can be made where only the use of forms is involved, or where the transaction is a ‘simple’ one. Mere simplicity cannot be the basis for drawing boundaries to the practice of a profession.” 34 Ill. 2d 116, 123.

Likewise, we reject plaintiff’s argument that the simplicity of the forcible entry and detainer complaint exempts Floyd’s actions from the prohibition against the unauthorized practice of law.

The briefs of the parties contain extensive references and arguments concerning the application of the Practice of Law by Corporations Act (Ill. Rev. Stat. 1981, ch. 32, par. 411 et seq.) to this case. The cases cited above, however, construed the provisions of the attorneys and counselors act (Ill. Rev. Stat. 1981, ch. 13, par. 1 et seq.), and the holdings in those cases are dispositive of the issues in this case. The court in Remole Soil Service, Inc. v. Benson (1966), 68 Ill. App. 2d 234, 215 N.E.2d 678, noted that section 1 of the Practice of Law by Corporations Act (Ill. Rev. Stat. 1981, ch. 32, par. 411), which forbids the practice of law by corporations, and section 5 of the act (Ill. Rev. Stat. 1981, ch. 32, par. 415), which authorizes corporations to employ attorneys to conduct litigation and other matters incidental •to the corporation’s business, evidences a strong legislative intent that corporations may not practice law except through a licensed attorney. (68 Ill. App. 2d 234, 238.) Plaintiff argues that the Practice of Law by Corporations Act should not be applied to municipal corporations, because although such corporations are not specifically exempted from the provisions of the Act (see Ill. Rev. Stat. 1981, ch. 32, par. 415), the distinctions between municipal corporations and business corporations are so great that a statutory provision which specifically applies to business corporations should not be construed to apply to municipal corporations absent a clear legislative intent.

Without addressing the question of whether the Practice of Law by Corporations Act applies to municipal corporations, we note that municipal corporations, like business corporations, can not be said to have the ability to appear in court “in their proper persons” as provided in section 11 of the attorneys and counselors act, and thus they can not be exempted from the provision of section 1 of that act that no person shall practice law in this State unless he is a duly licensed attorney. The issue in this case is not whether a municipal corporation may hold itself out as being entitled to practice law or whether it may practice law on its own behalf; the issue is whether such an entity may conduct legal proceedings through a layman agent. In this regard, the court in Remole Soil Service, Inc. v. Benson (1966), 68 Ill. App. 2d 234, 215 N.E.2d 678, remarked that “[i]t is more than a play on words to say that soulless corporations function only through living souls.” (68 Ill. App. 2d 234, 238.) Municipal corporations, like their business counterparts, are soulless and inanimate, and when an agent undertakes to practice law on behalf of such a principal, he must be licensed to do so.

For the reasons expressed herein, the judgment of the circuit court is reversed.

PERLIN, J., concurs.

PRESIDING JUSTICE DOWNING,

dissenting:

As stated by the majority, “the issue is whether such an entity may conduct legal proceedings through a layman agent.” I differ with the majority in the interpretation of “conduct legal proceedings.” To reverse this case- solely because the forcible detainer complaint was prepared, signed and filed by a nonattorney agent is an example where, in the administration of justice, we can be imprisoned in a straight jacket of archaic formalism. Defendant does not challenge the finding of the trial court. In fact, rather than meet the substantive charges head-on, defendant adopted a formalistic objection which the court approves.

Now the case must go back to square one and an attorney must sign the complaint. How is the administration of justice helped, in a case of this type, by the continued adherence to this antediluvian principle? What prejudice or damage is there to defendant by the fact that James A. Floyd signed the complaint on behalf of his employer as “Agent for plaintiff?” What prejudice or damage is there to defendant by the fact that the “Notice of Termination of Tenancy” attached to the complaint was signed for plaintiff “By James A. Floyd, Director of Management?”

The majority relies upon section 11 of the attorneys and counselors act (Ill. Rev. Stat. 1981, ch. 13, par. 11), the Practice of Law by Corporations Act (Ill. Rev. Stat. 1981, ch. 32, par. 411 et seq.), and numerous appellate court cases. The supreme court has not addressed this precise question. The appellate court apparently first addressed itself to this question in 1966 in Remole Soil Service, Inc. v. Benson (1966), 68 Ill. App. 2d 234, 215 N.E.2d 678.

Plaintiff correctly relies on Chicago Bar Association v. Quinlan & Tyson, Inc. (1966), 34 Ill. 2d 116, 214 N.E.2d 771. As I read that case, the supreme court held that what was done by a real estate broker (completing blanks on a printed real estate contract) did not amount to the practice of law. Here, all agent Floyd did, on behalf of his employer, was fill in a printed form issued by the circuit court of Cook County (CCMD-21A) with the words hereafter underlined (the balance of the words are preprinted):

Floyd never identified himself as an attorney. Floyd never appeared in court as an attorney. There is no claim that anyone other than an attorney ever appeared for plaintiff in court. Under these circumstances, I think the supreme court’s position in Quinlan & Tyson should prevail. I do not think that Floyd’s act constituted the practice of law, and if it did, certainly not the type of practice intended to be covered under either of the pertinent statutes. It is difficult to understand how the filling in of the blank spaces and words as underlined in the aforesaid illustration requires the skill peculiar to one trained and experienced in the law. Floyd, as plaintiff’s agent, initiated legal proceedings, but did not conduct them.

Defendant does not point out how she was harmed by virtue of agent Floyd signing the complaint rather than an attorney. In fact, the “Notice of Termination of Tenancy” which was attached to the complaint was signed on behalf of plaintiff by Floyd as “Director of Management.” Upon receipt of that notice, defendant requested a hearing, and the hearing officer ruled that the termination of defendant’s lease was justified.

II

Although not discussed in either the majority opinion or the parties’ briefs, it might be noted that the issue here involves the operation of the court system and the interpretation of papers filed in the court. This brings into consideration the court’s supervisory and administrative responsibility. The practice of law involves much more than the instant issue. When there is a question which involves the papers to be filed in a court proceeding, should not the determination of that question be left to judicial rules or discretion rather than to statutory mandate? (See People v. Jackson (1977), 69 Ill. 2d 252, 371 N.E.2d 602.) In the absence of a judicial rule (no supreme court rule covers this question), then I suggest judicial discretion should apply. In effect, the trial court’s determination was the exercise of judicial discretion based on the record in this case and should be affirmed.

III

As to whether the Practice of Law by Corporations Act applied to municipal corporations, it might be pertinent to note that said act is codified in chapter 32 of the Illinois Revised Statutes. Chapter 32 does not deal with municipal corporations, whereas chapter 24 (Ill. Rev. Stat. 1981, ch. 24) includes definitions of “municipal” (par. 1— 1 — 2(1)) and “corporate authorities” (par. 1 — 1—2(2)), and provides for the incorporation of areas into municipalities. Plaintiff is a municipal corporation (Ill. Rev. Stat. 1981, ch. 67V2, par. 8). No one has pointed out any legislative intent to apply the Practice of Law by Corporations Act to municipal corporations. In City of Webster Groves v. Smith (1937), 340 Mo. 798, 800-01, 102 S.W.2d 618, 619, the Supreme Court of Missouri distinguished between a “corporation” and a “municipal corporation,” holding that each term has a distinct and commonly accepted meaning. I suggest the same is true in Illinois.

The record in this case does not demonstrate any harm to defendant, or how she was prejudiced by the complaint tiled in this case. I would affirm.


source: Caselaw Access Project

author: JUSTICE NASH

license: Public Domain

text:
    A. S. SCHULMAN ELECTRIC COMPANY, Plaintiff-Appellant, v. VILLAGE OF FOX LAKE, Defendant-Appellee.
    Second District
    No. 82—646
    Opinion filed June 22, 1983.

