author: JUSTICE DOWNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE HUDSON, Defendant-Appellant.
    First District (2nd Division)
    No. 80-1106
    Opinion filed November 24, 1981.

      James J. Doherty, Public Defender, of Chicago (Ira Chur gin, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and Richard T. Sikes, Jr., of counsel), for the People.
   JUSTICE DOWNING

delivered the opinion of the court:

Defendant Eddie Hudson was charged in a four-count information with the murders of two men. A jury found defendant guilty of two counts of murder. Although defendant was eligible for the death penalty, the trial court found sufficient mitigating factors, and instead sentenced defendant to an extended term of 45 years.

Defendant claims (1) that the evidence did not prove him guilty beyond a reasonable doubt; (2) certain remarks of the assistant state’s attorney during closing argument deprived him of a fair trial; and (3) the trial court abused its discretion in entering an extended term sentence.

On December 6, 1977, Jimmy and Willie Ewing were shot to death and Roy Woods was injured at a Chicago location. Defendant was arrested and brought to trial for the Ewing murders.

James Clark, the State’s first witness, testified that on the night of the shootings, he had finished work and proceeded to Big Man’s Liquor Store, 5648 S. Halsted, Chicago, at about 1 a.m. He sat in his pickup truck across the street on the east side of Halsted for one-half hour, listening to the radio. His friend, Tommy Larry, came by. Clark and Larry bought some beer at Big Man’s and sat drinking it at the tailgate of Clark’s truck.

During this time, three men walked by, coming from the north. One of them slapped Larry on the shoulder and spoke a few words to him. Clark did not see the men’s faces at that time. The three men continued south on Halsted, crossed the street, and then turned north on the west side of Halsted. Clark saw the men walk up to a hallway located next to Big Man’s. He heard shots and saw one of the men firing a gun into the hallway. Four or five shots were fired, and then the men ran. One of them crossed Halsted and passed within five feet of Clark. At trial, Clark identified this man, the one who had done the shooting, as defendant, and related that defendant was wearing a black turtleneck sweater and grey trousers on that night. Defendant fled past Clark and turned east into an alley on Clark’s side of Halsted.

On cross-examination, Clark stated that he did not pay attention whether there was anyone else on the street when he first arrived at Big Man’s. He was not looking at the liquor store as he sat in the truck. He might have seen one or two people go into the store during that time. Clark could see the hallway from his truck and did not see anyone enter or leave it. He did not see anyone pushed into the hallway. The first time he saw the three men was when they passed him on the street. After the attack, Clark saw Roy Woods, a victim of the shooting, lying in the hallway.

Woods testified tht he met Jimmy and Willie Ewing and two other men outside of Big Man’s at about 1 a.m. on December 6, 1977. As the men talked, two men walked up to Willie Ewing. Woods did not pay attention to their conversation. Woods identified defendant as one of the two men. He was wearing a black turtleneck sweater.

Woods later noticed that defendant and the other man had left. About five minutes later, defendant returned with two others. Woods was standing next to the hallway near the store. One of the three pushed Woods into the hallway. Woods fell on the steps and started to get up. Woods could see defendant’s face, since he was only six feet away. Woods then saw that defendant had a gun, and he stepped back. Defendant raised the gun and pointed it at Woods. Woods raised his arms up, and defendant fired a shot. The bullet hit his left forearm, and the impact spun him around. Woods fell on his face. He then heard the “constant repeat of fire.” He felt Jimmy Ewing’s body hit his, and felt it jerk several times. Jimmy hollered, “aw, man.” Woods thought he heard five shots while he was down. He then heard the gun click and looked up. Defendant was pointing the gun down at him and the Ewings, and it clicked three more times.

Woods then saw defendant turn around and run across the street holding the gun in the air and saying something. Defendant ran across Halsted in a northeast direction, turned north, and cut through a gangway on the east side of the street. A man then ran across the street to Woods. Woods later learned that the man was James Clark.

On cross-examination, Woods stated that he did not remember seeing anyone else on the street during the time. There was a light at the top of the hallway into which he was pushed. He did not pay attention to the initial conversation between defendant and Willie Ewing. Three or four minutes elapsed between when Woods was pushed into the hallway and when the shooting started. Woods recalled that defendant and the two others had approached him from the south.

The State called several other witnesses whose testimony is not considered relevant to the issues raised on this appeal. The sole evidence presented by the defense was the stipulated testimony of a toxicologist, which reflected that examiner’s findings as to the level of alcohol found in the bodies of the shooting victims.

The State and the defense then proceeded to present closing arguments. During the State’s rebuttal argument, the assistant state’s attorney made comments which are the subject of one of defendant’s contentions on this appeal. The content of those statements will be discussed more fully in the analysis of defendant’s claim. The jury returned guilty verdicts on two counts of murder.

I

Defendant claims that the evidence did not prove him guilty beyond a reasonable doubt of the murders of the Ewing brothers because of discrepancies and contradictions in the testimony of the two eyewitnesses; and because of the asserted lack of credibility in those witnesses’ identifications of defendant due to the allegedly suggestive one-photo showup of defendant.

We do not believe any purpose would be served by further restatement of the testimony of witness Clark and victim Woods, or by further analysis of the alleged or obvious differences in their stories. Careful scrutiny of the evidence convinces us that the jury had sufficient facts upon which to base a valid conviction of defendant. Most notably, and very briefly, the testimony of Clark and Woods as to the events of December 6,1977, is remarkably similar in all salient points. Additionally, both had clear opportunities to closely view the assailant who fired the gun, and both identified defendant as that person, without question in their minds. Defendant’s argument on this issue is, as noted by the State, essentially a rehash of the closing argument. That argument did not convince the jury, and nothing in it creates, in our judgment, a reasonable doubt of defendant’s guilt.

Defendant does focus special concern upon the effects of the photographic showups of defendant made to both Clark and Woods soon after the occurrence. We note that defendant filed pretrial motions to suppress the identification testimony of these witnesses on this ground. The trial court refused the requested suppression, and defendant does not contest that result here. Consequently, defendant has conceded that, as a matter of law, the photo showups were not so unduly suggestive as to require suppression of the viewers’ testimony. It was thus a question of fact for the jury to decide whether the identification testimony of Clark and Woods was rendered noncredible because of the circumstances of the showups. In his closing arguments, defendant’s attorney stressed this point to the jury. Evidently, the jury was not impressed with defendant’s position on the matter. In such circumstances, where the evidence clearly demonstrates defendant’s guilt, this court will not overturn the fact-finder’s evaluation of the evidence. On this record, there does not exist a reasonable doubt as to defendant’s guilt.

