author: JUSTICE LORENZ JUSTICE SULLIVAN, JUSTICE LORENZ

text:
    SPIVACK, SHULMAN & GOLDMAN, Plaintiff and Counterdefendant-Appellee, v. FOREMOST LIQUOR STORE, INC., Defendant and Counterplaintiff-Appellant.
    First District (5th Division)
    No. 82—3064
    Opinion filed March 30, 1984.
    Supplemental opinion filed on denial of rehearing June 22, 1984.

      SULLIVAN, J., specially concurring.
    Allen H. Schultz, of Chicago (Schultz & Schultz, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Gary A. Grasso, and Joanna Cowan New, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Spivack, Shulman and Goldman, a law partnership (the Firm), as plaintiff, filed a complaint for attorney fees against defendant Foremost Liquors, Inc., an Illinois corporation (Foremost). Foremost filed a two count counterclaim against plaintiff alleging that it suffered great monetary loss as a result of plaintiff’s gross, wanton and negligent legal advice and plaintiff’s failure to exercise reasonable care and skill. Plaintiff’s motion for summary judgment as to count I was granted, and it is from that order that defendant appeals. The sole question for review is whether the trial court erred in granting plaintiff’s motion.

In count I of the amended counterclaim, which was filed on May 7, 1982, defendant alleged that it was the owner and operator of a chain of four retail alcoholic liquor stores, and agreed orally on May 1, 1975, to retain the Firm to perform legal services on its behalf, in consideration of a monthly fee of $500 and that this relationship continued to exist until August 31, 1980, when it was severed by Foremost.

It further asserted that Foremost’s lease for the store premises at 5236 West Touhy Avenue, Skokie, Illinois, was to expire on June 30, 1978, and the lessor, Jewel Companies, Inc. (Jewel), had implicitly advised Foremost that it would not renew the lease, as it intended to use the space for its own expansion purposes; that the Firm advised Foremost it need not vacate the premises on or before the expiration date; that the Firm further advised Foremost, contrary to Illinois law, that it could prevent Jewel from evicting Foremost in any forcible detainer proceedings by filing a counterclaim charging Jewel with violating the Illinois antitrust laws; and that in addition, the Firm guaranteed Foremost that, in the event it failed to enjoin Jewel, Foremost was certain to remain in the premises peacefully “for maybe a year, and for certain six months.”

Foremost also alleged that on July 6, 1978, Jewel filed a forcible detainer action in the circuit court of Cook County; that on August 16, 1978, the court ordered Foremost to vacate the premises within 30 days, and post a bond for $25,000 to guarantee compliance; and that in order to comply with the court order, it was necessary for Foremost to dismantle the store fixtures and place them in storage, as well as return its inventory, valued at $200,000 to the wholesalers at invoice cost. Further, Foremost alleged that the Firm knew or should have known that it could not enjoin Jewel from evicting Foremost by filing a counterclaim charging Jewel with violating antitrust laws, and that the Firm should not have guaranteed that Foremost could remain in the premises after the lease expired.

Finally, Foremost claimed that the Firm’s legal advice was grossly and wantonly negligent, and as a result of the Firm’s failure to exercise a reasonable degree of care and skill, Foremost has incurred huge monetary losses.

On August 31, 1982, the Firm filed a motion for summary judgment on the amended counterclaim with supporting memorandum and exhibits pursuant to section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005). In support of its motion, the Firm asserted that Foremost instituted a chancery action in June 1978, prior to the Jewel forcible detainer, requesting an injunction against Jewel’s enforcement of the June 30, 1978, lease expiration; that Gerald Robins, president of Foremost, verified to the court in this injunction matter that beginning as early as 1972, Jewel had on numerous occasions been in oral and written communication with Foremost or its counsel, concerning an extension of the lease beyond June 30, 1978, whereby Jewel indicated that they would extend the lease, but that their position suddenly changed as the expiration date drew near; that Foremost stipulated to the dismissal of this injunctive action in October 1978; and that Robins’ statements were an impeachment of Foremost’s malpractice claims since Foremost, some three years prior to its hiring the Firm, had begun to negotiate a lease extension, and had favorable responses to its requested extension.

The Firm also pointed out in its memorandum in support of its motion for summary judgment that the court denied Foremost’s motion to consolidate the Jewel forcible detainer action with the suit for injunctive relief; that the Firm filed three affirmative defenses (oral contract, restraint of trade and estoppel) to the Jewel forcible detainer petition along with the antitrust counterclaim; that the court struck Foremost’s antitrust counterclaim and the affirmative defenses of estoppel and restraint of trade on August 7, 1978; that a jury entered a verdict in favor of Jewel on August 23, 1978, in the forcible detainer action which included the disposition of the affirmative defense of the oral contract issue; and that the Firm filed post-trial motions and requests for stay of the forcible detainer judgment order, which were later denied.

Finally, the Firm’s memorandum avers that Gerald Robins, president of Foremost, acknowledged as early as September 15, 1977, in a letter to Oseo Drugs, that it would take a 30-month extension beyond June 30, 1978, to find an alternative site of business; and that Gerald Robins, in a letter to Oseo Drugs written on April 18, 1978, less than 90 days before the lease expired, stated Foremost would not be able to make the move by June, and needed “at least several months additional time to make our move.”

Thereafter, Foremost filed its memorandum in reply to the Firm’s memorandum, which was supported by an affidavit of Leonard J. Robins, the current president of Foremost Sales Promotions. Foremost’s memo postured that the gravamen of count I existed in the Firm’s grossly negligent professional advice that, if the Firm failed to prevent an eviction by Jewel, it guaranteed Foremost that it would be able to remain in the premises “for maybe a year and for certain six months” after the lease expired on June 30, 1978.

Robins’ affidavit recited inter alia, that on July 8, 1976, Jewel addressed a letter to Foremost advising, (1) that its lease was to expire on June 30, 1978, (2) that it will be obliged to vacate the premises on or before June 30, 1978, and that (3) Jewel intends to lease the premises to its affiliate, Oseo Drugs, Inc., effective July 1, 1978; that immediately upon receipt of Jewel’s letter, Foremost sent a copy to the Firm, and sought its advice regarding the possibility of negotiating with Jewel for a renewal of the lease; that although Robins and his son Gerald consulted with the Firm after July 8, 1976, it wasn’t until May 13, 1977, that the Firm first wrote Jewel about Foremost’s desire to remain on the premises after June 30, 1978; and that Jewel responded on May 16, 1977, informing the Firm it was adamant that Foremost vacate the premises on or before June 30, 1978.

In addition, the affidavit declared that the Firm proposed the following plan of defending any legal action Jewel might take to dispossess Foremost: (1) file a counterclaim against Jewel, also in the event that Jewel filed a forcible detainer action, to file an action to enjoin Jewel; (2) in the event that the Firm failed in its efforts to prevent Foremost’s eviction by Jewel, it would be able to remain in the premises peacefully after June 30, 1978, “for a period of one year, and for certain six months”; and (3) the Firm would receive a fee of $50,000 for this accomplishment.

The affiant further alleged that based on the “guarantee” by the Firm, Foremost planned a “lost our lease” sale from July 1, 1978, through December 31, 1978; that Foremost believed that such a sale would permit it to sell off its inventory of merchandise, which always averaged approximately $200,000 and to peacefully arrange to sell its fixtures at a profit of approximately $235,000; that subsequent to the court order to vacate the premises no later than September 30, 1978, Foremost had a “very minimal” sale which commenced on September 2, 1978, and terminated on September 10, 1978; and that the doors of Foremost were closed permanently on September 11, 1978.

Finally, Robins averred that letters from his son, Gerald Robins, to Jewel/Osco were initially drafted by the Firm, then given to Gerald Robins to be (1) transcribed on Foremost’s stationery, (2) signed by Robins, and (3) mailed to Jewel; and that since May 16, 1977, every act taken by Foremost, every word spoken by Foremost, every legal document filed and written by Foremost was directed and supervised by the Firm.

Arguments on the Firm’s motion for summary judgment were heard on November 18, 1982. First, the Firm argued that Foremost had knowledge of the lease’s expiration at least two years prior to June 30, 1978; that facts disclosed that Foremost had been involved with Jewel in negotiations to extend the lease for three years prior to Foremost’s retention of the Firm; and further that facts indicated that letters from Foremost to Jewel requested additional time on the lease that Jewel was unwilling to give.

As to the damages issue, the Firm asserted that Foremost’s having to return their inventory at cost, when they could have garnered a profit of $160,000 had there been a “lost our lease” sale, was too speculative in nature.

As to the liability issue, the Firm argued that there was no contention on the part of Foremost that neither the injunction or forcible detainer actions against Jewel were mishandled, and that the antitrust action against Jewel which Foremost says was contrary to Illinois law was not the only avenue pursued against the forcible detainer action. The Firm further argued that Foremost asserted a guarantee which was not sufficiently set forth in Robins’ affidavit, and that there was no allegation that the Firm told Foremost not to have a “lost our lease” sale prior to the June 30, 1978, expiration date. Finally, the Firm asserted that Foremost didn’t have the liquidation sale until September 1978, approximately three months after the lease’s actual expiration, when it then lasted only one week in duration.