      Edmund P. Boland and Edward M. White, both of Carey, Filter, White & Boland, of Chicago, for appellant.
    Julius Abler, of Libertyville, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiff, A. S. Schulman Electric Company (Schulman), appeals from a summary judgment entered by the circuit court of Lake County in favor of the defendant, Village of Fox Lake, and an order striking Schulman’s post-trial motion.

The record reflects that Schulman filed a complaint in the circuit court seeking to recover sums alleged to be due and owing it by the village under the terms of a contract entered into by the parties for the construction of street lighting improvements. The complaint alleged that the parties entered into the contract on April 17, 1978, and under its terms Schulman, in consideration of the sum of $149,295.40, agreed to install 49 lights, two controllers and related wiring and construction pursuant to plans and specifications prepared by the village engineer. The specifications required that the conduit which carried the lighting cable would be pushed under certain streets and driveway crossings. During the course of construction, however, it became apparent that subsoil conditions along the construction route, which were unanticipated by the parties, would necessitate the utilization of more expensive construction methods in order to complete the project according to specifications. Pursuant to the terms of the contract, Schulman sought and received permission from the village engineer to perform the additional work. An alleged three-month delay by the engineer in rendering his decision also added to the costs of the project since Schulman was forced to complete the construction during months of adverse weather conditions. Following completion of the work, Schulman submitted a bill for the increased costs in the amount of $29,710.32, which the village has refused to pay.

The village filed a motion to dismiss the complaint, which was denied by the trial court, then filed a motion for summary judgment supported by affidavit. It alleged that the contract was void under section 8 — 1—7 of the Illinois Municipal Code (Ill. Rev. Stat. 1977, ch. 24, par. 8 — 1—7), since the village had not passed an ordinance appropriating monies for the contract. The motion was supported by the affidavit of Matthew Tierney, the village clerk, who averred that “[a]t no time have any ordinances been passed by the Village creating any liability or appropriating any of its monies or the expenditure of any of its monies for the purposes alleged by the Plaintiff in its complaint.”

Schulman’s response to the motion included a copy of Village Ordinance No. 77 — 12, the appropriation ordinance for the fiscal year commencing May 1, 1977, and ending April 30, 1978. The ordinance appropriated $20,000 for street lighting and also referred to a revenue sharing appropriation for street lights and sidewalks in the amount of $132,000. Schulman’s response also included a copy of the minutes of a village board meeting held on March 20, 1978, wherein it approved the execution of the contract between Schulman and the village. The village’s reply to Schulman’s response added the affidavit of Stefanie T. Makas, the village treasurer, in which she averred that Schulman had been paid the sum of $154,436.08 in connection with the subject contract.

Following arguments of counsel, the trial court granted the village’s motion for summary judgment on April 19, 1982. On May 20, 1982 (31 days after entry of judgment), the clerk of the circuit court of Lake County received by mail and date-stamped Schulman’s post-trial motion. The village moved to strike the motion as untimely since it had not been filed with the circuit clerk within 30 days of the judgment as required by section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 68.3), now codified as section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1203). In response, Schulman presented the affidavit of its attorney which stated that the motion had, in fact, been placed in the U.S. Mail on May 18, 1982, only 29 days after the entry of summary judgment. The trial court struck Schulman’s post-trial motion as untimely and it appeals.

Prior to oral argument in this court, the village moved to dismiss the appeal as untimely on the grounds that Schulman’s post-trial motion and notice of appeal were filed more than 30 days after the entry of summary judgment in violation of Supreme Court Rule 303(a) (87 Ill. 2d R. 303(a)). This court denied the motion without comment and the village has again raised the issue in its brief and oral argument. Because of the jurisdictional nature of the village’s contention, we will address the basis of our denial of the motion to dismiss this appeal.

The issue presented is whether the deposit in the mail of a post-trial motion, within 30 days of the entry of a judgment, may constitute a filing of the motion for purposes of the time restrictions imposed by section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1203), formerly section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 68.3). A review of the reported cases reveals a split of authority in the appellate court as to whether the mailing of documents to the circuit court clerk may be deemed a filing. In Schneider v. Vine Street Clinic (1979), 77 Ill. App. 3d 946, 397 N.E.2d 194, appeal denied (1980), 79 Ill. 2d 634, the Fourth District, with a dissent, determined that a notice of appeal mailed on the 30th day, but not received and stamped until two days later, was insufficient to confer jurisdiction upon the appellate court. Similarly, in Fairfax Family Fund, Inc. v. Couch (1982), 103 Ill. App. 3d 492, 431 N.E.2d 461, the Fifth District has held that a post-trial motion and a notice of appeal mailed on the 30th day, but not received and stamped until the next day, were also insufficient.

However, the Fifth District, in Department of Conservation v. Baltimore & Ohio R.R. Co. (1982), 103 Ill. App. 3d 417, 431 N.E.2d 441, appeal denied (1982), 91 Ill. 2d 558, also has held that an appeal to the circuit court from an order of the Commerce Commission was timely if the notice of appeal was mailed on the last day, even though not received until after the time had expired, and that the affidavit of counsel was sufficient proof of mailing. Further, in Holesinger v. Dubuque Feeder Pig Co. (1982), 104 Ill. App. 3d 39, 432 N.E.2d 645, the Third District rejected the Schneider decision and held that a notice of appeal mailed on the 30th day, but not received until seven days later, was sufficient to confer appellate jurisdiction. Our supreme court has not addressed the issue.

In each of the foregoing cases, the opinion offers a detailed analysis of the relevant provisions of the statutes and Supreme Court Rules together with applicable common law principles. It would be redundant for us to set forth a duplicative analysis here. Suffice it to say, we find the rationale and result reached in the Holesinger and Department of Conservation decisions to be most persuasive. Accordingly, we conclude that the mailing of Schulman’s post-trial motion on the 29th day after the entry of summary judgment was timely notwithstanding that the clerk of the circuit court did not receive it until the 31st day. Since Schulman filed its notice of appeal within 30 days of the denial of its timely filed post-trial motion, this appeal is also timely. 87 Ill. 2d R. 303(a); see, e.g., City of Peoria v. Illinois Commerce Com. (1983), 96 Ill. 2d 416; Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399.

We next consider whether the trial court properly entered summary judgment in favor of the village.

Section 57 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57), now codified as section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005) provides that either plaintiff or defendant may move, with or without supporting affidavits, for summary judgment and the opposite party may file counter affidavits! If the pleadings, depositions, affidavits, exhibits and admissions on file then show there are no remaining genuine issues of material fact, the moving party is entitled to summary judgment as a matter of law. (Burks Drywall, Inc. v. Washington Bank & Trust Co. (1982), 110 Ill. App. 3d 569, 575, 442 N.E.2d 648, 653; Smith v. St. Therese Hospital (1982), 106 Ill. App. 3d 268, 270, 435 N.E.2d 939, 940.) Summary judgment is a drastic remedy and is to awarded with caution; only if the right of the movant is clear and free from doubt may it be granted. Burks Drywall, Inc. v. Washington Bank & Trust Co. (1982), 110 Ill. App. 3d 569, 575, 442 N.E.2d 648, 653; In re Estate of Tomaso (1980), 82 Ill. App. 3d 286, 288, 402 N.E.2d 702, 704-05; Indiana Harbor Belt R.R. Co. v. Budd Co. (1980), 87 Ill. App. 3d 91, 94, 408 N.E.2d 944, 947.