II

Defendant argues that various parts of the State’s rebuttal to his closing argument deprived him of a fair trial.

A.

During rebuttal, the assistant state’s attorney made the following comments:

“ASA: When we started this trial, you were told that the defendant is presumed to be innocent until we, the People, show different. And once we begin to call witnesses to the witness stand, what happens is that the presumption begins to part.
Df: Objection, Judge.
Ct: Sustained.”

Defendant correctly states that the presumption of innocence remains with him at all stages of trial, and that this comment of the assistant state’s attorney was therefore highly improper. (People v. Balls (1981), 95 Ill. App. 3d 70, 77, 419 N.E.2d 571; People v. Wilson (1981), 92 Ill. App. 3d 370, 381, 415 N.E.2d 1315.) However, the court instructed the jury carefully as to the proper status of defendant’s presumption of innocence. The court also immediately sustained defendant’s objection to the statement. The assistant state’s attorney’s interjection of this statement into the proceedings was glaringly improper. However, given the corrective measures taken and considering the great weight of the evidence demonstrating defendant’s guilt, we decline to reverse defendant’s conviction on this ground. See People v. Balls.

B.

During rebuttal, the assistant state’s attorney told the jury that he could not ask the police officer who testified what the officer had heard from persons conversing at the crime scene because "I couldn’t ask that question # 0 *. It would be prejudicial to [the defense attorney’s] client.” Defendant’s objection to this comment was sustained. The State clarifies the context of this statement by pointing out that, in his closing argument, defendant’s attorney had commented that “you don’t know [what the testifying officer heard] because you haven’t heard from one of the police officers who had those conversations. You don’t know because you haven’t heard from Jimmy Coston and Tommy Larry who were on the street at the time # "

A defendant cannot complain that he has been prejudiced by remarks which have been invited or provoked by defense counsel. (People v. Galloway (1979), 74 Ill. App. 3d 624, 628, 393 N.E.2d 608.) On the other hand, here the comments went beyond explaining to the jury why the conversations were kept out of evidence. The reference to the prejudice to defendant in those statements interjected additional information which was not necessary to rebut the defense counsel’s assertions, and which may have transformed the jury’s inference into an assumption. (See, e.g., People v. Lopez (1980), 89 Ill. App. 3d 456, 457, 411 N.E.2d 1071.) Given the court’s quick action in sustaining defendant’s objection, and in light of the fact that the comment did flow from remarks made by defense counsel which cast an unwarranted shadow on the State’s evidence, we do not find that the comment warrants reversal of defendant’s conviction. See, e.g., People v. Watson (1981), 94 Ill. App. 3d 550, 559, 418 N.E.2d 1015.

C.

During rebuttal, the assistant state’s attorney told the jury that two of the witnesses (referring to Woods and Clark) had testified even though they were afraid because they had the courage to do so. Defendant’s objection was immediately sustained.

Examination of the record demonstrates that the only purpose of this comment could have been to defuse defense counsel’s rhetorical question to the jury in his closing argument as to the failure of the State to call Clark’s friend, Tommy Larry, who was also on the scene that night. Since defendant invited the State’s comment by reflecting on the absence of Larry, he cannot now complain that it was made. People v. Galloway.

D.

Finally, during rebuttal, the assistant state’s attorney analogized defense counsel’s closing argument to an octopus using its ink to obscure its escape. The prosecutor also said that a lot of what the defense counsel had related was untrue. Objections to these comments were denied.

Analysis of the State’s comments in conjunction with the defense counsel’s prior summation of his view of the evidence indicates that the State was not accusing the defense of trickery or of fabricating a defense. Rather, the comments were designed to point out to the jury that defense counsel’s closing argument consisted largely of highlighting minor inconsistencies in the testimony of the State’s witnesses. Additionally, the prosecutor’s comment that defense counsel’s statements were untrue is not an accusation that the latter lied. Rather, he merely argued that the defense misconstrued the evidence, and made no effort to assign wrongful intent to such misconstruction. There was no error in the State’s actions. See People v. Robinson (1980), 91 Ill. App. 3d 1138, 1146-47, 415 N.E.2d 585; People v. Lavoy (1980), 91 Ill. App. 3d 639, 644, 415 N.E.2d 487; People v. Johnson (1979), 73 Ill. App. 3d 431, 434-35, 392 N.E.2d 587; People v. Griggs (1977), 51 Ill. App. 3d 224, 226, 366 N.E.2d 581, appeal denied (1977), 66 Ill. 2d 640.

Ill

Defendant lastly asserts that the trial court erroneously sentenced him to an extended term. Ill. Rev. Stat. 1979, ch. 38, pars. 1005—5—3.2(b), 1005 — 8—2.

In order to impose an extended term on a conviction, the trial court must find the presence of either one of two statutorily enumerated aggravating factors: that the felony conviction for which the sentence is to be entered followed within 10 years of the same defendant’s conviction for the same or a greater class felony; or that the sentencing offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. In making its sentencing decision, the trial court noted that defendant’s actions appeared to have been “needless and incredibly cold-blooded and cruel “ * ” exceptionally brutal behaviour [sic], * e # certainly henious [sic] and indicative of wanton cruelty.” Defendant claims that “other than the shootings, nothing brutal or heinous occurred” and that the trial court thus had no basis for entering the extended term. Defendant also argues the crime of murder cannot serve as the basis for an extended term since the “brutality” factor of the sentencing statute also is an element of the crime itself.

Initially, we reject defendant’s claim that the manner in which he murdered the Ewing brothers was neither brutal nor heinous. The evidence demonstrated that defendant gunned down three men, two of whom died, with no apparent justification. The record also shows that defendant pulled the trigger several times after he had emptied the gun of ammunition, and was thus apparently prevented from killing a third man only through his own lack of foresight. To characterize this action as if it was an everyday occurrence to which society’s sense of outrage has become immune is ludicrous. We find defendant’s acts to be clearly indicative of wanton cruelty.