Next, Foremost countered with the argument that Robins’ entire affidavit stood without contradiction as the Firm had not filed a counteraffidavit. Foremost admitted to the court that the Firm had attempted to file an antitrust counterclaim to Jewel’s forcible detainer action, but that it was denied leave to file the action. Foremost further argued that the Firm’s “guarantee” led it to schedule a “lost our lease” sale after the June 30, 1978, expiration date, as Robins was a “layman” following the advice of his lawyers.

In response, the court initially noted that Robins’ affidavit was probably insufficient, but viewed the alleged “guarantee,” assuming one could be sufficiently set forth, as words in the nature of an attorney advising his client as to what the results of the litigation would be. After making the observation that Foremost was aware that Jewel wanted the premises back as much as 13 to 14 months prior to the lease’s expiration, the court stated that it found it difficult to imagine an injury to Foremost, even with the alleged “guarantee.”

Finally, the trial court concluded that there was no real issue as to any material fact as well as no injury which had occurred, and entered an order granting summary judgment for the counterdefendant Firm on count I of the counterclaim, finding no just reason to deny enforcement or appeal. Count II of the counterclaim continues against the Firm. Counterplaintiff Foremost appeals from this order.

Opinion

Foremost contends that the summary judgment was improperly granted. It argues that the Firm’s “guarantee” that Foremost could be certain to remain peacefully in its leased premises “for maybe a year and for certain six months” after the expiration of its lease, in consideration of a legal fee of $50,000, was an act of negligence, as they contend that the Firm did not possess a legal basis for making such a guarantee.

The purpose of the summary judgment procedure is to determine whether any genuine issue of material fact exists and to summarily dispose of cases where none does exist so as to avoid congestion of trial calendars and the expense of unnecessary trials. (Loveland v. City of Lewistown (1980), 84 Ill. App. 3d 190, 405 N.E.2d 453.) The motion should be granted where the pleadings, exhibits, depositions and affidavits of record show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2—1005.) However, the record may also include memoranda. Doran v. Pullman Standard Car Manufacturing Co. (1977), 45 Ill. App. 3d 981, 360 N.E.2d 440.

In ruling on a motion for summary judgment, the trial court must construe pleadings, depositions and affidavits included therein most strictly against the movant and most liberally in favor of the nonmovant. (Blaylock v. Toledo, Peoria & Western R.R. Co. (1976), 43 Ill. App. 3d 35, 356 N.E.2d 639.) However, because summary judgment is a drastic remedy of disposing of litigation, it should be granted only when the right of the movant is clear and free from doubt. (Hillblom v. Ivancsits (1979), 76 Ill. App. 3d 306, 395 N.E.2d 119.) The defendant may at any time move for summary judgment in his favor for all or any part of relief sought against him. Kusiciel v. LaSalle National Bank (1982), 106 Ill. App. 3d 333, 435 N.E.2d 1217.

Foremost asserts a claim for legal malpractice in tort against the Firm in which it alleges that the Firm’s “guarantee” to Foremost that it would be certain to remain in its leased premises “for maybe a year, and for certain six months,” was gross and wantonly negligent advice. Foremost further contends that as a direct result of the Firm’s failure to exercise a reasonable degree of skill and care, it incurred huge monetary losses.

To maintain an action for legal malpractice in Illinois, Foremost must prove four elements to establish a prima facie case: that an attorney-client relationship existed between Foremost and the Firm; that the Firm deviated from the standard of care owed to Foremost; that this alleged departure from the applicable standard of care owed to Foremost constituted the actual and proximate cause of Foremost’s injury; and that as a result of this injury, Foremost suffered actual damages. See Oda v. Highway Insurance Co. (1963), 44 Ill. App. 2d 235, 194 N.E.2d 489; Olson v. North (1934), 276 Ill. App. 457.

It has been held in an action for negligence brought by the client against his attorney that there is no presumption that an attorney has been guilty of a want of care, arising merely from his failure to be successful in the undertaking. On the contrary, he is always entitled to the benefit of the rule that everyone is presumed to have discharged his duty, whether legal or moral, until the contrary is made to appear. Dorf v. Relles (7th Cir. 1966), 355 F.2d 488.

In a suit against an attorney for negligence, the burden is, therefore, on the plaintiff to allege and prove every fact essential to establish the defendant’s duty and a violation of it. (Priest v. Dodsworth (1908), 235 Ill. 613, 617, 85 N.E. 940.) A lawyer does not guarantee that his judgment is infallible. (Mecartney v. Wallace (1919), 214 Ill. App. 618, 624.) An attorney is not liable for an error of judgment. Morrison v. Burnett (1894), 56 Ill. App. 129, 135.

The law in Illinois is clear that an attorney is liable to his client for damages only when he fails to exercise a reasonable degree of care and skill, and the law distinguishes between negligence and mere errors of judgment. (Stevens v. Walker & Dexter (1870), 55 Ill. 151; Brainerd v. Kates (1979), 68 Ill. App. 3d 781, 386 N.E.2d 586; House v. Maddox (1977), 46 Ill. App. 3d 68, 360 N.E.2d 580.) The question of whether an attorney has exercised a reasonable degree of care and skill is one of fact, and in Illinois, the standard of care against which the attorney’s conduct will be measured must generally be established through expert testimony. Brainerd v. Kates (1979), 68 Ill. App. 3d 781, 386 N.E.2d 586; Brown v. Gitlin (1974), 19 Ill. App. 3d 1018, 313 N.E.2d 180.

In the case at bar, the trial court granted summary judgment finding that, even if words of guarantee were made, no genuine issue of material fact was present, as it viewed these words to be in the nature of an attorney telling his client what the results of the attorney’s actions would be. Further, the trial court found no injury to Foremost due to the fact that Foremost had knowledge of Jewel’s intention not to extend their lease more than one year prior to Foremost’s retention of the Firm.

It is our belief that the trial court erred in not considering what we perceive to be a major issue in this case — whether the advice of the Firm constituted a breach of the standard of care owed to Foremost by the Firm.

The issue as to whether this advice, given by the Firm in the form of a guarantee, represented the Firm’s exercise of a reasonable degree of care and skill cannot be decided by the trial court as a matter of law.

Although we realize that a motion for summary judgment can be brought by the Firm at any time, we are compelled to conclude that the trial court erred in granting the Firm’s motion for summary judgment in view of the entire record before us.

For the foregoing reasons, we reverse the judgment of the circuit court of Cook County and remand for further proceedings consistent with the views expressed herein.

Reversed and remanded.

MEJDA, RJ., concurs.

JUSTICE SULLIVAN,

specially concurring:

While I concur with the result reached in the opinion, it should be noted, for future reference, that no motion was made by defendant to test the sufficiency of plaintiff’s complaint by motions to strike or dismiss, and this should have been done before the motion for summary judgment was considered. See Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 406, where the court stated:

“When, and only when, a legally sufficient cause of action had been stated should the court have entertained the motions for summary judgment and considered the affidavits filed in support thereof.”

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE LORENZ

delivered the opinion of the court:

In its petition for rehearing, defendant Firm seeks clarification of our holding for the trial court on remand. The Firm contends that this opinion may be interpreted as authority for imposing liability upon attorneys for expressing their opinion as to the possible consequences of litigation. The Firm argues emphatically that “the results of litigated matters cannot be the subject of an attorney’s guarantee and the attorney’s failure to accomplish the desired result for his client does not constitute negligence.”

As we noted in our original opinion, in order to maintain an action for legal malpractice in Illinois, four elements must be established: (1) that an attorney-client relationship existed giving rise to a duty owed to the plaintiff by the defendant; (2) that defendant breached this duty; (3) that defendant’s breach constituted the actual and proximate cause of plaintiff’s injury; and (4) that as a result of this injury, plaintiff suffered actual damages. See Oda v. Highway Insurance Co. (1963), 44 Ill. App. 2d 235, 251, 194 N.E.2d 489; Olson v. North (1934), 276 Ill. App. 457, 475-77.

The Firm contends that our opinion characterizes the Firm’s conduct as the giving of advice, but that the allegations characterize the Firm’s conduct as expressing their opinion as to the possible consequences of litigation. We see little value in debating the conclusiveness of alternative characterization, as we believe that our decision precisely indicates that this is a question of fact to be determined in the trial court, not a matter of law to be determined by summary judgment.

Further, we take no issue with the Firm’s contention that an attorney is not liable for an error of judgment, as the law distinguishes between negligence and mere errors of judgment, the latter not constituting a basis for malpractice. See Stevens v. Walker & Dexter (1870), 55 Ill. 151; Brainerd v. Kates (1979), 68 Ill. App. 3d 781, 785, 386 N.E.2d 586; House v. Maddox (1977), 46 Ill. App. 3d 68, 71, 360 N.E.2d 580.

Although we agree with the Firm that an attorney is not liable as a guarantor of litigation, an attorney may be liable in negligence for the making of a guarantee, if it can be shown that it was in fact made and the making of the guarantee was a breach of the standard of care owed to the plaintiff by the Firm. If an attorney tells his client that he will accomplish a certain result, we believe that the attorney’s duty to his client requires that he exercise that degree of skill and care .used in the community to reach such a conclusion. This degree of skill and care is a question of fact to be measured through expert testimony, and usually cannot be determined by the trial court as a matter of law. See Brainerd v. Kates (1979), 68 Ill. App. 3d 781, 386 N.E.2d 586; Brown v. Gitlin (1974), 19 Ill. App. 3d 1018, 313 N.E.2d 180; Olson v. North (1934), 276 Ill. App. 457, 476.