It is well recognized that any contract entered into by municipal corporate authorities is ultra vires and void unless an appropriation has been made for the funds to be expended. (Ill. Rev. Stat. 1981, ch. 24, par. 8 — 1—7; Diversified Computer Services, Inc. v. Town of York (1982), 104 Ill. App. 3d 852, 858, 433 N.E.2d 726, 731, appeal denied (1982), 91 Ill. 2d 568; Koudelka v. Village of Woodridge (1980), 91 Ill. App. 3d 884, 888, 413 N.E.2d 1381, 1383.) A party who contracts with a municipality is presumed to know whether the municipality is prohibited from entering into the contract. (In re Petition by City of East Peoria (1982), 105 Ill. App. 3d 712, 714, 434 N.E.2d 781, 783.) However, if the contract is within the power or authority of the municipality, but a portion of the contract may be beyond its power or the power may have been irregularly exercised, the municipality may not assert such grounds to avoid the contract where to do so would give it an unconscionable advantage over the other party. Branigar v. Village of Riverdale (1947), 396 Ill. 534, 542, 72 N.E.2d 201, 205; Diversified Computer Services, Inc. v. Town of York (1982), 104 Ill. App. 3d 852, 858, 433 N.E.2d 726, 731, appeal denied (1982), 91 Ill. 2d 568; Stahelin v. Board of Education (1967), 87 Ill. App. 2d 28, 41-42, 230 N.E.2d 465, 472.

It may be determined from this record that the contract for street lighting was within the power of the village. (See Ill. Rev. Stat. 1981, ch. 24, pars. 9 — 3—1, 11 — 80—4.) However, the facts presented to the trial court in the summary judgment proceedings are contradictory, and it may not be determined whether or not an appropriation of funds had been made for this purpose. The parties agree that the contract was executed and the extra work performed. Schulman has presented an ordinance of the village showing a general appropriation for street lighting of $152,000. It has also submitted a copy of the minutes of the village board wherein the Schulman contract was expressly approved. However, the village clerk avers that no appropriation was made for this specific contract and the village treasurer avers that Schulman has already been paid $156,439.08 pursuant to the contract.

Based upon this record, absent an evidentiary hearing, one can only speculate as to how these apparently contradictory facts may affect the legal issues presented by this appeal. Because these remain disputed issues of material fact, the trial court erred in granting summary judgment.

For the foregoing reasons, the orders of the circuit court of Lake County granting summary judgment to the village and striking Schulman’s post-trial motion are reversed and this cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

HOPF and UNVERZAGT, JJ., concur.


author: JUSTICE ALLOY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEROY LEIKER, Defendant-Appellant.
    Third District
    No. 82-747
    Opinion filed June 8, 1983.

      Robert Agostinelli and Jean Herigodt, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    L. Patrick Power, State’s Attorney, of Kankakee (John X. Breslin and Vicki R. Wright, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

Following a jury trial, the defendant, Leroy Leiker, was convicted of two counts of indecent liberties with a child and one count of indecent solicitation of a child. (Ill. Rev. Stat. 1981, ch. 38, pars. 11— 4(a)(2), (3), 11 — 6.) He was sentenced to a term of four years’ imprisonment.

On appeal, the defendant raises four issues: (1) whether he was denied due process of law by an improper determination of his fitness to stand trial; (2) whether the trial judge improperly denied the defendant’s motion to suppress his inculpatory statements on the grounds that he had not validly waived his Miranda rights; (3) whether the trial judge erred in entering judgment on two counts of indecent liberties with a child where the underlying acts allegedly occurred almost simultaneously and thus constituted one offense; and (4) whether the ambiguity in the defendant’s sentence requires a remand for resentencing or for the imposition of additional sentences.

Taken with the case is a motion by the State and objections thereto to strike one sentence in the defendant’s brief and an affidavit appended to the brief, both of which relate to the defendant’s sentence as recorded at Menard Psychiatric Center where the defendant is incarcerated. The purpose of the contested language is to show that the defendant’s sentence is ambiguous and was wrongly recorded. Because the affidavit is evidence not of record and the disputed sentence refers to institutional records of the Menard Psychiatric Center which were not before the lower court, we allow the State’s motion to strike that material from the record on appeal. People v. Kalee (1982), 109 Ill. App. 3d 696, 440 N.E.2d 1254; People v. Gossage (1980), 80 Ill. App. 3d 36, 399 N.E.2d 334.

Facts relevant to the issues raised on appeal will be included in this opinion where appropriate.

The defendant first argues that the trial judge improperly failed to resolve the question of his fitness to stand trial by means of a full adversarial hearing. He claims that the judge found that a bona fide doubt existed regarding the defendant's fitness and that the judge subsequently erred in failing to conduct a full adversarial fitness hearing to resolve this doubt.

The record indicates that a nonadversarial hearing was held during which a previously ordered psychological report on the defendant was admitted without any discussion. No witnesses were called or any other evidence presented. The trial judge ruled that the defendant was fit to stand trial based solely on the psychologist’s report.

The State responds to the defendant’s first issue with a threefold argument. First, that the trial judge made no finding that a bona fide doubt existed regarding the defendant’s fitness to stand trial and thus that the failure to hold a full adversarial hearing was not reversible error. Specifically, the State argues that a psychological examination of the defendant ordered by the trial judge was for the purpose of determining whether a bona fide doubt of the defendant’s fitness existed not because such a doubt existed. Second, the State contends that the defendant has failed to show that he was prejudiced by the judge’s error, if any. Third, the State argues that the defendant has waived any issue regarding the psychological report since he failed to object to the summary admission of the report in the lower court to raise the issue in a post-trial motion.

Addressing the waiver issue first, we hold that the alleged error regarding the determination of the defendant’s fitness to stand trial is of such constitutional dimension that we will take cognizance of it under Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)) despite the defendant’s failure to object to the admission of the psychological report or to raise the issue in a post-trial motion. People v. Teague (1980), 83 Ill. App. 3d 990, 404 N.E.2d 1054.

The failure to follow procedures adequate to protect a defendant’s right not to be tried while incompetent violates the defendant’s due process rights. (Pate v. Robinson (1966), 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836; People v. Teague (1980), 83 Ill. App. 3d 990, 404 N.E.2d 1054.) Incompetency is defined as an inability to understand the nature and purpose of the proceedings and/or cooperate with counsel. Once a determination of incompetency has been made, trial may not be had until a restoration to fitness has occurred. Ill. Rev. Stat. 1981, ch. 38, par. 104 — 10 et seq.

When facts raising a bona fide doubt of a defendant’s fitness are made known to the trial court, the court must hold a fitness hearing. (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 11; Pate v. Robinson (1966), 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836.) We are concerned, in the case at bar, with the question of when and how a bona fide doubt may be raised. If no such doubt is raised, then the defendant may be tried without the necessity of an adversarial hearing to determine competency.

The defendant asserts a bona fide doubt existed in the trial judge’s mind when, on July 7, 1982, at a hearing on the defendant’s motion for the appointment of an expert to determine fitness, the judge stated: “It appearing to the Court the Defendant may be unable to stand trial, motion to determine Defendant’s fitness is referred to Dr. Erwin J. Baukus.” If, at that time, the trial judge believed a bona fide doubt of the defendant’s fitness existed, the ensuing examination was conducted for the purpose of resolving the ultimate question of fitness and should have been considered by the trial judge only in the context of a full adversarial hearing. On the other hand, if the defendant’s assertions of incompetency in his motion for appointment of an expert did not create a bona fide doubt of his fitness, then the examination by Dr. Baukus was for the purpose of determining whether a bona fide doubt of the defendant’s fitness existed.

The determination of whether a bona fide doubt of the defendant’s fitness exists rests within the sound discretion of the trial judge, who is in a superior position to observe the defendant and his conduct. (People v. Bivins (1981), 97 Ill. App. 3d 386, 422 N.E.2d 1044.) In the instant case, we find no abuse of the trial judge’s discretion in ruling that no bong fide doubt existed to warrant a full adversarial hearing on the question of the defendant’s fitness to stand trial. The trial judge appropriately considered the report by Dr. Baukus in reaching his conclusion that no bona fide doubt existed. (People v. Plecko (1970), 46 Ill. 2d 301, 263 N.E.2d 66.) Neither the assertions by the defendant in his motion for the appointment of an expert nor the trial judge’s comments that the defendant might be unable to stand trial were sufficient to raise a bona fide doubt.