Nonetheless, defendant claims that since murder requires an intent to do great bodily harm or to kill, this intent factor is identical to the aggravating factor and thus precludes entry of an extended term in murder cases. This assertion must be rejected. Surely a situation may be hypothecated in which a murder does not rise to the level of heinous or brutal acts. In such a case, a murder conviction could occur while an extended term would be precluded (if based upon the brutality factor). There is thus no inherent duplication in finding a defendant guilty of murder and in some cases finding his acts to warrant an extended sentence. Nothing in the cases cited by defendant, People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906, and People v. Brownell (1980), 79 Ill. 2d 508, 404 N.E.2d 181, cert. dismissed, 449 U.S. 811, 66 L. Ed. 2d 14, 101 S. Ct. 59, requires a contrary conclusion. The extended-term sentence was properly entered by the trial court.

For the preceding reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

STAMOS and PERLIN, JJ., concur.

       Other State’s witnesses included the coroner who autopsied the victims and reported thereupon; the victims’ sister, who related their last known living whereabouts; an expert who examined bullets related to the murders; and the Chicago policeman who arrested defendant.

       Defendant’s reference to Simmons v. United States (1968), 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967, is of no value to his contention. In Simmons, the Supreme Court rejected that defendant’s argument that photo showups similar to those here prejudicially tainted his conviction. The court noted that the potentially prejudicial effect of the showup can be mitigated by cross-examination which shows the jury the method’s potential for error. Defendant’s counsel followed just such a course here.

       The extended term statute became effective February 1, 1978. Although it was not in effect at the time defendant committed the crimes, he elected, as was his option, to be sentenced under it.

       Defendant notes that the trial court relied upon other irrelevant factors (defendant's prior robbery conviction and the goal of deterrence) in entering the extended term sentence. We believe that the trial court correctly utilized the extended term provisions, as discussed above, despite its consideration of these irrelevant matters.

       In the words of Justice Trapp's dissent in People v. Schlemm (1980), 82 Ill. App. 3d 639, 652, 402 N.E.2d 810, appeal denied (1980), 81 Ill. 2d 598, cert. denied (1981), 449 U.S. 1127, 67 L. Ed. 2d 115, 101 S. Ct. 948, “[ujnless one is to accept the reputed methods of gangsters, the conduct is ‘heinous’.”


source: Caselaw Access Project

license: Public Domain

text:
    METROPOLITAN LIFE INSURANCE COMPANY, Plaintiff, v. LEONARD C. HANSEN et al., Defendants.—(LEONARD C. HANSEN, Defendant-Appellant, v. MICHELE HANSEN et al., Minors, Defendants-Appellees.)
    First District (2nd Division)
    No. 80-2705
    Opinion filed November 24, 1981.
    Raymond H. Borkenhagen, of LaGrange, for appellant.
    Myron Kantor, guardian ad litem, of Chicago, for appellees.
   JUSTICE DOWNING

delivered the opinion of the court:

A dispute over the proceeds of a life insurance policy caused the insurer, Metropolitan Life Insurance Company, to institute this inter-pleader action.

Warren Hansen, decedent, acquired life insurance through his employer in 1960. He designated Sharon Hansen, then his wife, as revocable primary beneficiary. Warren divorced Sharon and married Linda Hansen, defendant. Three children, Michele, Mark, and Jon, defendants-appellees, were born to this marriage. On February 3, 1972, a separate maintenance decree was entered by default in favor of Linda Hansen against Warren Hansen. This decree ordered Warren to support Linda and the children, and, inter alia:

“7. That the defendant [Warren] shall keep and maintain all existing life insurance policies on his life, including but not limited to, a Prudential Life Insurance policy, and shall name the minor children as irrevocable beneficiaries of said policies of insurance during the term of their minority, and shall thereafter name the plaintiff [Linda] as said irrevocable beneficiary.”

On March 23, 1978, not having taken any action with respect to the policy since 1960, Warren Hansen executed a change of beneficiary form, naming his father, Leonard C. Hansen, defendant-appellant, as revocable primary beneficiary. Two days later, Warren Hansen died. The life insurance policy had a value of $57,000. On April 26, 1978, Leonard Hansen was paid $15,000 plus interest by Metropolitan Life, and Metropolitan Life invested the remaining $43,000 on his behalf upon his request.

Metropolitan subsequently became aware of the claim of Linda Hansen and her minor children and instituted this interpleader action. The circuit court entered summary judgment in favor of the guardian ad litem of the minor children. It ordered Metropolitan to pay the remains of the proceeds in its possession to the children, and ordered Leonard Hansen to pay to the children the money paid to him by Metropolitan. Leonard Hansen appeals.

I

The issue, as framed by the parties below and in this court, is whether the court in the 1972 separate maintenance proceeding exceeded its authority in ordering the transfer of the beneficial interest in Warren Hansen’s life insurance policy. The circuit court held that the 1972 order was proper under the statute (Ill. Rev. Stat. 1975, ch. 68, par. 22, repealed eff. Oct. 1, 1977), and granted summary judgment in favor of the guardian ad litem of the minor children.

A reviewing court may affirm the judgment below on any basis appearing in the record. (Illinois Bell Telephone Co. v. Dynaweld, Inc. (1979), 70 Ill. App. 3d 387, 394, 388 N.E.2d 157.) The doctrine of res judicata operates as a bar to prevent Leonard Hansen from collaterally attacking the separate maintenance decree. The 1972 separate maintenance decree and the transcript of that hearing prior to the entry of the decree were before the circuit court, and are contained in the record on appeal. Warren Hansen did not appeal that judgment.

Res judicata provides that when a court of competent jurisdiction enters a final judgment on the merits of a cause of action, the parties to the suit and their privies are bound as to those issues which were raised, or could have been raised. (Hughey v. Industrial Com. (1979), 76 Ill. 2d 577, 582-83, 394 N.E.2d 1164.) The concept of privity contemplates a mutual or successive relationship to the same property rights which were the subject of prior litigation. (Schafer v. Robillard (1938), 370 Ill. 92, 100, 17 N.E.2d 963; Greenlee v. John G. Shedd Aquarium (1976), 36 Ill. App. 3d 924, 926, 344 N.E.2d 788, affirmed (1977), 66 Ill. 2d 381, 362 N.E.2d 1050.) A judgment as to property owned by a decedent is binding on the heirs. Pereboom v. Cloyd (1925), 317 Ill. 85, 89-90,147 N.E. 382; see Hutchinson v. Hutchinson (1911), 250 Ill. 170, 173, 95 N.E. 143.