Here, the trial court granted summary judgment finding that, even if words of guarantee were made, no genuine issue of material fact was present, as it viewed these words to be in the nature of an attorney telling his client what the results of the attorney’s actions would be.

While we express no opinion whatsoever concerning whether the Firm breached a duty owed to plaintiff, or whether such breach proximately injured plaintiffs, we find that the trial court erred in granting summary judgment where questions of fact, which could amount to a cause of action in negligence, remain unresolved.

Remaining questions of fact include:

1. Whether the Firm gave a guarantee of the outcome of litigation;

2. Whether a similarly situated attorney in the exercise of reasonable skill and care would have given such a guarantee;

3. Whether plaintiff was injured as a proximate consequence of the giving of such a guarantee.

Finally, the Firm uses the example of a defense attorney advising a client that a case has a verdict potential of $100,000-$150,000. The Firm contends that under our decision, if the verdict exceeded $150,000, defense counsel would be subject to a possible lawsuit. We find no merit with this application of our decision, as we have clearly stated that the fact that the attorney misjudged the result does not give rise to a cause of action. It is only if the attorney breached the applicable standard of care, and the breach proximately injured plaintiff, that the attorney would be liable. We believe that attorneys owe no less to their clients.

For the foregoing reasons defendant’s petition for reconsideration or rehearing is denied.

MEJDA, P.J., and SULLIVAN, J., concur.

      The law firm of Spivack, Shulman & Goldman is the successor to the firms of Spivack & Lasky, Spivack, Drobny & Nathan and Spivack & Drobny.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    PAUL LAMB, Ex’r of the Estate of Bessie J. Lamb, et al., Plaintiffs-Appellees, v. ORA ODELL LAMB et al., Defendants-Appellants.
    Fourth District
    No. 4—83—0421
    Opinion filed June 5, 1984.
    Rehearing denied July 2, 1984.

      Phillip Lamkin, of Lamkin & Lamkin, P.C., of Clinton, for appellants.
    Lawrence E. Johnson and John D. McFetridge, both of Lawrence E. Johnson & Associates, of Champaign, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

This case concerns a suit to set aside a deed made, without consideration, by Bessie J. Lamb, conveying a 182-acre family farm to her son, defendant, Ora Odell Lamb (Odell). The deed reserved a life estate to Bessie. The trial court set aside the conveyance. The principal legal questions involved are (1) whether Bessie’s executor could claim the attorney-client privilege to prevent the introduction of testimony of Bessie’s attorney as to his conversations with her during the transaction in question, and (2) the application of the rule of Thayer’s “bursting bubble” theory of presumptions to the long-standing rule that a conveyance to the conveyor’s fiduciary is presumptively invalid. (Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 448 N.E.2d 872.) We hold that the court erred in permitting the claim of the privilege and reverse the judgment and remand for reconsideration. On remand the trial court should consider the Thayer theory as set forth in Franciscan Sisters.

The deed was executed on August 17, 1966, when Bessie was 72 years old. On September 26, 1979, when Bessie was 85 years old, she filed a four-count complaint against Odell and his "wife, Patricia Lamb (Patricia), in the circuit court of DeWitt County to set aside the deed. She died on August 5, 1980, and on November 18, 1980, her son Paul Lamb (Paul), who had been appointed her executor, was substituted, in his representative capacity, as plaintiff. On April 24, 1981, the executor filed an additional count to the then amended complaint alleging that the conveyance had been obtained in breach of the fiduciary duty owed by Odell to Bessie. By June 8, 1982, 11 of Bessie’s 12 children, including Paul, had joined as plaintiffs in their capacity as devisees.

The case was tried at a bench trial lasting four days. Later, on January 17, 1983, the court entered a judgment (1) rescinding the conveyance, (2) ordering Odell and Patricia to convey the premises to the executor, and (3) directing an accounting. The judgment was based on count V which alleged a breach of a fiduciary relationship. Odell and Patricia have appealed, asserting that the judgment was contrary to the manifest weight of the evidence and that the court erred in (1) permitting exercise of the attorney-client privilege, (2) permitting evidence of transactions by Bessie several years after the conveyance, (3) permitting plaintiffs to violate their discovery obligations, and (4) refusing defendants an opportunity to present newly discovered evidence at the hearing on the petition for rehearing.

A recitation of the testimony is necessary to explain our ruling. Many of the basic facts are undisputed. Prior to the death of Bessie’s husband, Jerry M. Lamb, the father of all the Lamb children, in September 1965, the farmland was owned by Jerry and Bessie as joint tenants with right of survivorship. It then became Bessie’s property outright. Prior to Jerry’s death, Odell had been farming the land on a part-time basis, living with Patricia in a house he had built on the land. The parents lived in the farm house and had conveyed to Odell a mortgage against the premises in the amount he had expended to build the house in which Odell and Patricia lived.

Upon the father’s death, the family met and decided that the oldest child, Carl, should assume the leadership in managing the family affairs. Carl went to the farm to take an inventory. Upon Carl’s arrival, Odell told Carl to “get the hell out of [there]” because Odell had farmed the property prior to the father’s death and maintained he should “still operate it.” When Bessie was told of this, she responded that maybe the problem could be resolved. However, the record does not indicate that Bessie did anything to limit the control that Odell had assumed. By the time of the conveyance, Bessie was 72 years old. She had only a sixth grade education.

The evidence indicated that, prior to her husband’s death, Bessie had not handled business concerning the farm. Although various plaintiffs testified that after her husband’s death Bessie relied on Odell to help her transact farm business, those plaintiffs were unable to give specific instances of such reliance. However, an employee at the bank where Bessie did business testified that by early 1966 Odell was permitted to write checks on Bessie’s account.

In early August 1966, Bessie had several conferences with her lawyer in his office. On August 17, 1966, Odell drove Bessie to that office but did not stay with her there. During a lengthy conference with that lawyer, Bessie executed a will and the deed in question. The only other person present during the conference was the lawyer’s wife, who had the power of a notary public.

Between 1971 and 1974 a portion of the farm was sold to the Illinois Power Company for $39,000. Bessie, Odell and Patricia were apparently required to join in the deed. Bessie was permitted by Odell and Patricia to keep 50% of the net proceeds of the sale, although based on an actuarial valuation of her life estate interest she would have been entitled only to approximately 33% of the proceeds. The deed in question was recorded at the time of the sale to Illinois Power Company, but apparently no one in the Lamb family, other than the parties to that transaction, knew of the deed until 1979. Thereafter Bessie made the will, later admitted to probate, which left her property to her children in equal shares.

In Kolze v. Fordtran (1952), 412 Ill. 461, 107 N.E.2d 686, the court determined that a fiduciary relationship exists when there is a special confidence reposed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one reposing the confidence. The factors to be considered in determining whether a fiduciary relationship exists include the degree of kinship, disparity of age, health and mental condition, and the extent to which the allegedly servient party entrusted the handling of his business and financial affairs to and reposed faith and confidence in the dominant party. (Desiderato v. Sullivan (1980), 84 Ill. App. 3d 1117, 406 N.E.2d 116.) In Kolze, the court stated:

“Where the relationship does not exist as a matter of law or is sought to be established by parol evidence, the proof must be clear, convincing, and so strong, unequivocal, and unmistakable as to lead to but one conclusion. [Citations.] The burden of proving facts from which a fiduciary relationship would arise is on the one who attempts to set aside a conveyance.” Kolze v. Fordtran (1952), 412 Ill. 461, 468, 107 N.E.2d 686, 690.

Bessie apparently did nothing when Odell refused to cooperate with Carl shortly after Jerry Lamb’s death, thus indicating she was relying on Odell to make decisions concerning her principal asset, the farm. Odell had taken firm control of that property. The fact that Bessie spent much time visiting other members of her family in the first few years after her husband’s death did not negate the trust and confidence she was placing in Odell. The evidence supported a determination by the trial court that a fiduciary relationship had been proved by clear and convincing evidence.

Citing Desiderato v. Sullivan (1980), 84 Ill. App. 3d 1117, 406 N.E.2d 116, defendants contend that in order to properly raise the presumption of invalidity of a conveyance one must not only prove the existence of a fiduciary relationship, but must also show that the relationship existed with reference to the transaction in dispute. Even if that were so, the relationship here between Bessie and Odell principally involved the farm which was the subject matter of the conveyance and Odell had aided Bessie in conferring with the lawyer who advised Bessie with reference to the transaction and who drafted the deed. In any event, we deem that evidence that the fiduciary did not participate in the transaction under scrutiny is more properly considered in rebutting the presumption of undue influence rather than in considering the question of the existence of the presumption. The lack of participation by the fiduciary would tend to show that the subservient party acted voluntarily and free from undue influence.