The second issue raised by the defendant is whether the trial judge erred in refusing to suppress certain incriminating statements made by the defendant to the police. The defendant’s suppression motion was based in part on the allegation that his mental incapacity precluded a knowing and intelligent waiver of his Miranda rights. Reliance was placed on the psychological report prepared by Dr. Baukus. This report indicated that the defendant’s intellectual capacity was above that of mental retardation but in the borderline range of intelligence. The defendant’s IQ was measured at 75, giving him a mental age of 11 years, 11 months. His grammar, syntax and vocabulary were rated poor. He showed limited insight concerning the seriousness of the charges. Dr. Baukus concluded that the defendant understood his Miranda rights at the time of the examination.

The defendant testified at the suppression hearing that he attended special education classes in school and that he thought he was considered retarded.

On June 12, 1982, the day the offenses were committed, the defendant was orally advised of his Miranda rights by the arresting officer. The officer testified that the defendant understood his rights. He also stated that the defendant was upset and sobbed intermittently. The defendant did not make a statement on June 12.

The following day, standard Miranda warnings were read to the defendant from a card. Before the defendant gave a statement to the police officer questioning him, he was again read his rights from a form. The form was written in the first person, and the detective did not change the wording to the second person. The defendant again stated that he understood his rights. He made a statement, which was transcribed and read back to him. The defendant then signed a form which included a waiver clause. At that point the defendant asked about his court date and stated that he wanted three lawyers. The final draft of the defendant’s statement was signed by the defendant 45 minutes after the questioning began.

In reviewing the totality of circumstances surrounding the defendant’s confession, we hold that a preponderance of the evidence demonstrates that the defendant understood and knowingly waived his constitutional rights. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602; People v. Avery (1980), 88 Ill. App. 3d 771, 410 N.E.2d 1093.) No abuse of the discretion accorded the trial judge has been shown. People v. Noe (1980), 86 Ill. App. 3d 762, 408 N.E.2d 483.

A defendant’s subnormal mental capacity does not automatically render a confession invalid. Where, as in the case at bar, the record shows that the defendant’s subpar mentality does not interfere with his ability to comprehend the meaning of the Miranda warnings, his confession will not be suppressed. People v. Henderson (1980), 83 Ill. App. 3d 854, 404 N.E.2d 392; People v. DeSimone (1966), 67 Ill. App. 2d 249, 214 N.E.2d 305.

The third issue raised is whether the trial court properly entered judgment on two separate counts of indecent liberties when the acts upon which the counts were based were allegedly simultaneous in nature. A brief review of the facts underlying the defendant’s convictions is necessary to a resolution of this issue.

On June 12, 1982, the defendant and two minors, Jason and Robin, rode their bicycles to a septic tank in the trailer court where all of them lived. They climbed into the septic tank. The defendant took his clothes off and asked Jason and Robin to do the same. Both children testified that the defendant placed his mouth on Jason’s sex organ and his anus. It is these two acts which form the basis of the two indecent liberties convictions, one based on an act of deviate sexual conduct and the other on an act of lewd touching. Ill. Rev. Stat. 1981, ch. 38, pars. 11 — 4(a)(2), (3).

The defendant argues that the acts were committed almost simultaneously on a single victim and thus constituted one transaction and one offense, citing People v. Cox (1972), 53 Ill. 2d 101, 291 N.E.2d 1, as controlling. We reject the defendant’s argument and his reliance upon Cox. As we stated in People v. Zeiger (1981), 100 Ill. App. 3d 515, 426 N.E.2d 1229, in light of more recent Hlinois Supreme Court pronouncements on the subject of multiple convictions stemming from closely related acts, the rationale of Cox is no longer controlling as to multiple convictions and concurrent sentences. (People v. Zeiger (1981), 100 Ill. App. 3d 515, 517, 426 N.E.2d 1229, 1231.) Where offenses arise from a series of closely related acts and the offenses are not, by definition, lesser included offenses, multiple convictions with concurrent sentences can be entered. People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838; People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180.

In the case at bar, the acts committed upon Jason Hubert were clearly two separate acts, involving abuse to two separate parts of the boy’s body. The defendant’s two convictions for indecent liberties with a child can stand.

The final issue raised by the defendant is whether the ambiguity in the defendant’s sentence requires a vacation of the defendant’s sentence and a remand for resentencing. The defendant was found guilty of three charges, two counts of indecent liberties with a child and one count of indecent solicitation. Our review of the lower court proceedings indicates that each of these convictions is valid. The defendant was sentenced to a single four-year term of incarceration.

The sentence imposed is incomplete, not ambiguous. The record shows the trial judge entered judgment on all three counts, yet only one sentence was given. In pronouncing sentence, the trial judge stated:

“This particular case is perplexing for the Court in terms of the fact that LeRoy’s condition is not unknown to everybody involved. The offense for which he was convicted is a Class 1, providing a mandatory penitentiary sentence of four years if the Court elects to sentence the Defendant to the penitentiary.
* * *
*** and I will impose upon this Defendant the minimum sentence that the law requires, which is a term of no less than four years in the Department of Corrections.”

Indecent liberties is a Class 1 felony, punishable by a term of imprisonment of not less than four nor more than 15 years. Indecent solicitation is a Class A misdemeanor, punishable by any term of imprisonment less than one year. Probation is an option for both classes of crime. Ill. Rev. Stat. 1981, ch. 38, pars. 11 — 4(e), 11 — 6(c), 1005 — 8— 1(a)(4), 1005 — 8—3(a)(1), 1005-6-1.

Apparently, the trial judge intended to sentence the defendant for only one offense, that is, one of the two indecent liberties convictions. Because a judgment of conviction is not final until a sentence is imposed (People v. Wilkins (1980), 83 Ill. App. 3d 41, 403 N.E.2d 799), we must remand this cause for the purpose of imposing sentence upon the two remaining convictions, one for indecent liberties, the other for indecent solicitation.

This cause is remanded to the circuit court of Kankakee County for the imposition of sentence on one count of indecent liberties and one count of indecent solicitation. In all other respects, the judgment is affirmed.

Affirmed, cause remanded.

SCOTT and BARRY, JJ., concur.


author: JUSTICE HEIPLE

text:
    THE PEOPLE ex rel. TYRONE C. FAHNER, Attorney General, Plaintiffs-Appellants, v. AMERICAN BUYERS CLUB, INC., et al., Defendants-Appellees.
    Third District
    No. 82—586
    Opinion filed June 3, 1983.
    Rehearing denied July 18, 1983.
    Neil F. Hartigan, Attorney General, of Springfield (Kathleen M. Lien, Assistant Attorney General, of counsel), for appellant.
    Joseph R. Napoli and Arthur J. Inman, both of Peoria, for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

The Illinois Attorney General filed a complaint on behalf of the People against American Buyer’s Club, Inc., and John W. Huette, pursuant to section 7 of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1979, ch. 121V2, par. 267). American Buyer’s Club (hereinafter Buyer’s Club) was a buyers cooperative which sold nonexpiring memberships in consideration for the right to purchase home furnishings at a discount. John Huette was the president and principal shareholder of the Buyer’s Club.

The complaint alleged that the defendants collected down payments of various amounts from 219 members, but failed to forward the money to the manufacturers or to refund it to the members. The complaint sought a finding that the defendants had violated the Consumer Fraud and Deceptive Business Practices Act (hereinafter the Act) and an injunction against further violations, plus full refunds to the members of all down payments paid on unfilled orders. A request for admission of facts was filed pursuant to Supreme Court Rule 216 (87 Ill. 2d R. 216) as to the amount of the down payments of each of the 219 members, totaling a monetary claim of $55,964.48. The requests were not answered in proper form within the allotted time and, therefore, the facts contained therein were deemed admitted. However, the court file did not contain a copy of the request, and the court refused to accept a file stamped copy in replacement. As a result, the plaintiff was only able to prove $7,873.93 in damages via witness testimony.