The identical issue is involved in the instant case as was adjudicated in the 1972 separate maintenance proceeding. As beneficiary of Warren Hansen’s life insurance policy, Leonard Hansen stands in privity with him. Thus, Leonard Hansen is barred from attacking the validity of the separate maintenance decree.

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

Affirmed.

HARTMAN, P. J., and PERLIN, J, concur.


text:
      In re MARRIAGE OF SANDRA A. RUNGE, a/k/a Sandra A. Kohn, Petitioner-Appellant, and CHARLES W. KOHN, Respondent-Appellee.
    First District (2nd Division)
    No. 81-885
    Opinion filed November 24, 1981.

      Carr & O’Rourke, of Chicago, for appellant.
    Alan Masters, of Argo-Summit, and Errol Zavett, of Chicago, for appellee.
   JUSTICE DOWNING

delivered the opinion of the court:

Petitioner Sandra A. Runge (Sandra) sought the issuance of a rule to show cause against her former husband, Charles W. Kohn (Charles), for failure to pay the proper amount of child support and otherwise comply with the terms of their divorce decree, and sought an increase in child support. The trial court found that Charles was not liable for the alleged child support arrearages for several reasons and modified his support obligations. Unhappy with both of these results, Sandra appeals, contending that the trial court erred (1) in finding that Sandra was barred by equitable estoppel and laches from recovering any child support arrearages which existed; and (2) in modifying Charles’ future child support obligation from a fixed percentage of his income to a set monthly dollar amount.

Sandra and Charles were divorced in Cook County proceedings finalized on June 18, 1971. Incorporated into the divorce decree was a property settlement agreement of the parties. In that agreement, Charles acceded to Sandra having permanent custody of the parties’ three minor children, then aged 5 (twins) and 8 months. Charles also agreed to pay a fixed dollar amount of child support per month.

Unfortunately, entry of the decree did not squelch the acrimony existing between the parties. Several post-decree proceedings followed, including Sandra’s first petition for a rule to show cause against Charles, filed March 6, 1973. Therein, Sandra claimed that Charles was behind in his child support payments. Charles cross-petitioned for a reduction in his support obligations. After conducting a hearing, the circuit court ordered modification of the terms of the divorce decree by requiring that Charles would thereafter pay 40% of his net income, less certain deductions, per month. Additionally, Charles was to submit with each payment copies of his pay statements and statements of “unreimbursed employment expenses” with receipts therefor. The court also found Charles liable for a small amount of support arrearages. This order was entered June 8,1973.

Sandra appealed from this order, and this court affirmed the circuit court. (Kohn v. Kohn (1974), 21 Ill. App. 3d 117, 315 N.E.2d 52 (abstract).) During the pendency of the appeal, Sandra filed a second petition for a rule to show cause. The outcome of that proceeding is not relevant here.

Between 1974 and 1980, the parties remained in a state of relative tranquility so far as the judicial system was concerned. However, on December 4,1980, Sandra filed another petition for a rule to show cause for Charles’ alleged failure to comply with the terms of the decree as then in effect, and for modification of that decree, seeking an increase in child support. The result of this petition serves as the subject matter of this appeal.

Three witnesses appeared at the hearing on Sandra’s petition. Each party appeared on his own behalf and as a section 60 (Ill. Rev. Stat. 1979, ch. 110, par. 60) witness for the other. Charles also called his present wife to the stand. Review of the testimony of each party will be consolidated for convenience.

In her testimony, Sandra claimed that she received the monthly sum of $226.34 from Charles after entry of the court order of June 1973. She never received copies of Charles’ pay statements or itemizations of expenses. She had reminded Charles of his duty in this regard several times over the years but had received “no real response.” Sandra stated that she had not sought judicial enforcement of the terms of the court orders because Charles had threatened to “alienate himself completely from his children, he would vacate the order and flee the state * * * and leave me with the entire burden of paying the expenses for the kids themselves.” She did not believe that Charles had ever missed a payment.

Sandra related that she had met with Charles, his new wife, Sandra’s then-fiance, and Sandra’s and Charles’ daughter in June 1974. Sandra stated that the meeting was for the purpose of discussing problems that the daughter was having. Sandra denied discussing alterations in the terms of Charles’ child support obligations, and related that the five persons were never separated for any substantial period of time during the meeting.

Sandra also testified as to her then-current economic status. At the time of the hearing (March 1981), Sandra was employed as an operating room supervisor in a hospital, earning about $23,000 per year. In 1973, Sandra earned about $12,000 per year. Sandra estimated her monthly household expenses to be $1,481.90. She stated that the costs of raising the children had changed since 1973. The twins required cheerleading camp every summer. They were also sent on ski trips and to ski lessons. The youngest daughter needed dancing lessons and engaged in several costly school activities. The twins were about to acquire driver’s licenses. All the children’s clothing needs had increased. Sandra related that her only asset was her home, which she valued at $50,000 and which was mortgage-free.

Charles testified that he stopped paying Sandra 40% of his net income in July 1974. He also stopped tendering Sandra his pay stubs and expenses receipts at that time; prior to that time he had complied with the court order and tendered the data. Charles stated that he had a meeting with Sandra in June 1974. Also present were Charles’ wife, Sandra’s fiance, and one of Sandra’s and Charles’ daughters. The meeting was called to discuss problems of the daughter and Sandra’s need for a “set budget because of her up and coming marriage.” At the meeting, Charles informed Sandra that he was about to receive a pay cut at his job because of loss of business, and that consequently Sandra’s child support payments (based upon the “40%” order) would be reduced substantially. Charles and Sandra thus agreed that he would pay Sandra a monthly sum of $226.34 in return for her waiver of her right to 40% of his income and her right to copies of his pay stubs and expenses receipts. Charles related that only he, Sandra, and Charles’ wife were present at the time this agreement was reached, the other two having gone off to have their own conversation. The agreement was never reduced to writing, and no court order was ever acquired to modify the 40% clause of the earlier order.