The following language of the supreme court is applicable to this case:

“The fact that a deed was made between parties standing in a fiduciary relation does not necessarily require that the transaction be set aside. [Citations.] Where a confidential relation exists and the dominant party is the grantee of a deed executed during the existence of the relationship, the conveyance between the parties is presumptively fraudulent, and the burden rests upon the grantee to show the fairness of the transaction and that it was equitable and just and did not proceed from undue influence. *** There is no rule of law, however, prohibiting a grantor from making a gift to one standing in a fiduciary relation to him, provided the gift is voluntary and not the result of undue influence.” Stone v. Stone (1950), 407 Ill. 66, 79, 94 N.E.2d 855, 862.

The evidence which was excluded because the trial court permitted the executor to exercise the attorney-client privilege bore on the question of whether the presumption of invalidity was rebutted. We now turn to the propriety of that ruling. The defense called the attorney, who represented Bessie during the transaction in which the deed was executed. Because of the executor’s claim of the privilege, the court refused to allow the attorney to relate his conversation with Bessie at the meeting concerning the transaction, but permitted him to describe what happened. The attorney then related that: (1) He and Bessie had a meeting lasting 1 hour and 45 minutes on August 10, 1966, at which time Bessie appeared to be competent and to understand what he had explained to her; (2) on August 11, 1966, she contacted him about a matter they had discussed; (3) during an August 17, 1966, conference with Bessie which lasted from 1:45 to 3 p.m. she executed the deed in question and a will both of which he had prepared at her request; and (4) that will recognized the existence of the deed, devised the farm to Odell, and divided the remainder of her estate equally between her 12 children.

Defense counsel then elicited the following testimony from the attorney pursuant to an offer of proof. Shortly after the death of Jerry Lamb, Bessie came to the attorney’s office and told him that she wanted to “deed the farm” to Odell. He told her that she should carefully consider such a transfer because of the effect it would have on her other 11 children. During an August 10, 1966, conference, Bessie told him that she wanted to deed the farm to Odell and that because she was going to visit her sister in Kentucky she wanted the matter “taken care of right away.” Again, he advised her to consider the effect of such a transfer. He also explained to her the various ways in which she could transfer the real estate to Odell. On August 11, 1966, she called him and asked him if Patricia’s name should be included in the deed. She contacted him again on August 13, 1966, and asked him if the mortgage was not paid in full during her lifetime whether Odell would have to pay off the mortgage. During the August 17, 1966, meeting the attorney explained the provisions of the deed in detail and she responded that she wanted to “give the farm to Odell.” At the conclusion of the meeting in which Bessie executed the documents, Bessie gave the deed to Odell, but stated that she did not want it recorded because “she did not want the rest of the family to find out about it.”

Obviously, the foregoing testimony, if admitted, would have had a significant bearing upon whether Bessie’s gift to Odell and Patricia was “voluntary and not the result of undue influence.” Plaintiffs contend that certain statements contained in the trial court’s memorandum explaining the decision indicate that the court considered this offered, but excluded, evidence. However, in a memorandum filed by the court upon denying defendants’ motion to reconsider the court stated that evidence excluded was not considered. Thus, it is important for us to determine whether this evidence should have been admitted.

During her lifetime Bessie could have asserted a privilege against revelation of the foregoing conversation she had with her attorney. (People v. Adam (1972), 51 Ill. 2d 46, 280 N.E.2d 205.) We deem the following to express the rule concerning the privilege after the death of the client:

“While upon the death of the client, the [attorney-client] privilege survives in favor of his estate in regard to claims by outsiders against the estate [citation], it does not apply to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction. *** While it had been suggested that the attorney may not disclose facts which would tend to invalidate the will [citation], and that he may not disclose confidential communications [citation], the actual holding of the cases which pass upon the point has been that neither side may assert the privilege.” (Emphasis added.) Cleary & Graham, Handbook of Illinois Evidence sec. 505.7, at 212-13 (3d ed. 1979). See also McCormick, Evidence sec. 94, at 197-99 (2d ed. 1972).

In Wilkinson v. Service (1911), 249 Ill. 146, 94 N.E. 50, the court determined that while conversations between an attorney and client might be privileged when offered in support of a claim against the client’s estate, the conversations would be admissible in a contest between the heirs and next of kin of the testator. In Champion v. McCarthy (1907), 228 Ill. 87, 81 N.E. 808, the court stated:

“Where the transaction between the attorney and client is the preparation of a deed or a contract in accordance with the directions of a client, and no legal advice is asked or required, the reasons or motives moving the client to make the deed or contract, if stated to the attorney, are not privileged. [Citations.] *** [Wigmore] announces the rule to be, that the fact of the execution of a will, and its contents, are within the rule during the life of the testator, but the rule ceases at his death, and the attorney may then disclose all that affects the execution and tenor of the will.” 228 Ill. 87, 98-99, 81 N.E. 808, 812.

The parties here (1) were all devisees of Bessie, the decedent who had the privilege, and (2) claimed through her either by inter vivos transaction (Odell) or by testate or intestate succession (all of the plaintiffs). We conclude that the attorney-client privilege was not applicable to the situation in this case and, therefore, the attorney’s testimony as to his conversations with Bessie should have been admitted.

In addition to the error in allowing the privilege, there is another factor which, through no fault of the court or counsel, enters into our decision to reverse. After the court had entered the judgment appealed here, the supreme court decided Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 448 N.E.2d 872. There, the court decided that Thayer’s “bursting bubble” rule in regard to presumptions in civil cases was applicable to all such presumptions including that which arises from a transaction with a fiduciary.

Thus, when sufficient evidence is presented to rebut the presumption, it vanishes and the party seeking to set aside the transaction has the burden of persuading the trier of fact that the transaction sought to be set aside was brought about by fraud or undue influence. The Franciscan Sisters court stated that to rebut the presumption arising from a fiduciary relationship with a lawyer the evidence produced by the fiduciary in rebuttal must be clear and convincing. The opinion implied that the same standard was applicable where, as here, the alleged fiduciary was not a lawyer. The opinion indicated that in determining the sufficiency of the rebuttal evidence, the focus is on the evidence produced by the fiduciary rather than on the evidence as a whole. The court also indicated that even if the presumption is rebutted, the trier of fact may, nevertheless, consider the fiduciary relationship as a circumstance out of which an inference of undue influence or fraud may arise.

The trial court, obviously, did not apply the Franciscan Sisters analysis in this case. Considering that substantial evidence, bearing on the propriety of the transaction, was rejected because of the misapplication of the attorney-client privilege and that a new and slightly different method of analyzing the evidence is now prescribed, we deem that the trial court should reconsider its decision.

We dispose of the other claims of error summarily. Considerable evidence was introduced by plaintiffs showing transactions involving Bessie several years after the conveyance when she was older, less competent, and more under Odell’s influence. This testimony had little probative value as to the propriety of the conveyance and would have been prejudicial at a jury trial. Here, it may have been material to some extent on the accounting issue, and we find no prejudice to have resulted. As in Franciscan Sisters our mandate will authorize the trial court to hear additional testimony. The evidence claimed by defendants to be newly discovered can be presented then. Similarly, plaintiffs’ allegedly tardy compliance with discovery orders which may have prevented defendants from fully presenting their case can be remedied by the presentation of further evidence.

Accordingly, we reverse the order from which appeal is taken and remand the case to the circuit court of DeWitt County for further consideration. The trial judge should consider the evidence contained in the offer of proof concerning Bessie’s conversations with her attorney. The judge should also receive and consider any new evidence offered by the parties that has substantial merit.

Reversed and remanded with directions.

TRAPP and WEBBER, JJ., concur.


author: JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ERIN MURPHY, Defendant-Appellee.
    Third District
    No. 3-83-0672
    Opinion filed May 31, 1984.

      Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Bruce A. Heidecke, of Wheaton, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Erin B. Murphy, was indicted for the offense of reckless homicide as a result of an automobile accident which occurred in Will County on February 4, 1983. Prior to her scheduled trial, defendant filed a motion in limine to prevent the admission of the results of a blood-alcohol test performed upon her while she was a patient at Edward Hospital for injuries she had sustained in the automobile accident.

Following a hearing, the circuit court of Will County granted defendant’s motion in limine and suppressed the blood-alcohol results. The People have appealed contending that the court erred in applying the requirements of section 11 — 501.2 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501.2) to a reckless homicide proceeding. Alternatively, the People argue that even if the circuit court was correct in initially applying the foregoing statute to a reckless homicide case, the statute was nevertheless inapplicable in the final analysis because the chemical analysis of the defendant’s blood was not made at the request of the police.

At the hearing on the defendant’s motion in limine it was stipulated by the parties that the facts of the occurrence involved a one-car accident in which the defendant’s vehicle left the roadway and struck a guard rail. The collision resulted in the death of a passenger in the defendant’s motor vehicle.

It was further stipulated that the defendant was removed from the scene by ambulance and attended by paramedics en route to Edward Hospital in Naperville, Illinois, for treatment of her injuries. While in the emergency room, an attending physician ordered a blood sample be taken from the defendant for medical reasons. The blood sample was taken by a medical technologist.

It was finally stipulated that although the Edward Hospital laboratory was licensed by the Illinois Department of Public Health to conduct blood tests for its own medical purposes, neither the laboratory nor any of its technicians were certified to conduct blood-alcohol tests pursuant to the requirements of section 11 — 501.2, and the rules promulgated thereunder by the Illinois Department of Public Health, specifically sections 12.01 through 12.04 of the Standards & Procedures for Testing for Alcohol and/or Other Drugs by Breath, Blood & Urine Analysis, which was effective throughout Illinois as of January 1,1982.