Following a two-day bench trial, the circuit court entered a judgment order on April 15, 1982. The court found that the monetary claim was proved as to 12 members, that the conduct of certain employees at the Buyer’s Club was deemed an unfair practice, and that the conduct of Huette was not proved to be fraudulent. The court’s order stated that the Buyer’s Club violated the Act, that the defendants were enjoined from using prohibited practices, and that judgment was entered against the Buyer’s Club and Huette in the amount of $7,873.93.

A motion was filed on behalf of the People to modify the judgment order to show damages of $55,964.48 rather than $7,873.93 and for a finding that Huette had violated the Act, or in the alternative, to grant a new trial because of the court’s error in failing to accept a file stamped copy of the request for admission of facts and in failing to find that Huette engaged in fraudulent or deceptive practices.

Following a hearing on the motion, the court changed the judgment order to find Huette guilty of violating the Act. However, the court refused to find that in violating the Act, Huette was guilty of fraudulent practices. The court also refused to accept the file stamped copy of the request for admission of facts. This appeal is taken from the court’s denial of the modifications or of the request for a new trial.

After reviewing the relevant provisions of the Consumer Fraud and Deceptive Business Practices Act, we believe that the court erred in finding that Huette violated the Act without being guilty of fraudulent practices.

The definition of a fraudulent practice is found in the Act itself. (Duhl v. Nash Realty, Inc. (1982), 102 Ill. App. 3d 483, 495.) It is not necessary to prove the elements of common law fraud in order to recover under the Act. (Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 198.) Therefore, the court’s finding that Huette violated the Act is also a finding that Huette is guilty of committing fraudulent or deceptive practices. By saying that a violation of the Act is not fraudulent, the trial court caused needless confusion. We will enter an order modifying the judgment.

The next issue is whether the court erred in refusing to accept a copy of the plaintiff’s request for admission of facts when it could not find the original in the court file.

The record here shows that the request was indeed filed but, due to a possible clerical error, the original was not placed in the court file. Courts of record have inherent power to substitute papers, files, and records which have been lost. (In re Estate of Bird (1951), 410 Ill. 390, 398.) Since there was sufficient evidence that the request was filed, the court should have restored the court file by accepting the plaintiff’s copy of the request to admit.

The request to admit asked the defendant to verify the amount paid by 219 named members of the Buyer’s Club. Because the request was not answered or objected to within 28 days pursuant to Supreme Court Rule 216(c) (87 Ill. 2d R. 216(c)), the amounts paid by defendant’s customers, as set out in the request, are deemed admitted.

However, the defendant argues that because the plaintiff introduced evidence concerning matters covered by the request, they have waived the right to rely on the facts admitted in the request. We agree, but only to a limited extent.

If a party introduces evidence as to a fact contained in a request to admit, he waives the right to rely on the other party’s admission. (Welch v. City of Evanston (1980), 87 Ill. App. 3d 1017.) But this waiver is limited only to those facts upon which evidence is offered.

In the present case, the court was able to find a violation of the Act independent of defendant’s admissions in the request. Plaintiff simply wished to use the request to prove damages so as to facilitate restitution to the members of the Buyer’s Club. At trial, plaintiff introduced evidence as to the amount owed to 12 members. Had they failed to sustain their burden of proof with respect to those members, they would have waived the right to rely on the admissions, but only as to those 12 members. The plaintiff has not waived the benefit of defendant’s admissions regarding the remaining 207 members. Therefore, we will enter judgment for the plaintiff in the amount of $55,964.48, which is the total amount of damages proven at trial and in the request to admit.

To summarize our decision, pursuant to our authority under Supreme Court Rule 615(bXl) (87 Ill. 2d R. 615(b)(1)), we have ordered that the trial court’s judgment be modified as follows: (1) Finding No. 4 of the trial court’s judgment order is to be modified so as to find John W. Huette guilty of committing fraudulent or deceptive practices in violation of the Consumer Fraud and Deceptive Business Practices Act, and; (2) the amount of damages listed in paragraph C of the judgment order will be changed from $7,873.93 to $55,964.48 and paragraph D modified to list the names of Buyer’s Club members and the amounts owed as set forth in the request to admit.

Affirmed in part; reversed in part; judgment order modified.

STOUDER, P.J., and ALLOY, J., concur.


author: JUSTICE TRAPP

text:
    BRUCE D. HARRIS, Plaintiff-Appellee, v. GERALD W. DAY, Defendant-Appellant.
    Fourth District
    No. 4—82—0167
    Opinion filed June 21, 1983.

      Costigan & Wollrab, of Bloomington (James C. Wollrab and Dean M. Davis, of counsel), for appellant.
    Robert J. Lenz, of Bloomington, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendant, Gerald Day, appeals from a judgment entered on a jury verdict finding for plaintiff, Bruce Harris, and awarding damages of $16,000 in his suit for recovery of personal injuries. We affirm.

On the afternoon of May 15, 1973, plaintiff, age 14, was playing tennis with a friend, Jay Allen, on tennis courts which were bordered on the north by Gregory Street, a four-lane road in Normal. Gregory carries east-west traffic and is divided by a three-foot median. During the match Allen hit a tennis ball over the fence and it landed on Gregory Street. Plaintiff went into the street to retrieve the ball and was struck on the hip and knee by defendant’s auto which was eastbound on Gregory. Only the parties to this suit observed the event, and needless to say their testimony differs.

The plaintiff testified that as he left the courts, he noticed a car traveling on Gregory Street some 600 to 700 feet away. He crossed the sidewalk and trotted to the center line of the two eastbound lanes where the ball was located. While bent over he heard the sound of a car, froze for a second, turned around, and saw the car several feet away. He tried to jump out of the way, but was struck by the right front corner of the defendant’s auto in the southernmost, eastbound lane.

Defendant testified that he was driving his vehicle towards Main Street on Gregory and that he was in the southerly lane of the portion of the road for eastbound traffic. He stated that his car was 100 to 150 feet from plaintiff when he first saw the plaintiff and estimated his car may have been traveling at approximately 25 miles per hour but not over 30 miles per hour. When he first saw plaintiff, plaintiff was trotting at approximately jogging speed into the street. He went over to within at least two or three feet of the concrete median and at that point leaned over to pick up the tennis ball. This was in the northern portion of the two eastbound lanes, and closer to the median than the center of the eastbound lanes. When defendant first saw plaintiff coming out in the street, defendant applied his brakes and testified he slowed down to perhaps 20 miles per hour. Plaintiff picked up the tennis ball with his back toward defendant, and then turned around and looked at defendant’s car. Defendant then took his foot off the brake because plaintiff was stationary. Defendant thought plaintiff had seen him and would wait until defendant has passed. Defendant testified that plaintiff remained motionless for an instant and then began running back across the street to the curb. Defendant slammed on his brakes, leaving skid marks approximately 40 feet long but was unable to avoid a collision. Defendant testified that he was unable to swerve or honk his horn because there just wasn’t time.

The collision threw plaintiff into the grassy portion of the shoulder. Plaintiff testified that his leg swelled up to fill his sweat pants and felt as if it were on fire. Plaintiff’s leg was immobilized by ambulance personnel, and he was taken to Brokaw Hospital in Normal where he received three or four stitches and remained for five days. When he left the hospital he was on crutches and spent a week in physical therapy. He could not get out of bed for two or three days after leaving the hospital and remained on crutches for approximately three weeks after leaving the hospital. He did, however, go back to school and was able to finish his freshman year In high school.

Plaintiff began his sophomore year in the fall of 1973 and went out for the football team after Dr. Lyman, his treating physician, gave him a physical examination which was required for participation. No X rays or tests were done on the knee, but plaintiff told the doctor that the knee was stiff. In late summer practices, which were double sessions, plaintiff’s knee was hit. It was sore for a couple of days, and he then returned to practice. Plaintiff practiced with the team two to 21/2 months that fall, but ultimately quit because he could not keep up.