Charles also stated that he was unemployed for six months sometime after the meeting, but that Sandra still received the monthly payment of $226.34. He further stated that he had relied upon the alleged agreement in drawing up his family budget. Charles noted that since 1973, his income had increased substantially, to about $30,000 per year. Finally, Charles denied ever threatening that he would flee the State if Sandra instituted court proceedings due to her claim that he had not complied with the court orders regarding child support.

The third witness at the hearing was Charles’ second wife. She testified to the June 1974 meeting much as had Charles. She stated that Charles had initiated the support modification discussion there. She related that Charles was out of work for six months in 1975, but that his payments to Sandra per the 1974 agreement continued. She testified that Charles had mailed Sandra the required copies of pay statements and expenses receipts prior to the meeting. Finally, she noted that the family’s monthly budget was based in part upon an expectation that Charles owed Sandra the amount agreed upon at the 1974 meeting.

Following the arguments of the attorneys for the respective parties, the court found no wilful contempt on the part of Charles. Based upon laches and equitable estoppel, the court further barred Sandra from pursuing alleged arrearages. The court found the testimony substantiating the existence of an agreement to be more credible in light of the actions of the parties thereafter. Finally, the court modified Charles’ future support obligation to $350 per month, based upon Sandra’s income and assets, the children’s ages, the cost of living, Charles’ obligation to his new family, and “all the other factors * 0 * pursuant to section 505” of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 505).

I

Sandra argues that the trial court’s finding that equitable estoppel and laches barred her claim for any child support arrearages which Charles might owe for the period prior to the hearing was against the manifest weight of the evidence and contrary to law.

Clearly, a reviewing court may affirm a judgment of the trial court on any basis appearing in the record. (Illinois Bell Telephone Co. v. Dynaweld, Inc. (1979), 70 Ill. App. 3d 387, 394, 388 N.E.2d 157.) Neither Charles nor Sandra discusses the question of whether the evidence in this case sufficiently demonstrates the existence of a valid contract between the parties to modify the child support provisions of the divorce decree. We believe that this issue is central to the disposition of this appeal.

The general rule is that child support payments may be modified only by court order. However, an exception to that rule exists where the parties agree between themselves to alter the obligation. (See In re Marriage of Strand (1980), 86 Ill. App. 3d 827, 830, 408 N.E.2d 415, appeal denied (1980), 81 Ill. 2d 606.) In this case, Charles and his second wife testified at the hearing to almost identical facts concerning the June 1974 meeting between Charles and Sandra. Both related that Charles offered to pay Sandra a set amount per month instead of the 40% figure found in the court order. At the time, Charles was anticipating a marked reduction in salary which would lead to a concomitant reduction in payments to Sandra under the court-ordered payment formula. Sandra denied the substance of this testimony, yet did not call either of the other two persons present during at least part of the meeting to bolster her viewpoint. Further, the evidence indicates that Sandra accepted the set-sum checks for over six years without formál protest prior to instituting this action. This certainly supports the theory that an agreement was reached. Sandra’s claim that she withheld court action out of fear of retaliation by Charles is belied by both her prior litigiousness in the face of earlier arrearages by Charles, and by Sandra’s familiarity with the court system as shown by the intricacy of her earlier court-oriented activities. Logical and objective assessment of the facts leads to the conclusion that the parties did in fact reach an agreement on the matter. The trial court apparently so found in its oral ruling on the case. In our opinion, the record here contains the requisite clear and unequivocal evidence that Charles and Sandra agreed to modify Charles’ child support obligations, the terms being reflected in the manner in which Charles made the payments from July 1974 on. (See Hoos v. Hoos (1980), 86 Ill. App. 3d 817, 821, 408 N.E.2d 752.) As a consequence of this agreement, Sandra has no basis for claiming child support arrearages. The trial court’s refusal to enter judgment for Sandra on this issue was correct. Further, since we have found a contractual basis upon which to reject Sandra’s claim for arrearages, it becomes unnecessary for us to address her contention that the trial court erred in finding that laches and equitable estoppel barred her claim.

II

Sandra argues that the trial court abused its discretion when it prospectively modified Charles’ support obligations.

The modification of child support provisions rests in the sound discretion of the trial court and will not be interfered with in the absence of an abuse of that discretion or unless a manifest injustice has been done. (In re Whitney (1980), 90 Ill. App. 3d 734, 738, 413 N.E.2d 872.) Factors to be considered by the trial court in exercising its discretion include the financial resources of the children, the financial status of the custodial parent, the financial resources of the noncustodial parent, the standard of living the children would have enjoyed in the absence of the divorce, and the physical, emotional, and educational needs of the children. In re Marriage of Raidbard (1980), 87 Ill. App. 3d 158, 160, 408 N.E.2d 1021.

Testimony and stipulated evidence show that Sandra earns in excess of $1,260 net per month. She testified that her monthly household expenses are $1,481.90. Charles related that he nets $410 per week. Sandra lives in a house with no mortgage, valued by her at $50,000. She has no other assets. Charles has a mortgage and a baby. Sandra’s twins are in high school; her youngest daughter is in fifth grade. Sandra testified to special expenses for the children; it is unclear whether these expenses are included in her estimated monthly expenses figure. The trial court raised Charles’ support obligation to $350 per month from $226.34.

We are unconvinced by Sandra’s argument that this child support award is inadequate. Based upon Sandra’s relatively good income, the upcoming ability of the twins to commence part-time work, Charles’ needs for his second family, and the fact that the present award takes over 21% of Charles’ income, this court finds no abuse of discretion in the trial court’s modification of support order.

For these reasons, we affirm the judgment of the trial court.

Affirmed.

STAMOS and PERLIN, JJ„ concur.

       Charles changed his name to William Konn in 1973 or 1974.

       In her brief, Sandra also assigns error to the trial court’s refusal to enter a rule to show cause against Charles for his alleged arrearages and failure to submit pay stubs. First, our analysis above renders this issue moot since the agreement of the parties negated Charles duties for which Sandra sought the rule. Second, even if the rule were available, its purpose is solely to give the cited person the opportunity to show why he should not be held in contempt. Nothing in the record here indicates that Charles should be held in contempt.


text:
    JAMES PRINCIPATO, JR., Plaintiff-Appellee, v. HENRY RUDD et al., Defendants-Appellants.
    First District (2nd Division)
    No. 81-922
    Opinion filed November 24, 1981.