The People’s brief contains a detailed description of the qualifications of the laboratory, the technician in question and the method she used to extract and test the defendant’s blood sample. The trial court believed that despite the fact that the laboratory in question, as well as the individual technician involved in the removal and testing of the defendant’s blood sample, were well qualified to do so for their own purposes, since neither possessed the certification required by the statute, it had no choice but to grant defendant’s motion in limine.

In addition to the foregoing stipulations of fact, it would further appear that both sides acknowledge that the prior statute and case law interpreting it would support the decision of the trial court here, i.e., that section 11 — 501 et seq., commonly referred to as the DWI statute, also governed the admissibility of blood tests in reckless homicide prosecutions as well. See People v. Leffew (1975), 33 Ill. App. 3d 700, 338 N.E.2d 480; People v. Weissinger (1980), 90 Ill. App. 3d 700, 413 N.E.2d 497; People v. Todd (1975), 59 Ill. 2d 534, 322 N.E.2d 447; and People v. Palmer (1983), 114 Ill. App. 3d 454, 448 N.E.2d 1005.

The issue presented for review here is whether the new statutory amendments to section 11 — 501 et seq. change the law to the extent that its provisions no longer apply to reckless homicide prosecutions. The People contend the amendments indicate a legislative intent to abandon the former all-encompassing language of the statute which was relied upon by the various courts of this State to conclude that reckless homicide prosecutions were governed by the same rules of evidence as DWI prosecutions with respect to the admissibility of blood tests. The defendant argues that the amendments do not change the applicability of the law to reckless homicide cases, but only clarify the fact that the new legislation applies to both civil and criminal cases and that evidence of a refusal to submit to a request for a blood-alcohol test is now admissible in both civil and criminal actions.

A comparison of the statutory language of the former enactment and the present amendment reveals the following:

“Sec. 11 — 501. Persons under the influence of intoxicating liquor or narcotic drugs.
(a) No person who is under the influence of intoxicating liquor may drive or be in actual physical control of any vehicle within this State.
* * *
(c) Upon the trial of any action or proceeding arising out of the acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of intoxicating liquor, evidence of the amount of alcohol in the person’s blood at the time of the act alleged as shown by a chemical analysis of his breath, blood, urine, saliva or other bodily substance is admissible, as provided hereinafter in this paragraph (c) and the result of any such analysis shall give rise to the following presumptions: ***.’’ (Emphasis added.) Ill. Rev. Stat. 1979, ch. 951/2, par. 11 — 501.

The present amendment, which is applicable to the case at bar, provides as follows:

“Sec. 11 — 501. Driving while under the influence of alcohol, other drug, or combination thereof.
(a) A person shall not drive or be in actual physical control of any vehicle within this State while:
1. The alcohol concentration in such person’s blood or breath is 0.10 or more based on the definition of blood and breath units in Section 11 — 501.2;
2. Under the influence of alcohol;
3. Under the influence of any other drug or combination of drugs to a degree which renders such person incapable of safely driving; or
4. Under the combined influence of alcohol and any other drug or drugs to a degree which renders such person incapable of safely driving.
(b) The fact that any person charged with violating this Section is or has been legally entitled to use alcohol, or other drugs, or any combination of both, shall not constitute a defense against any charge of violating this Section.
(c) Every person convicted of violating this Section or a similar provision of a local ordinance, shall be guilty of a Class A misdemeanor.
The Secretary of State shall revoke the driving privileges of any person convicted under this Section or a similar provision of a local ordinance.” Ill. Rev. Stat. 1981, ch. 951/2, par. 11-501.

The People contend the deletion by the legislature of the language “upon the trial of any action or proceeding” from the new statute indicates that it intended to limit the application of the procedural requirements of the DWI and implied consent statutes strictly to the charges of DWI.

The defendant responds by pointing out that the legislature did not in fact abandon the emphasized language of the former statute because even the new amendments provide:

“(a) Upon the trial of any civil or criminal action or proceeding arising out of an arrest for an offense as defined in Section 11 — 501 or a similar local ordinance, evidence of the concentration of alcohol, other drug or combination thereof in a person’s blood or breath at the time alleged, as determined by analysis of the person’s blood, urine, breath or other bodily substance, shall be admissible. Where such test is made the following provisions shall apply: ***.
* * *
(c) If a person under arrest refuses to submit to a chemical test under the provisions of Section 11 — 501.1, evidence of refusal shall be admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person under the influence of alcohol, or other drugs, or combination of both was driving or in actual physical control of a motor vehicle.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 951/2, par. 11-501.2.

The People reply that assuming arguendo that section 11 — 501.2 applies to reckless homicide prosecutions, the trial court nevertheless erred in granting the defendant’s motion in limine because section 11 — 501.2 is inapplicable where the chemical analysis of blood was not made at the request of the police. People v. Pezzette (1983), 112 Ill. App. 3d 124, 444 N.E.2d 1386.

In Pezzette, the defendant was charged with DWI following an automobile accident. The police requested that the defendant submit to a blood test but she refused. Later the defendant requested for her own benefit that a blood test be taken. The results of the test were later communicated to the police and the trial court suppressed the evidence on the basis that the hospital and staff in question lacked the proper certification under section 11 — 501(d) to permit the admissibility of the test results. The appellate court reversed, holding that section 11 — 501(d) was not controlling because the facts of the case did not involve a situation where a blood test was taken pursuant to the request of a police officer.

Whatever application the holding in Pezzette may have had to the disposition of this case has been, in our opinion, eroded by the later decision of People v. Palmer (1983), 114 Ill. App. 3d 454, 448 N.E.2d 1005.

Palmer involved a medically ordered blood test taken in an emergency room for treatment purposes. The sample was tested in a laboratory and by a technician who did not possess the required certification mandated by the statute.

The court in Palmer rejected the State’s argument that the statute’s requirements as to certification could be ignored if the request for the blood test had been initiated by the defendant’s doctor instead of the police.

We believe that the State’s argument that the new amendments to the DWI statute create an easier path for the admissibility of blood tests in reckless homicide cases than the lesser offense of DWI offenses is without merit. Accordingly, we conclude that the trial court’s granting the defendant’s motion in limine was not only proper, but necessary if the statute applies equally to reckless homicide and DWI offenses alike, which we believe it does.

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

Affirmed.

STOUDER and BARRY, JJ., concur.


author: JUSTICE HEIPLE

text:
    HUMAN RIGHTS AUTHORITY OF THE STATE OF ILLINOIS GUARDIANSHIP AND ADVOCACY COMMISSION, Petitioner-Appellant, v. GEORGE MILLER, Superintendent, Galesburg School District 205, Respondent-Appellee.
    Third District
    No. 3—83—0517
    Opinion filed May 31, 1984.

      Roger B. Derstine, of Guardianship and Advocacy Commission, of Chicago, Jeff M. Plesko, of Guardianship and Advocacy Commission, of Carbon-dale, and Albert Purham, Jr., of Guardianship and Advocacy Commission, of Peoria, for appellant.
    Thomas G. West, of West, Neagle & Williamson, of Galesburg, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Knox County denying enforcement of a subpoena issued by the Human Rights Authority of the Illinois Guardianship and Advocacy Commission (hereinafter petitioner). The petitioner is an executive agency established by the Guardianship and Advocacy Act to investigate complaints concerning violations of the rights of handicapped persons. Ill. Rev. Stat. 1981, ch. 911/2, par. 701 et seq.

Acting on a complaint which alleged that the Galesburg School District was not providing occupational and physical therapy for its students, the petitioner started an investigation and asked the district superintendent (the respondent) to produce the students’ educational program records. The records were to be masked so as to delete any information by which a student could be individually identified.

When the respondent failed to turn over the information, the petitioner issued a subpoena for the masked records. (Ill. Rev. Stat. 1981, ch. 911/2, par. 720.) Again, the respondent refused to comply. The petitioner next sought judicial enforcement of the subpoena.

The circuit court ruled that the petitioner had no right to examine the records because it did not satisfy the access requirements of section 6 of the Illinois School Student Records Act. (Ill. Rev. Stat. 1981, ch. 122, par. 50 — 6.) The petitioner appeals.

Along with the access provisions of the records act, the respondent makes two additional arguments in support of the court’s ruling: (1) the petitioner has no authority to investigate or review special education programs and; (2) the petitioner’s right to investigate does not apply to all of the handicapped students in a school district but is limited to individual cases. We disagree with both contentions.

The thrust of the respondent’s first argument is that the petitioner is somehow usurping the role of the State Board of Education by investigating the special education program of the Galesburg School District. According to the respondent, the petitioner’s inquiry is tantamount to the control and direction of special education which makes local school authorities accountable to the petitioner rather than the State Board of Education as required by the School Code. The respondent urges us to limit the petitioner’s role to that of an ad-visor which must comply with the internal review and hearing procedures set forth in the School Code.