In April 1975, plaintiff was involved in an automobile accident when his car slid on ice and collided with another vehicle. He received a concussion but, according to plaintiff, neither his right leg nor any part of his lower body was injured. Although plaintiff testified that there were no lower body injuries, Dr. Van Ness testified that plaintiff received ultrasound treatments on his knee following the accident. The doctor did not specify which knee received the treatment, and plaintiff attempted to impeach the doctor’s refreshed collections since the records upon which he relied did not state which part of the body received the ultrasound. Defendant then impeached plaintiff’s testimony that his legs were not injured in this automobile accident with his pretrial deposition in which he stated that he was in an accident on April 3,1975, and received injury to his right knee and leg.

In addition to the above incidents, plaintiff testified that his knee had gone out more than 20 times since the accident in May of 1973. These incidents caused pain, limping and sometimes required the use of crutches. In late September of 1975, plaintiff had an operation on his knee because it kept going out, causing severe inconvenience by its persistent interruptions of his day-to-day life. The operation was performed by Dr. Terry Noonan, who removed some cartilage and tightened his ligaments. He was in the hospital for about a week, then remained at home for about a week and one-half before going back to school.

Dr. Terry Noonan, an orthopedic surgeon, testified that he examined plaintiff on September 3, 1975, in relation to what plaintiff told him was an unstable knee caused when he was hit by a car in 1973. Noonan X-rayed, observed, and manipulated the knee and found that there was abnormal movement of the knee from side to side, apparently because of an old injury to a knee ligament. There was also an abnormal forward movement when the leg was twisted outwards, and some calcification in the knee. These conditions observed in plaintiff’s right knee appeared to have been the result of a traumatic injury. On cross-examination, Noonan testified that plaintiff did not inform Noonan of the automobile accident he was involved in earlier in 1975, nor that plaintiff had broken his left leg while playing basketball in the spring of 1974. Noonan testified that if the right knee was also injured in an accident in April 1975, as well as May of 1973, he would not be able to tell which accident caused the conditions in the knee which he observed in his examination in September of 1975. Noonan examined plaintiff several times subsequent to the operation. In November of 1978, Noonan noted some early arthritic changes in the knee which might be expected to be progressive in nature and which could become painful. Based on his examinations of plaintiff, Noonan believed that plaintiff would suffer pain in the future, would need medical care based on intermittent discomfort, and could possibly need additional reconstructive surgery. He was of the opinion that the instability in plaintiff’s knee and his arthritis would be permanent.

Another orthopedic surgeon, Dr. Gerald Bratberg, examined plaintiff for the first time in March of 1981. He testified that the injury to the knee was traumatic in origin, and that it resulted from an injury rather than being a congenital problem, or a problem occurring from normal wear. Bratberg stated that the only history of plaintiff’s knee related to him was that plaintiff was struck by a car as a child. He was not told of any other injuries. He stated that he would have no way of knowing what caused the onset of the knee condition but would not expect a knee injury of this kind to result from merely slipping and falling on a knee while engaged in normal activity. The injury found would usually require a severe blow to the outside part of the knee. Bratberg also removed some torn cartilage from plaintiff’s knee in 1981. He was of the opinion that plaintiff would suffer pain in his right knee in the future and that the looseness of his ligaments, and arthritis were permanent conditions.

On the issue of damages, Professor Alan Dillingham, a labor economist and head of the economics department at Illinois State University, testified regarding the present value of future earnings for plaintiff. He did this using the minimum wage of $3.35 per hour and the assumption that this minimum wage would increase at 6.2% per year, compounded annually, since this rate of increase was the average annual rate the minimum wage had increased since its inception in 1938. He testified that the expected work life for a 23-year-old male would be approximately 39 years, and that the average working period per year for a full-time American worker would be 50 to 52 weeks. Assuming a five-week work loss per year by an unskilled laborer, it could be expected that such a laborer would lose about 15% of his income through his work life. Dillingham testified that the present value of lifetime earnings for a 23-year-old male at the minimum wage under the assumption that it would increase at 6.2% per year would be $119,841. Present value of the future lost earnings for a 23-year-old male who loses 10% of his work per year throughout his work life is $17,976. Medical bills of approximately $3,000 were also admitted into evidence.

Defendant’s first argument on appeal is that the jury’s verdict is against the manifest weight of the evidence, primarily for the reason that the evidence fails to disclose that defendant was not exercising due care. Since this case was tried subsequent to our supreme court’s decision in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, the fact that plaintiff was partially at fault would not require a reversal of the jury’s verdict.

Verdicts and judgments are not against the manifest weight of the evidence unless a conclusion contrary to the jury’s is clearly evident, plain, and indisputable. (Didier v. Jones (1978), 61 Ill. App. 3d 22, 377 N.E.2d 572.) Where there is a conflict in the testimony, we will not substitute our judgment for that of the trier of fact whose function it is to determine the credibility of the witness’ testimony, and the inferences to be drawn from that testimony. We cannot say that the opposite conclusion is clearly evident. Defendant could have been found negligent for failing to comply with section 11 — 1103(c) of the Illinois Vehicle Code which provides, in part, that:

“[E]very driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child *** upon a roadway.” (Ill. Rev. Stat. 1973, ch. 95Va, par. 11 — 1003(c).)

The jury could have found that the defendant was negligent for failing to keep a proper lookout when he did not see plaintiff until he was 100 to 150 feet away although there was an unobstructed view for 600 to 700 feet between them, and the jury was not required to accept defendant’s testimony that he was not exceeding the maximum speed limit. The physical evidence of tire marks longer than 40 feet is not necessarily consistent with defendant’s that he slowed his car to 20 miles an hour. The jury could also have found that defendant’s failure to take evasive action, sound his horn, or slow down was, under the circumstances, unreasonable.

Defendant next argues that the trial court erred in failing to direct a verdict at the close of plaintiff’s case because the evidence would never support a finding that defendant breached a duty, or that this breach was the proximate cause of plaintiff’s ongoing knee problems. We disagree.

The often-cited decision of Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, sets forth the applicable standards for directing verdicts and entering judgments n.o.v.

“¡Vjerdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.

What we have previously said with reference to the proof of defendant’s breach of duty will suffice to answer defendant’s argument on this issue.

We must consider plaintiff’s proof of causation. The general rule regarding proof necessary to make a prima facie case of proximate cause in a negligence case alleging personal injuries is that medical testimony is not required to prove a causal connection between the defendant’s act or omission and plaintiff’s injuries where the connection is clearly apparent from the illness and the circumstances attending it. (Jackson v. Navik (1976), 37 Ill. App. 3d 88, 346 N.E.2d 116; Hyatt v. Cox (1965), 57 Ill. App. 2d 293, 206 N.E.2d 260.) As this court noted in Hyatt, however:

“Where the injury complained of is remote in time from the accident or the condition is one that is shrouded in controversy as to origin, such as the intervention of either a prior or subsequent injury or disease, layman testimony may be insufficient to establish a prima facie showing of a causal relationship.” (57 Ill. App. 2d 293, 299, 206 N.E.2d 260, 263.)

Defendant’s argument here is that in light of plaintiff’s subsequent injuries to his knee, medical evidence of causation was necessary and lacking in plaintiff’s case in chief. We agree with the defendant’s proposition but not with his application.

Although no doctor testified that the accident in May of 1973 was the cause of all of plaintiff’s problems, the doctors did testify that plaintiff’s condition was of traumatic origin and that the injury would have required severe impact such as occurred in the accident. Coupled with plaintiff’s testimony of the events surrounding the accident and this medical testimony, we are not persuaded that plaintiff failed to establish a prima facie case with respect to the proof of causation. • Proof that the accident was the sole cause of plaintiff’s knee problem is not necessary so long as plaintiff presents proof that the original trauma was a substantial factor in producing the complained of injuries. Stephenson v. Air Products & Chemicals, Inc. (1969), 114 Ill. App. 2d 124, 252 N.E.2d 366; Annot., Proximate Cause: Liability of Tortfeasor For Injured Person’s Subsequent Injury or Reinjury, 31 A.L.R.3d 1000, 1004 (1970).