      Van Duzer, Gershon, Jordan & Petersen, of Chicago (Horace W. Jordan and Edward W. Maltzen, of counsel, for appellants.

      William D. Maddux & Associates, of Chicago (William D. Maddux and Bruce M. Lane, of counsel), for appellee.
   JUSTICE DOWNING

delivered the opinion of the court:

Defendants Henry Rudd, Marion Rudd, Rudd Container Company, and Anthony Reda appeal the granting of a new trial to plaintiff James Principato, Jr. Plaintiff filed a one-count negligence complaint concerning a truck collision. After a jury verdict for defendants, the trial court granted plaintiff’s motion for a new trial. We granted defendants leave to appeal under Supreme Court Rule 306. (73 Ill. 2d R. 306.) Plaintiff also appeals the trial court’s denial of his motion for judgment notwithstanding the verdict.

Plaintiff James Principato, Jr., was an electrician for Advance Neon Sign Company. He was injured on May 17,1974, while repairing a sign on Western Avenue in Chicago. Plaintiff was driving a 30-foot truck with a snorkel unit that extended about 42 inches beyond the truck when in a fully closed position. Plaintiff pulled the truck into a driveway, blocking the parking lane on Western Ave. The snorkel unit extended into the near traffic lane when closed, at a height of about 9 to 13 feet above the ground. Thus, cars passed under the extended boom. It is disputed whether or not a red flag was attached to the rear of the truck, and whether or not plaintiff placed a rubber warning cone in the street.

Plaintiff worked on the sign while sitting in the snorkel unit, raising it into the air. After he completed the repairs, plaintiff lowered the snorkel unit and locked it into place. He then noticed a handprint on the sign and briefly climbed a ladder affixed to the side of the truck to wipe the print.

Anthony Reda, defendant, was employed as a truck driver for defendant Rudd Container Company. While plaintiff was on the ladder, a truck driven by Reda hit a portion of plaintiff’s truck that extended from its body. Plaintiff was thrown into the air and landed on his back on the truck. He was taken to a nearby hospital.

The degree of plaintiff’s injuries was a matter greatly disputed at trial. It is undisputed that soon after the accident, plaintiff left his job at Advance Neon Sign Company and opened a small restaurant. This resulted in a loss of reported income. Two medical witnesses for plaintiff testified to injuries which weakened his back, precluding heavy work and bending. These injuries might be permanent. The defense did not call any medical witnesses.

In closing argument, plaintiff’s counsel asked for approximately $500,000 in damages. The jury returned a verdict for defendants. The trial court subsequently granted plaintiff’s motion for a new trial.

I

Initially, we dispose of plaintiff’s contention that the trial court erred in denying his motion for judgment notwithstanding the verdict. Employing the Pedrick standard (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504), we cannot say that the evidence, when viewed in the light most favorable to defendants, so overwhelmingly favors plaintiff that no contrary verdict based on the evidence could ever stand. Indeed, substantial issues of fact were presented to the jury, including whether or not plaintiff used a red warning flag and a rubber warning cone. The trial court properly denied plaintiff’s motion for judgment notwithstanding the verdict.

II

Plaintiff’s motion for a new trial was based on certain trial errors and on newly discovered evidence. The order granting plaintiff’s motion stated that plaintiff was granted a new trial on the issues of liability and damage. We therefore review all the grounds for a new trial urged by plaintiff in this court and properly preserved by the post-trial motion.

A.

The trial errors urged by plaintiff fall into three groups: (i) statements by defense counsel in the opening statement that were not supported by the evidence; (ii) defense counsel’s prejudicial references to workmen’s compensation during cross-examination; and (iii) the prejudicial remarks of defense counsel in closing argument. Plaintiff’s theory is that the cumulative effect of these errors, especially where the evidence was close, justifies the granting of a new trial.

Plaintiff’s complaints about defense counsel’s opening statement are, for the most part, unsubstantiated by the record. Counsel is given a certain latitude in the opening statement as to his expectation of what the evidence will prove. (Northern Trust Co. v. Skokie Valley Community Hospital (1980), 81 Ill. App. 3d 1110, 1124, 401 N.E.2d 1246.) Defense counsel’s opening statement fell within this range. Of the six statements specifically claimed as error by plaintiff, four were substantially correct statements of the evidence adduced at trial. One other statement was clearly wrong, but plaintiff’s counsel made the same misstatement in his opening statement, and it appears that both counsel misinterpreted the discovery evidence. The last statement, which concerned plaintiff’s dreams and ambitions, would have been more properly reserved for closing argument.

During cross-examination, defense counsel referred to workmen’s compensation twice. Once was during the cross-examination of plaintiff’s medical witness. Defense counsel asked the witness if he had occasion in the past to testify in court and before the “Illinois Workmen’s Compensation Commission.” No objection was made by plaintiff to this question. Thus, any claim of error is waived. (Vinke v. Artim Transportation System, Inc. (1980), 87 Ill. App. 3d 400, 413, 408 N.E.2d 1112, appeal denied (1980), 81 Ill. 2d 606.) The other reference was during the cross-examination of plaintiff’s employer, when defense counsel asked if the witness had seen certain reports “in connection with [plaintiff’s] claim against you for Workmen’s Compensation?” Plaintiff’s objection was sustained, and the trial court admonished the jury to disregard the statement.

Discussion of workmen’s compensation payments in a personal injury action by the injured employee against a third party requires the reconciliation of two competing interests. Evidence of such payments are generally not admissible as substantive evidence. (Bryntesen v. Carroll Construction Co. (1963), 27 Ill. 2d 566, 568, 190 N.E.2d 315.) On the other hand, it is proper to show that a witness has a financial interest in the litigation. Under the Workers’ Compensation Act, compensation paid to the employee must be repaid out of any recovery received by the employee from a third party. (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(b).) In reconciling these interests, the supreme court held that it is proper to cross-examine an agent of the employer regarding the existence of this potential recovery, but not the amount of it. (Sweeney v. The Max A. R. Matthews & Co. (1970), 46 Ill. 2d 64, 70-71, 264 N.E.2d 170.) At trial, out of the presence of the jury, defense counsel indicated to the court that he wanted to establish the existence, but not the amount of the recovery. Nevertheless, the trial court refused to allow any evidence of workmen’s compensation. Defense counsel should have been allowed to cross-examine the witness as requested.