The independent investigatory authority of the petitioner is limited and narrowly defined by the Guardianship and Advocacy Act. (Ill. Rev. Stat. 1981, ch. 911/2, par. 701 et seq.) The petitioner is empowered to conduct investigations, make recommendations to the agency under investigation, and require them to furnish information and respond to the petitioner’s investigative report. Ill. Rev. Stat. 1981, ch. 911/2, pars. 715, 716, 718, 720, 723.

The petitioner has no authority whatsoever to enforce its recommendations or institute measures to remedy rights violations. The petitioner cannot control or direct a school district’s special education program, nor can the petitioner exercise any of the functions reserved to the State Board of Education.

The Guardianship and Advocacy Act was enacted to safeguard the rights of disabled persons. (Ill. Rev. Stat. 1981, ch. 911/2, par. 701 et seq.) In order to carry out this function, the legislature has given the petitioner the authority to conduct independent investigations. Such a grant of authority is inconsistent with any suggestion that the petitioner must conduct itself according to the rules of the agency under investigation. We will not interfere with the intent of the legislature by subordinating the petitioner’s statutory authority to that of the State Board of Education.

In reply to the respondent’s second argument, we find that the petitioner’s authority extends to complaints involving individuals as well as a group of handicapped students. The fact that section 715 of the Guardianship and Advocacy Act speaks of the rights of an eligible person in the singular does not negate a plural construction. Ill. Rev. Stat. 1981, ch. 1, par. 1004.

Furthermore, the petitioner is acting on the basis of a complaint regarding a specific group of handicapped students who are defined as eligible persons by the Guardianship and Advocacy Act. (Ill. Rev. Stat. 1981, ch. 911/2, par. 702(g).) The petitioner’s investigation of the district’s special education program is limited to the issue of whether the complainants are receiving the services recommended by the district. This is not a sweeping and nonspecific evaluation of the program in general as the respondent contends. We find that the petitioner’s inquiry is -within the bounds of its statutory authority.

The final issue is whether the circuit court was correct in ruling that the petitioner is subject to the access limitations of section 6 of the Illinois School Student Records Act (Ill. Rev. Stat. 1981, ch. 122, par. 50 — 6). The petitioner is authorized to inspect and copy any relevant materials in the possession of a State agency under investigation. However, the petitioner may not inspect materials containing personally identifiable data if the data cannot be removed without placing an unreasonable burden on the agency. (Ill. Rev. Stat. 1981, ch. 911/2, par. 718.) For this reason, the petitioner’s subpoena directed that the specified records be masked so as to cover up any information by which a student could be identified.

The access provisions of the Illinois School Student Records Act apply only to school student records. These are defined as any writing or other recorded information by which a student may be individually identified. (Ill. Rev. Stat. 1981, ch. 122, par. 50 — 2(d).) A masked record does not fall within this definition. Since the respondent does not contend that the masking process would constitute an unreasonable burden, the Illinois School Student Records Act does not apply to the subpoenaed material.

In reaching this conclusion, we are guided by the case of Mattie T. v. Johnston (N.D. Miss. 1976), 74 F.R.D. 498, which involved the Family Education and Privacy Act of 1974 (20 U.S.C. sec. 1232g (1976)). In Mattie T., the plaintiffs had subpoenaed masked records concerning handicapped students. Like the Illinois School Student Records Act, the Federal act affects only records containing personally identifiable information. The Federal district court enforced the subpoena holding that the Federal act did not apply to the production of masked records.

For these reasons, we find that the Illinois School Student Records Act does not bar enforcement of the petitioner’s subpoena. The judgment of the circuit court of Knox County is reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded with directions.

BARRY and STOUDER, JJ., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    ALLIED AMERICAN INSURANCE COMPANY, as subrogee of James Jarrett, Plaintiff-Appellee, v. ADAM MICKIEWICZ, Defendant-Appellant.
    First District (1st Division)
    No. 83—1296
    Opinion filed May 29, 1984.

      Edward R. Burr, of Chicago, for appellant. •
    George J. Guest, of Chicago (Thomas E Patrasso, of counsel), for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff insurer, Allied American Insurance Company (Allied), brought this action as subrogee of its insured to recover funds paid under the uninsured motorist provisions of an automobile insurance policy. Allied filed its complaint on March 11, 1982, alleging that defendant, Adam Mickiewicz, had negligently operated his automobile which proximately resulted in injury and death to its insured. Plaintiff further alleged that by virtue of a policy of insurance in force at the time, it was thereby compelled to pay over $9,000 in claims to the estate and heirs of the insured. Allied, as subrogee, sought reimbursement from defendant for the funds so paid.

A summons was placed with the sheriff of Cook County with directions to attempt service on the defendant at 4622 South Mozart in Chicago, Illinois. On April 4, 1982, the initial summons was returned “not found,” “wrong address.” An alias summons was issued on July 16, 1982, for service at the same address but was again returned “not found.” The sheriff’s return indicated that defendant had moved and left no forwarding address.

Plaintiff then sought to serve defendant by delivering a summons to the Illinois Secretary of State pursuant to the provisions of section 10 — 301 of the Illinois Vehicle Code for service of process on nonresident motorists. (Ill. Rev. Stat. 1981, ch. 951/2, par. 10 — 301.) Another alias summons issued on November 3, 1982, with instructions to serve the Secretary of State and was certified by that office as having been accepted on November 16, 1982. On December 17, 1982, plaintiff’s attorney filed a preprinted form affidavit wherein he swore “on information and belief the defendant is a non-resident of the State of Illinois or was a resident of this State and subsequently became a non-resident of this State.” Along with this affidavit, plaintiff’s attorney filed a copy of the alias summons served upon the Secretary of State. On February 8, 1983, an ex parte judgment was entered against defendant for $9,000 plus costs.

Thereafter, on April 12, 1983, pursuant to the provisions of section 2 — 301 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 301), defendant filed a special appearance contesting jurisdiction over his person and moved to quash service of summons and vacate judgment. In support of his motion, defendant submitted an affidavit wherein he stated:

“1. At all times mentioned in the Complaint filed herein and continuously thereafter to the present time, your affiant has been and is an actual resident of the State of Illinois.
2. At no time since the date of the occurrence alleged in said Complaint has your affiant moved from the State of Illinois, and, further, affiant has remained an actual resident of the State of Illinois.”

Plaintiff never moved to strike defendant’s affidavit, nor did it proffer any counteraffidavit.

On April 22, 1983, after hearing the arguments of counsel, the trial court entered an order denying defendant’s motion. The court stated that

“[djefendant’s affidavit, which states that he was and is a resident of the State of Illinois at all applicable time [sic], is a conclusion and insufficient to raise the issue of residency.”

Defendant appeals from this order of the trial court arguing that his affidavit was proper and that the trial court erred in refusing to quash service of summons and vacate the ex parte judgment. We agree.

In order to obtain jurisdiction over the person of defendant, proper service of summons is required. (In re Adoption of Miller (1982), 106 Ill. App. 3d 1025, 1028-29, 436 N.E.2d 611.) Where a court does not have personal jurisdiction over the defendant, any order it enters against him is void ab initio and subject to direct or collateral attack at any time. Hatcher v. Anders (1983), 117 Ill. App. 3d 236, 237-38, 453 N.E.2d 74.

In the present case, service of process was made pursuant to section 10 — 301 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 10 — 301), frequently referred to as the nonresident motorist statute. Under this statutory provision, substituted service of process on the defendant may be obtained by serving the Illinois Secretary of State, provided that the claim arises from the use of a motor vehicle within this State, the defendant is a nonresident or subsequently becomes a nonresident, and notice of the action is sent to the nonresident defendant’s last known address. A party claiming substituted service under the nonresident motorist statute must demonstrate strict compliance with every requirement of the statute. (Rompza v. Lucas (1948), 337 Ill. App. 106, 113, 85 N.E.2d 467.) This is accomplished by submitting an affidavit of compliance to the court. (337 Ill. App. 106, 113-16.) Where the requirements of section 10 — 301 are met, the service is valid and the court has jurisdiction over the person of the nonresident defendant even if the defendant never receives actual notice of the litigation. Ogdon v. Gianakos (1953), 415 Ill. 591, 114 N.E.2d 686; Hatcher v. Anders (1983), 117 Ill. App. 3d 236, 453 N.E.2d 74.

Clearly, substituted service on the Secretary of State pursuant to the nonresident motorist statute will confer no jurisdiction over the person of an Illinois resident. The plain language of the statute permits substituted service only where the defendant “is a non-resident of this State or at the time a cause of action arises is a resident of this State but subsequently becomes a non-resident of this State.” (Ill. Rev. Stat. 1981, ch. 951/2, par. 10 — 301(a).) We believe defendant’s unrebutted affidavit sufficiently demonstrated his continuous residency in Illinois and therefore his motion to quash service of summons and vacate judgment should have been granted.

Plaintiff argues that defendant’s affidavit was not in compliance with Supreme Court Rule 191 (73 Ill. 2d R. 191) because it consists of mere conclusions rather than evidentiary facts. As recently noted in Burks Drywall, Inc. v. Washington Bank & Trust Co. (1982), 110 Ill. App. 3d 569, 576, 442 N.E.2d 648, “the rule [Supreme Court Rule 191] is satisfied if from the document as a whole it appears the affidavit is based on the personal knowledge of the affiant and there is a reasonable inference that the affiant could competently testify to its contents ***.” Here, defendant’s residency is a matter well within his personal knowledge and certainly he could competently testify to the information contained in his affidavit. We do not find the contents of defendant’s affidavit so conclusory as to warrant denial of defendant’s motion.