In this connection we note that defendant did not tender any instructions requiring the jury to determine whether the subsequent reinjuries were caused by an intervening independent cause. The court is under no obligation to give instructions on its own motion (City of Chicago v. Baird (1971), 132 Ill. App. 2d 644, 270 N.E.2d 259), and if defendant’s theory is that plaintiff’s knee problems were caused by subsequent intervening causes, a proper instruction should have been submitted for consideration. (See Dolan v. Crammond (1979), 71 Ill. App. 3d 289, 389 N.E.2d 206.) Plaintiff’s proof of causation was sufficient to create a question of fact to be resolved by the jury. Moreover, the rule is well settled that a tortfeasor can be held liable for subsequent injuries or reinjuries which result as a normal consequence of the original tortfeasor’s negligence. (Stephenson; Restatement (Second) of Torts sec. 460 (2d ed. 1965); cf. Bak v. Burlington Northern, Inc. (1981), 93 Ill. App. 3d 269, 417 N.E.2d 148.) A statement of the rule is set out in section 460 of the Restatement (Second) of Torts, which provides:

“If the negligent actor is liable for an injury which impairs the physical condition of another’s body, the actor is also liable for harm sustained in a subsequent accident which would not have occurred had the other’s condition not been impaired, and which is a normal consequence of such impairment.”

We conclude the trial court did not err in refusing to direct a verdict for defendant.

Defendant next urges error in the trial court’s overruling of his objections to testimony from Professor Dillingham, who testified in reference to plaintiff’s loss of future wages. On appeal, defendant argues that plaintiff presented an insufficient foundation to justify testimony of lost future wages. Additionally, defendant argues that an instruction allowing the jury to assess lost future wages was improper. Defendant’s arguments relating to the inadequacy of the foundation for Dillingham’s testimony is essentially that the expert based his opinion on assumptions not substantiated in the record, particularly the assumption that plaintiff’s knee would result in a work loss of five weeks per year and that plaintiff would earn the minimum wage.

While an opinion of an expert should not be based upon numerous varying and uncertain factors (see Boose v. Digate (1969), 107 Ill. App. 2d 418, 246 N.E.2d 50; E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 611.25, at 332-33 (3d ed. 1979)), we note the equally well-settled rule that the assumptions suggested in a hypothetical question need not be undisputed but only supported by evidence in the record. (Johns-Manville Products Corp. v. Industrial Com. (1979), 78 Ill. 2d 171, 399 N.E.2d 606.) Evidence in the record, although in dispute, is not speculative and supports the use of a five-week work loss assumption. Plaintiff testified to an average work loss of six to eight weeks per year. The defendant’s further suggestion that use of minimum wage as a wage rate for a high school graduate with two years of college education was improper is without merit.

Defendant also argues that there was no foundation to instruct the jury to award lost future wages, since there was no evidence of ability, opportunity, intelligence or future vocation. Plaintiffs testimony, along with other evidence, indicates that plaintiff had been employed at Towanda Grain Company, Clark Aviation, the Normal Park Department, and as a summer farm worker. Plaintiff also introduced evidence of his high school and college education. We note the absence of specific wage figures, but this was undoubtedly due to the fact that plaintiff was still in school and had no defined career plans or full-time employment history.

A party is entitled to have the jury instructed on its theory of recovery so long as that theory is supported by the facts in evidence and reasonable inferences therefrom. (Wallace v. Weinrich (1980), 87 Ill. App. 3d 868, 409 N.E.2d 336.) The record contains evidence that plaintiff’s injury was permanent and evidence that such injury would reduce plaintiff’s employment options, and/or result in a loss of time from future employment. Plaintiff himself may testify that his injuries diminished his capacity to work, and the general rule is that the appearance of the plaintiff on the witness stand, his testimony as to the nature of his injuries and their duration is sufficient to take the question of impaired earning capacity to the jury. (Bunch v. Rose (1973), 10 Ill. App. 3d 198, 293 N.E.2d 8.) We conclude that there was sufficient evidence for the jury to arrive at a calculation for lost future wages without undue danger of speculation or conjecture. See Arnett v. Thompson (Ky. 1968), 433 S.W.2d 109; Martin v. United States (D. Ariz. 1979), 471 F. Supp. 6.

Defendant next objects to the submission to the jury of Illinois Pattern Jury Instruction (IPI), Civil, No. 70.03 (2d ed. 1971), the disputed portion of which incorporates section 11 — 1003(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95%, par. 11 — 1003(c)), as follows:

“ ‘Notwithstanding the foregoing provisions of this section every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any obviously confused or incapacitated person upon a roadway.’ ” (Emphasis added.)

We believe it was proper to give the instruction referring to a 14-year-old as a child, but agree with defendant that there is no evidence to support the suggestion that plaintiff was incapacitated. The word “incapacitated,” in its ordinary denotation, refers to a physical disability. (Webster’s New World Dictionary, Second College Edition 709 (1980).) Instructions concerning violations of a statute should not be given unless the evidence is adequate to support a finding that a violation occurred (Wallace), and if a part of the statute is not supported by competent evidence in the case, the better practice is to delete such unsupported language. (Nagelmiller v. Seibel (1964), 47 Ill. App. 2d 39, 197 N.E.2d 457.) The portion of the instruction referring to incapacitated persons should have been deleted from the instruction, but such error is not prejudicial in light of the clear applicability of the duty to exercise proper precaution upon observation of a child. The jury could have found a violation of the statute because plaintiff was a child even though no evidence suggested incapacitation.

Defendant next urges error in the refusal to submit his proposed special verdict form to the jury which would have required the jury to state the total damages and percentages of fault of each party in accordance with the supreme court’s adoption of pure comparative negligence in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886. Defendant points out in support of his argument that in several States that have adopted pure comparative negligence, such special verdict forms are suggested and even required. (See Placek v. City of Sterling Heights (1979), 405 Mich. 638, 275 N.W.2d 511; Lawrence v. Florida East Coast Ry. Co. (Fla. 1977), 346 So. 2d 1012; Li v. Yellow Cab Co. (1975), 13 Cal. 3d 804, 532 P.2d 1226.) Alvis does not explicitly mandate such computational forms; and the verdict form given was in accord with IPI Civil No. A45.05 (1981 Supp.) which requires no finding by the jury of the percentage of fault or total damages. This court found no error in this form of instruction in Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703.

The drafters of the jury instructions have also adopted computational verdict forms (IPI Civil Nos. A45.06, A45.07 (1981 Supp.)), but the comments suggest that such instructions need be given only when the court is desirous of learning the percentage of fault of the parties. This writer would require the computational verdict forms in all cases for the reasons listed in the Lawrence opinion of the Florida Supreme Court, but under the circumstances here, even assuming error in failing to give the computational form, such would not be prejudicial since the jury was adequately instructed on the doctrine of pure comparative negligence.

Finally, defendant requests this court to order a remittitur for the reason that defendant believes the award of compensation shocks the conscience. We, however, decline to do so. We find applicable here the comments in Lau v. West Towns Bus Co. (1959), 16 Ill. 2d 442, 158 N.E.2d 63:

“We are not mimindful of our obligation to carefully scrutinize the record to determine whether the amount of the verdict is so large as to indicate passion and prejudice. This we have done, and we conclude from the evidence that although the verdict may well be in excess of the amount which the judges of this court would have allowed if they had heard the evidence and made the original determination, yet we do not believe that it is so excessive as to show passion or prejudice.” 16 Ill. 2d 442, 453, 158 N.E.2d 63, 69.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

MILLS and GREEN, JJ., concur.


author: JUSTICE LORENZ

text:
      In re MARRIAGE OF CLAUDIA L. DE ROSA, Petitioner-Appellant, and FRANCIS P. DE ROSA, Respondent-Appellee—(Betty Liberty, Respondent.)
    First District (5th Division)
    No. 82—2437
    Opinion filed June 17, 1983.