Plaintiff complains of four statements made by defense counsel in closing argument. Plaintiff did not object to two of the statements; therefore, any complaint now is waived. (Mulvey v. Illinois Bell Telephone Co. (1973), 53 Ill. 2d 591, 598, 294 N.E.2d 689.) Objections to two other comments were made and sustained. First, defense counsel stated that plaintiff was wrong in asking for $500,000 for injuries that were not more than bumps and bruises. He continued:

“That’s-not the way these cases are to be tried. This is a Court of law. It is not a giveaway program, it’s not a welfare program.
MR. MADDUX: I object to that comment, your Honor.
THE COURT: Sustained.”

This statement was designed to arouse the prejudice or passion of the jury, and was thus improper. (See Regan v. Vizza (1978), 65 Ill. App. 3d 50, 53, 382 N.E.2d 409, appeal denied (1979), 72 Ill. 2d 585.) The thrust of the statement, however, goes to the amount of damages sought by plaintiff, not liability.

Second, defense counsel disparaged plaintiff’s expert witness with the remark, “[o]f course, they bring in this Dr. Fitzsimmons, a professional medical witness ** * Plaintiff’s objection was sustained. Defendant argues that this remark was proper by claiming that since Dr. Fitzsimmons was a “professional man” and was testifying as a medical expert, the remark was accurate and true. We believe the remark suggested that Dr. Fitzsimmons was a “professional witness,” and was thus improper. See Regan v. Vizza (1978), 65 Ill. App. 3d 50, 53; Mattice v. Klawans (1924), 312 Ill. 299, 309-10, 143 N.E. 866, cert. denied (1926), 271 U.S. 685, 70 L. Ed. 1151, 46 S. Ct. 637.

In sum, the trial errors in this case consisted of two improper statements by defense counsel in closing argument and an arguably improper statement in opening statement. A reviewing court will not reverse the granting of a new trial unless a clear abuse of discretion is affirmatively shown in the record. (Harrison v. Chicago Transit Authority (1977), 48 Ill. App. 3d 564, 566, 363 N.E.2d 81, appeal denied (1977), 66 Ill. 2d 630; Torrez v. Raag (1976), 43 Ill. App. 3d 779, 782, 357 N.E.2d 632, appeal denied (1977), 65 Ill. 2d 585.) The trial court is in a better position than the reviewing court to assess the prejudicial effect of improper conduct. Harrison, 48 Ill. App. 3d 564, 566; Torrez, 43 Ill. App. 3d 779, 783.

We believe that, based on the record, the trial court abused its discretion by granting a new trial in this case. Plaintiff cites Kolakowski v. Voris (1981), 94 Ill. App. 3d 404, 418 N.E.2d 1003, for the proposition that in a trial where the evidence is close, the quantity of error required for the granting of a new trial is less than in a case where the evidence is not close. We think the error in this case was slight and not sufficient to prejudice the jury. We must conclude that if the trial court’s decision to grant a new trial was based on the cumulative effect of trial errors, that decision cannot stand.

B.

Plaintiff also contends that he is entitled to a new trial because of newly discovered evidence. The new evidence consists of the testimony of George Beecher, an employee of Advance Neon Sign Company, who arrived at the scene of the accident shortly after it occurred. He would testify that he found the rubber cone under plaintiff’s truck, and that he found the flag on the ground and reattached it to the truck. Beecher also made numerous scale drawings of the scene of the accident. He also claims that he did not advise plaintiff of his investigation until after the jury verdict.

Applications for a new trial based on newly discovered evidence are not looked upon with favor and are subject to close scrutiny. (Halka v. Zupan (1979), 68 Ill. App. 3d 616, 620, 386 N.E.2d 439.) In order to obtain a new trial for such reason, it must appear that due diligence was used to discover and procure the evidence for trial. (Pritchett v. Steinker Trucking Co. (1968), 40 Ill. 2d 510, 512, 240 N.E.2d 684.) The rationale behind such a strict requirement is to prevent the losing party at trial from searching for more favorable evidence to present at another trial. (Pritchett, 40 Ill. 2d 510, 512-13.) Where the newly discovered evidence consists of testimony of the employees of the party seeking the new trial, it will rarely be said that such a party exercised due diligence in attempting to procure the evidence. Halka, 68 Ill. App. 3d 616, 620; Fugate v. Sears, Roebuck & Co. (1973), 12 Ill. App. 3d 656, 674-75, 299 N.E.2d 108, appeal denied (1973), 54 Ill. 2d 592.

Applying these principles to the facts in the instant case, we cannot say that plaintiff exercised due diligence in seeking this evidence. While Beecher was not an employee of plaintiff, he was an employee of plaintiffs employer. Plaintiffs employer fully cooperated with plaintiffs case as would be expected in light of their workmen’s compensation lien. It is difficult to understand how and why plaintiff could not have discovered this evidence before trial. If the trial court’s decision to grant a new trial was based on newly discovered evidence, the decision was an abuse of discretion.

In accordance with these views, the order of the circuit court of Cook County granting plaintiff’s motion for a new trial must be reversed, and this cause is remanded for the reinstatement of the jury verdict and entry of judgment thereon.

Reversed and remanded.

STAMOS and PERLIN, JJ., concur.


text:
    THE PEOPLE ex rel. TYRONE C. FAHNER, Attorney General, Plaintiff-Appellee, v. STEEL CONTAINER CORPORATION et al., Defendants-Appellants.
    First District (2nd Division)
    No. 81-1581
    Opinion filed November 24, 1981.

      Peter G. Frezados, of Chicago (Regas & Frezados, of counsel), for appellants.
    Tyrone C. Fahner, Attorney General, of Chicago (Douglas P. Karp, Assistant Attorney General, of counsel), for appellee, pro se.