We also note that the only evidence of record rebutting defendant’s affidavit consists of the affidavit of compliance submitted by plaintiff’s attorney wherein he states on “information and belief” that defendant was a nonresident of this State. Counteraffidavits consisting of allegations based on information and belief are insufficient to rebut an affidavit consisting of the positive averments of fact based upon an affiant’s personal knowledge. (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, cert. denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847.) Accordingly, defendant’s unrebutted affidavit established his Illinois residency and the substituted service of process pursuant to the nonresident motorist statute was improper. The court rendering judgment against defendant had no jurisdiction over his person and the ex parte judgment was therefore void and should have been vacated.

While the foregoing effectively disposes of the present appeal, we believe it is necessary to comment on the affidavit of compliance submitted by plaintiff’s counsel. From the briefs and arguments before us, it is apparent that counsel improperly used a form affidavit alleging defendant’s nonresidency on “information and belief.”

In Kress v. O’Hara (1973), 14 Ill. App. 3d 54, 302 N.E.2d 123, the court held that an affidavit of compliance is not per se objectionable because it is based on information and belief of defendant’s nonresidency. Quoting the early case of Fitch v. Gray (1896), 162 Ill. 337, 44 N.E. 726, the court noted:

“ ‘That a defendant resides or has gone out of the State is a fact which cannot be expected, in most cases, to be known by one about to commence a suit except on the information of others, and where the fact is not to be supposed to rest in personal knowledge, but to depend upon the information of another, there would seem to be no essential difference in swearing to the fact in terms of absolute assertion or upon information and belief.’ ” (Kress v. O’Hara (1973), 14 Ill. App. 3d 54, 58, quoting Fitch v. Gray (1896), 162 Ill. 337, 344.)

However, as the above quote indicates, Kress does not eliminate the requirement that the affiant so swearing have some information from others upon which the affiant may reasonably conclude that the defendant is not a resident of Illinois.

In the present case, plaintiff’s counsel relied solely upon the information obtained from the sheriff’s returns. The first return was marked “not found,” “wrong address.” The second return indicated defendant had “moved and left no forwarding address” and that defendant’s whereabouts were not ascertainable. We do not believe this constitutes the type of information upon which one may leap to the conclusion that defendant is a nonresident of Illinois.

The facts of the present case stand in sharp contrast to those in Duke v. Paul (1974), 20 Ill. App. 3d 500, 314 N.E.2d 517, where plaintiff’s attorney submitted an affidavit of defendant’s nonresidency based on information and belief after he had made personal inquiries and was told that defendant had moved from the State. Here, the sheriff’s returns relied on by plaintiff never suggested that defendant was not a resident of this State during the times in question. Plaintiff may not assume that difficulty on the part of a deputy sheriff in attempting to serve process upon an individual is tantamount to a status of nonresidency for that individual. We further find that the filing of a form affidavit alleging defendant’s nonresidency on “information and belief” to be no substitute for the attorney making personal inquiry regarding such allegations.

In view of the foregoing, the order appealed from is reversed and the cause remanded with directions to enter an order quashing service of summons and vacating judgment against defendant.

Reversed and remanded, with directions.

McGLOON and CAMPBELL, JJ., concur.


author: PRESIDING JUSTICE ALLOY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN ALLEN, Defendant-Appellant.
    Third District
    No. 3—83—0483
    Opinion filed May 31, 1984.
    Robert Agostinelli and Frank W. Ralph, both of State Appellate Defender’s Office, of Ottawa, for appellant.

      Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Vicki R. Wright, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

The defendant, Steven Allen, was charged by information with having committed the offenses of attempted burglary and possession of burglary tools. (Ill. Rev. Stat. 1983, ch. 38, pars. 8 — 4, 19 — 1, 19— 2.) Following a jury trial, the defendant was found guilty of both offenses. Thereafter, he was sentenced to a determinate term of three years of imprisonment.

The defendant now raises a single issue on appeal: whether the trial court erred in refusing to give the second paragraph of the circumstantial evidence jury instruction.

At issue is Illinois Pattern Jury Instruction, Criminal, No. 3.02 (2d ed. 1981). The first paragraph, which was given by the court, reads as follows:

“Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of the defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.”

The second paragraph of this instruction was refused by the court. It reads as follows:

“You should not find the defendant guilty unless the facts or circumstances exclude every reasonable theory of innocence.”

The committee note accompanying this paragraph indicates that the second paragraph is to be given only when all of the evidence against the defendant is entirely circumstantial. People v. Gray (1980), 85 Ill. App. 3d 726, 731, 410 N.E.2d 493, 496.

We have thoroughly reviewed the report of proceedings at trial and conclude that the evidence was not entirely circumstantial and that the trial judge properly refused to give the second paragraph of the circumstantial evidence jury instruction. We, therefore, affirm.

The evidence adduced at trial included the defendant’s own testimony that he was present at the scene of the crime. Moreover, the jury also heard the testimony of the police officers who apprehended the defendant regarding his presence at the scene of the crime. Both the defendant’s testimony as to the circumstances surrounding the offense (People v. Spataro (1978), 67 Ill. App. 3d 69, 75, 384 N.E.2d 553, 558) and the testimony of the police officers as to their observation and apprehension of the defendant at the scene of the crime constitute sufficient direct evidence to justify the refusal to give paragraph two. People v. Briggs (1983), 112 Ill. App. 3d 979, 982, 446 N.E.2d 305, 307.

Additionally, the jury heard the testimony of an eyewitness to the attempted burglary who, at approximately 1 a.m. on February 3, 1983, observed a car, without lights, stop by a dumpster in the parking lot of a Day and Night Store. According to the eyewitness, he observed three persons leave the automobile and walk behind the dumpster. Later, they walked to the rear of the car where one opened the trunk and removed a pick-ax. All three then walked to the rear of the Day and Night Store where one of them took a swing with the pickax. The witness, while observing this activity, called the police who arrived shortly thereafter, apprehended the three men, and found the pick-ax stuck in the store wall.

Although the defendant’s explanation of these events is that he was half-asleep and intoxicated and unaware of what the other two were doing, the jury, judging the defendant’s credibility, chose to believe otherwise. While it must be inferred from the totality of the evidence that the individuals whom the eyewitness observed were the same persons whom the police officers apprehended, this does not, in itself, require that the court give paragraph two of the circumstantial evidence jury instruction. As we concluded earlier, there was sufficient direct evidence contained in the testimony of the police officers and the defendant to render it unnecessary to give the second part of the instruction.

Accordingly, we affirm the judgment of the circuit court of Will County.

Affirmed.

BARRY and STOUDER, JJ., concur.


author: JUSTICE WEBBER

text:
    CHRISTINE MARIE THOMPSON, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Caterpillar Tractor Company, Appellee).
    Third District (Industrial Commission Division)
    No. 3—84—0129WC
    Opinion filed June 8, 1984.
    Matthew C. Mays, of Knuppel, Grosboll, Becker & Tice, of Petersburg, for appellant.
    Forrest D. Serblin, of Peoria, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

Petitioner, Christine Thompson, filed an application for adjustment of claim seeking workers’ compensation benefits and naming her employer, Caterpillar Tractor Company, as respondent. She alleged that she suffered a back injury while in the course of her employment. An arbitrator found that Thompson had failed to prove that she sustained accidental injuries arising out of and in the course of her employment and denied her claim for compensation.

Thompson then sought review before the Industrial Commission. In its decision of November 24, 1982, the Commission adopted the arbitrator’s findings since no evidence was presented on review and because the Commission found no reason to disturb the original findings. The circuit court confirmed the decision of the Commission. Thompson now appeals, claiming that the Commission’s decision was contrary to the manifest weight of the evidence. We affirm.

At the arbitration hearing Thompson testified that on March 15, 1980, while working in the maintenance department of Caterpillar, she slipped on some oil and twisted her back. She did not fall as she was able to catch herself on a rail. Following this alleged incident, she returned to her job and performed her regular duties, which included shoveling and heavy lifting. She testified that she reported this incident to her foreman two days later. She could not recall his response.

Thompson continued with her regular work duties for the next three weeks and did not seek medical attention. She first sought medical attention on April 10, 1980, when she saw Dr. Burch, a chiropractor. Dr. Burch prepared a case history in which he included Thompson’s fall from a swing some five years earlier as well as a history of foot and neck pains off and on for the past five years. No mention was made of a work-related accident, although Thompson testified that she reported this to Dr. Burch.

On April 18, 1980, she reported to the Caterpillar first-aid office complaining of back pains and reporting the March 15 incident. She was referred to a company doctor, who subsequently sent her to a Peoria hospital. On May 2, 1980, Dr. Henderson, a neurosurgeon, performed a lumbar laminectomy on Thompson. She was discharged from the hospital on May 10, 1980, and released for work in September 1980.

Thompson’s foreman also testified at the arbitration hearing. He stated that she did not complain to him about any work-related problems. He testified that he could not recall any report concerning the alleged March 15, 1980, incident.