      Feiwell, Galper & Lasky, Ltd., of Chicago (Barbara J. Vrdolyak, of counsel), for appellant.
    Kaufman and Litwin, Ltd., of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

This is an interlocutory appeal from an order entered on October 8, 1982 allegedly modifying a prior agreed order for preliminary injunction entered on October 23, 1981 during the pendency of a dissolution of marriage proceeding between Claudia De Rosa, petitioner, Dr. Francis De Rosa, respondent, and Betty Liberty, corespondent. The subsequent order allowed respondent to sell 10 of the parties’ 34 thoroughbred horses acquired during the marriage although the prior injunctive order had mutually enjoined them from transferring any marital assets “except in the normal and usual course of business.” Petitioner appealed pursuant to Supreme Court Rule 307(a)(1) (87 Ill. 2d R. 307(a)(1)).

Petitioner contends on appeal that (1) the October 8, 1982, order is appealable on an interlocutory basis as a matter of right pursuant to Supreme Court Rule 307(a)(1); (2) the trial court abused its discretion in modifying the injunctive order, and (3) the trial court erred in denying her petition for rule to show cause.

The pertinent facts follow.

Petitioner and respondent, a urological surgeon, were married on December 18, 1967, and had one minor child, Melanie. During the course of their marriage, they engaged in the purchase, breeding, training, and racing of thoroughbred horses, primarily in Florida.

On October 14, 1981, petitioner filed her petition for dissolution of marriage against respondent seeking, inter alia, dissolution of the parties’ marriage, custody of Melanie, maintenance, child support, and a just division of marital property. Respondent counterpetitioned on October 27, 1981, and thereafter both parties amended their respective petitions:

On October 23, 1981, the trial court entered an agreed order which provided in pertinent part that: “(1) Petitioner, Claudia L. De Rosa, and Respondent, Francis P. De Rosa, are hereby mutually enjoined and restrained from selling, transferring, dissipating, secreting or in any other manner disposing of any assets acquired during the course of the parties’ marriage, until further order of court, except in the normal and usual course of business.”

Respondent began arrangements in April 1982 to sell 10 horses— 4 yearlings and 6 broodmares — and paid all entry and registration fees to enter the horses in auctions commencing September 26, 1982, and October 10, 1982, in Ocala, Florida.

On September 8, 1982, respondent filed a petition requesting that he be granted the right to sell the 10 horses in order to pay outstanding costs and expenses relative to maintaining the horses, and that the funds be reserved to satisfy and pay capital gain taxes with the remaining proceeds escrowed to satisfy future expenses.

Petitioner responded to this petition, on September 15, 1982, and objected to any sale of horses as a transfer of assets in violation of the agreed injunctive order. Prior to a ruling on his petition, respondent sold a yearling, “Run for the River,” for $10,000 at the auction held on September 26, 1982. Petitioner thereupon filed a petition for rule to show cause against him for violation of the injunctive order.

At the hearing held on respondent’s petition on October 7 and 8, 1982, respondent testified that he had been in the horse business for 20 years and had never placed horses, jointly owned with petitioner, in a sale before. He further testified that in 1981, the cost of operation and expenses for the horse business totalled $216,583 with gross income of $90,320 resulting in a net operating loss of $126,263 and that the cost of operation and expenses for the horse business from January through August 1982 was $155,000 with a gross income for that period was $85,000.

His net income from his medical practice for 1981 was $193,915 and for the January through August 1982 period was $85,000.

He testified that it required expenditures of $15,000 to $16,000 per month to maintain the horse business and that as of October 8, 1982, he was unable to pay the $35,000 of outstanding debts. Although he had cashed a bearer bond and received the amount of $33,796.68 in July 1982 and paid some expenses incurred in the horse business with those funds, he had no specific recollection as to which bills were paid.

On cross-examination, he testified that he had no opinion as to the value of any of the 10 horses he intended to sell.

Petitioner testified on direct examination that she had been involved in the horse business for over 25 years. She was familiar with the buying and selling of horses and was knowledgeable as to the current market for horses. She placed a value of at least $320,000 for five of the broodmares entered in the October auction.

The trial court found (1) “the petition of Frances [s-ic] De Rosa is not a petition to dissolve or modify the injunction now in effect” and (2) “the sale of horses does not violate the injunction in effect; buying and selling of horses being inherent in the horse business and is in the ordinary and usual course of businesses.” The trial court then entered the order of October 8, 1982, granting respondent the right to sell certain of the parties’ horses with the proceeds to be deposited in a segregated account and respondent to “strictly account for all funds received from said sale and disbursed,” and denying petitioner’s motion for stay and petition for rule to show cause.

Petitioner filed her notice of interlocutory appeal and emergency motion for stay on October 8, 1982. Respondent’s motion to strike and dismiss the interlocutory appeal was taken with the case.

Opinion

We first consider whether this court has jurisdiction to hear this appeal. Petitioner contends that the October 8, 1982, order is appealable as a matter of right pursuant to Supreme Court Rule 307(a)(1) (87 Ill. 2d R. 307(a)(1)) because it was a modification of the previous injunction. We agree.

Supreme Court Rule 307 provides in pertinent part that: “An appeal may be taken to the Appellate Court from an interlocutory order of court: (1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction; ***” (87 Ill. 2d R. 307), and we note “that in determining what constitutes an injunction order subject to interlocutory review the courts [will] look to the substance rather than to the form [of the order].” Bohn Aluminum & Brass Co. v. Barker (1973), 55 Ill. 2d 177, 180, 303 N.E.2d 1, 3.

The threshold question, therefore, is whether the order of October 8, 1982, which contained language that the injunction was not dissolved or modified, in actuality had the opposite effect of modifying the injunction.

A similar issue was considered in People ex rel. Scott v. Silverstein (1981), 94 Ill. App. 3d 431, 418 N.E.2d 1087, where the court held that a preliminary injunction which prohibited the sale of “any assets” of a museum had been modified, by a subsequent order which permitted the sale of assets other than museum artifacts.

In the present case, the subsequent order allowing the sale of the parties’ horses was in essence a modification of the original preliminary injunction which had enjoined the sale of any assets except in the ordinary course of business. Accordingly, we find that a determination of the validity of the order of October 8, 1982, is within our jurisdiction.

We now turn to consider whether the trial court abused its discretion in modifying the injunctive order. It is clear that the trial court possesses a broad discretionary power in the grant or denial of a preliminary injunction and thus, the exercise of such discretion will not be disturbed by a court of review absent abuse. People ex rel. Bolton v. Progressive General Insurance Co. (1967), 84 Ill. App. 2d 109, 228 N.E.2d 146.

In the present case, petitioner strenuously argues that the contemplated sale of horses was not in the “normal and ordinary course of business” because respondent testified that he had never placed horses in a sale before. However, a review of the record indicates that the horse business was in fact operating at a loss in 1981 and 1982, and, further, that respondent was infusing funds derived from his medical practice to cover operating losses and to maintain the viable nature of the horse business.

Furthermore, while we are cognizant of the hostile nature of the litigation between the parties and of petitioner’s argument that such a sale would greatly diminish the marital estate and prejudice her rights therein, the October 8, 1982, order requires respondent to account strictly for any funds received from said sale and which would be deposited in a segregated account.

Thus, under the circumstances of the case, we cannot say that the trial court abused its discretion in modifying the injunctive order.

Accordingly, because of our resolution of this case, we need not reach the issue of the denial of petitioner’s rule to show cause.

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

Affirmed.

MEJDA and O’CONNOR, JJ., concur.