Thompson’s credibility was seriously undermined by an incident regarding a letter from Dr. Burch. She called him sometime in April 1981 and asked him to correct his records to show that she had consulted him about her work injury when she first saw him on April 10, 1980. She also obtained from him a letter dated April 6, 1980, referring to the injury of March 1980. The deception is apparent — a letter dated four days prior to the initial consultation. Burch’s deposition taken in August 1981 was introduced into evidence. In it he stated that the correct date of the letter should be April 6, 1981, not April 6, 1980. He also stated that his office records and history made during the course of treatment in April 1980 made no reference to a work injury.

In order to recover under the Workers’ Compensation Act, an employee must prove by a preponderance of the evidence that his injury arose out of and in the course of his employment. In determining whether or not an employee has met this burden, it is the function of the Industrial Commission to resolve disputed questions of fact and weigh the credibility of the witnesses. (Branch v. Industrial Com. (1983), 95 Ill. 2d 268, 447 N.E.2d 828.) The Commission’s decision will not be reversed on review unless it is against the manifest weight of the evidence.

In the present case, Thompson’s testimony regarding her alleged March 15, 1980, accident was contradicted by the testimony of her foreman and Dr. Burch. Although she claims to have reported her accident to both men, neither of them could recall any such report. It was entirely within the Commission’s discretion to disbelieve Thompson’s testimony in this regard. Likewise, evidence that a claimant did not seek immediate medical attention or express difficulty performing work duties following an alleged work accident may be considered by the Commission in determining the merits of a claim. Myszkowski v. Industrial Com. (1977), 68 Ill. 2d 205, 369 N.E.2d 827.

Along with her failure to report the accident promptly, Thompson’s later attempt to have Dr. Burch add the accident’s occurrence to her case history casts doubt upon the veracity of her entire testimony. Thompson’s lack of credibility, the inconsistencies in the testimony, and the lack of corroborative evidence involved here were certainly sufficient to support the decision of the Commission.

Accordingly, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

SEIDENFELD, P.J., and McNAMARA, BARRY and KASSERMAN, JJ., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    JERRY G. SESSION, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Hiram Walker & Sons, Inc., Appellant).
    Third District (Industrial Commission Division)
    No. 3—84—0130WC
    Opinion filed June 8, 1984.

      Raymond C. Williams, of Goldsworthy & Fifield, of Peoria, for appellant.
    Matthew C. Mays, of Knuppel, Grosboll, Becker & Tice, of Petersburg, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The circuit court reversed a decision of the Industrial Commission which had concluded that the employee, Jerry G. Session, had failed to prove a causal connection between the carpal tunnel syndrome of his right hand and his accident in the Hiram Walker & Sons plant on September 12, 1979. The decision of the arbitrator awarding compensation and medical expenses based on the carpal tunnel syndrome was reinstated by the circuit court. The employer appeals.

Claimant was employed as a checker in the company’s shipping department. His duties required that he pick up orders for the truck drivers and send them out to the trucks. He testified that on September 12, 1979, he bent over to pick up a case of whiskey, felt something “pop” in his arm, and experienced difficulty straightening up. He said that after resting for a few minutes, he reported to the nurse at the first-aid station that his back hurt and that his hand was “kind of numb.” He had preexisting back trouble and had had a laminectomy performed several years before. The nurse referred him to Dr. Palmer in Peoria for X rays.

The nurse testified that she prepared an initial report of the accident from the employee’s own description of what happened. After she finished typing, she asked claimant to read and sign it. She testified that, at the time she saw the claimant, he related nothing concerning an injury to his right arm, hand or wrist. The claimant acknowledged that his signature appeared on the form but stated he was unable to read the information because of illiteracy.

A fellow employee testified that he was present at the time of the injury and was told by the claimant that he had hurt his arm. He spoke to claimant later by the elevator, at which point claimant complained of pain in his back. The witness said he had seen the claimant look at orders as a checker and had seen him look at the newspaper. He assumed that he could read.

The claimant testified that he had repeated his complaint concerning the discomfort in his hand to Dr. Palmer but that the doctor said he had probably pulled a ligament and did not order X rays. Session did not claim to have related his version of the accident, including the “popping” sound, to Dr. Palmer.

After the accident, Session consulted his own physician, Dr. Choi, in Springfield. He said that although he had no prior trouble, he now had no feeling in his thumb and had a tingling sensation in the ends of his fingers. Dr. Choi had claimant hospitalized and on October 1, 1979, performed a release carpal tunnel in his right hand. Following this surgery, his hand was not as strong as it had been, and he experienced some continuing numbness. He also did not tell Dr. Choi how the accident happened or about the “popping” sound.

The claimant contends that both the deposition testimony of Dr. Choi and that of Dr. Rivero, included in the record before the Industrial Commission, showed a causal connection between the carpal tunnel syndrome and the accident of September 12, 1979. Thus, he argues, there was no factual support for the decision of the Commission and it was properly reversed by the circuit court as against the manifest weight of the evidence.

The critical inquiry must focus on the deposition testimony of Dr. Choi. Dr. Choi examined the claimant on September 28, 1979. Claimant complained of back pain going to the right leg and foot. After Dr. Choi examined claimant’s back, claimant mentioned that he was having pain in the right hand. Dr. Choi found that claimant had a nerve compressed at the right wrist, requiring surgery to release the compression. Following surgery, the claimant continued to have slight nerve dysfunction. Dr. Choi then gave the following testimony concerning the cause of claimant’s injury:

“Q. The question I am asking you now is whether or not you have an opinion, based upon a reasonable degree of medical certainty, as to whether the history, the popping of the wrist which he related to you, could, might have caused or aggravated the compressed nerve which you operated on for in his wrist?
* * *
A. I could not make a diagnosis with that kind of history, but he described the symptoms. That is why I made the diagnosis.
Q. Yes, but he also explained to you the history of the popping of the wrist?
A. Yes.
Q. That apparently happened when he was lifting that?
A. Yes.
Q. Could or might that have aggravated the preexisting symptoms which he had given you?
A. I cannot answer that because usually the carpal tunnel syndrome does not develop that way.
Q. Would it be aggravated by that?
A. I do not think so.
Q. All right, Doctor, what normally causes a carpal tunnel syndrome?
A. It usually comes from repeated injury or one single injury, a severe injury. Many times it come [sic] without any reason.
Q. In your diagnosis and treatment did you form an opinion as to whether or not this was a work rélated injury?
A. He did not give me the history of how that happened. He just gave me history he had symptoms two weeks. [Sic]”

Claimant presented no evidence regarding the demands of his work so as to establish that his arm and wrist were subjected to repetitive trauma. In the absence of such evidence, Dr. Choi was unable specifically to establish a causal relationship between claimant’s activity on September 12 and his development of the carpal tunnel syndrome. It was Dr. Choi’s testimony that carpal tunnel syndrome would not ordinarily develop on account of a single instance of picking up an object. His statement that if a person lacking previous symptoms were to develop them at the time of lifting an object, “[t]hat means the symptoms developed when he reached hand [sic] to pick up case,” purported to describe only the point at which the manifestations, rather than the condition itself, became apparent.

The testimony of Dr. Horacio Rivero, who examined claimant on October 23, 1981, and testified to the causation between the carpal tunnel syndrome and the accident in answering a hypothetical question, was premised on the indications that claimant performed heavy and repeated lifting. However, the sole account in the record of any physical exertion required of claimant by his duties was that on a single instance he picked up a case weighing 311/2 pounds. There was no testimony as to the frequency with which such lifting was required. See Caterpillar Tractor Co. v. Industrial Com. (1983), 98 Ill. 2d 400, 405-06.

This case is factually similar to Caterpillar in this regard. In Caterpillar, the supreme court found that there was no evidence from which the inference could be drawn that the employment activities constituted repetitive trauma and that Dr. Rivero’s conclusions were based on facts not in the record and therefore did not establish causation. Caterpillar Tractor Co. v. Industrial Com. (1983), 98 Ill. 2d 400, 406. See also Johnson v. Industrial Com. (1982), 89 Ill. 2d 438, 443.

The credibility of witnesses and causal connection are questions for the determination of the Industrial Commission. The Commission’s decision will not be set aside on review unless contrary to the manifest weight of the evidence. (Certi-Serve, Inc. v. Industrial Com. (1984), 101 Ill. 2d 236, 244. See also Domagalski v. Industrial Com. (1983), 97 Ill. 2d 228, 236.) It is axiomatic that the Commission is entitled to draw reasonable inferences from the evidence and that the court will not disregard those inferences merely because other inferences might have been drawn. Berry v. Industrial Com. (1984), 99 Ill. 2d 401, 406-07.

We note that the circuit court confirmed the Industrial Commission’s decision which denied the claims for permanent disability with respect to claimant’s back and leg. The Commission awarded the claimant $226.67 per week for a period of 8.37 weeks for temporary total disability, and this was confirmed by the circuit court. No cross-appeal has been taken by the claimant.

We conclude that the finding of the Industrial Commission was not against the manifest weight of the evidence. The judgment of the circuit court of Peoria County is therefore vacated, and the finding of the Industrial Commission is reinstated.

Judgment vacated; order reinstated.

McNAMARA, BARRY, WEBBER, and KASSERMAN, JJ., concur.