   JUSTICE DOWNING

delivered the opinion of the court:

This is an interlocutory appeal, taken pursuant to Supreme Court Rule 307(a)(1) (73 Ill. 2d R. 307(a)(1)), from the circuit court’s entry of a preliminary injunction prohibiting defendants from transferring by any means certain realty located in Indiana and any shares of stock or other capital assets of defendant Steel Container Corporation or Calumet Container Corporation. Defendants contend that the circuit court abused its discretion in entering the injunction and that the injunction as entered was broader in scope than that requested by plaintiff.

Defendant Steel Container Corporation operates a drum and pail reconditioning facility on a site located at 3631 State Line, Hammond, Indiana. This site is adjacent to the Indiana-Illinois State border. Legal title to the site is held by defendant Mercantile National Bank of Indiana through a land trust under which defendant John J. Jagiella is the sole beneficiary. Defendant Indiana Harbor Belt Railroad Company owns a strip of land in Illinois which is contiguous to and due west of the Steel Container site.

On March 30, 1979, the Illinois Attorney General (plaintiff) filed a multicount complaint against deféndants based upon their alleged violations of various Illinois environmental protection statutes. Several amended complaints followed. Briefly, plaintiff seeks an injunction against continued alleged illegal waste dumping, an order requiring defendants to clean up any Illinois land contaminated by their activities, and penalties for violations of the noted statutes. Further detail concerning defendants’ activities will only be related as is necessary to disposition of the relatively narrow issues raised in this appeal.

Since the commencement of the action, the parties have proceeded through various pleading and discovery stages. On May 15, 1981, the parties attended a pretrial conference. At that time, plaintiff presented an “emergency motion for injunctive relief to restrain alienation of property.” Essentially, the motion sought a temporary restraining.order (TRO) (Ill. Rev. Stat. 1979, ch. 69, par. 3 — 1) which would “immediately enjoin Defendants from selling, transferring or alienating any property” located at the Steel Container site. The motion was based in part upon information plaintiff had just acquired that an Indiana realtor possessed the exclusive right to sell the Steel Container site, which information supported plaintiff’s self-styled “reasonable belief” that defendants were in the process of attempting to sell the site.

On May 18,1981, during the hearing on the motion, plaintiff learned, allegedly for the first time, that shares of defendant Steel Container had been sold to a stranger to the litigation, and that this person had an agreement to purchase additional shares. It appeared that this person was not immediately subject to the court’s jurisdiction. On May 18, the court granted the TRO, therein additionally enjoining defendants from “selling, transferring, alienating or otherwise disposing of any ownership in any shares of stock” in Steel Container or “Calumet Container Corporation” (which firm does not otherwise appear to be a party to these proceedings), for a period of 10 days.

On June 1, 1981, defendants filed a motion to dissolve the TRO of May 18. As grounds, defendants alleged that plaintiff failed to demonstrate facts which showed that an irreparable injury would occur without entry of the injunction. Defendants also argued that the injunction went beyond the relief requested by plaintiff by preventing the transfer of stock in Steel Container. Consequently, defendants requested dissolution of the May 18 “temporary injunction.” On that date, plaintiff filed a response to defendants’ motion and also filed a motion for a preliminary injunction, based upon the facts alleged in its earlier motion for emergency relief and those alleged in its response to defendants’ motion to dissolve. At the hearing on these motions, defendants’ attorney could not inform the court whether the prospective buyers of Steel Container stock were United States citizens. The court responded by expressing its concern that the new buyers might file for corporate bankruptcy, return to their place of citizenship, and cause the court to “lose jurisdiction over them” for the purpose of enforcing any decree which might be entered. The court thus denied defendants’ motion to dissolve the May 18 TRO and granted plaintiff’s motion for a preliminary injunction. The latter segment of the order was identical in terms to the May 18 order. From this result, defendants appeal.

I.

Defendants assert that the circuit court erred in “the granting of the preliminary injunction” because plaintiff failed to demonstrate that the elements necessary for such order to issue were present in this case. We consider the question of the propriety of the May 18 TRO to have become subsumed into the question of the propriety of the June 1 preliminary injunction. Consequently, our analysis will focus upon the latter order.

A.

In order for a preliminary injunction to issue, the plaintiff must establish (i) that he possesses a clearly ascertainable right which needs protection, (ii) that he will suffer irreparable harm without the injunction, (iii) that there is no adequate remedy at law for his injury, and (iv) that he is likely to be successful on the merits of his action. Generally, the court should also conclude that the grant of the temporary relief outweighs any possible injury which the defendant might suffer by its issuance. (Cross Wood Products, Inc. v. Suter (1981), 97 Ill. App. 3d 282, 284-85, 422 N.E.2d 953.) An injunction is an extraordinary remedy which is not granted as a matter of course. (Distaola v. Department of Registration & Education (1979), 72 Ill. App. 3d 977, 980, 391 N.E.2d 489.) The circuit court’s issuance of an injunction will not be set aside absent a showing of an abuse of that court’s discretion. Dayan v. McDonald’s Corp. (1978), 64 Ill. App. 3d 984, 987, 382 N.E.2d 55.

We find defendants’ contention that plaintiff failed to show irreparable harm in the absence of injunctive relief to be dispositive of this appeal.

An application for a preliminary injunction must specify all facts necessary to justify the unusual relief sought. These facts must be alleged with certainty and precision. (Hall v. Orlikowski Construction Co. (1974), 24 Ill. App. 3d 60, 63, 321 N.E.2d 23.) It is incumbent upon the plaintiff to allege in particular terms the irreparable harm. (Glen Ellyn Savings & Loan Association v. Tsoumas (1976), 41 Ill. App. 3d 292, 294, 354 N.E.2d 53; Mingare v. DeVito (1978), 67 Ill. App. 3d 371, 373, 385 N.E.2d 20.) Mere conclusions are inadequate. Whitaker v. Pierce (1976), 44 Ill. App. 3d 148, 150, 358 N.E.2d 61, appeal denied (1977), 65 Ill. 2d 585, cert. denied (1977), 434 U.S. 837, 54 L. Ed. 2d 99, 98 S. Ct. 127.

Examination of the relevant pleadings and of the evidence produced at the hearings convinces us that plaintiff has failed to comply with these essential pleading requirements. Plaintiff alleges in conclusory form that transfer of defendants’ property would “prejudice the Plaintiff and frustrate the relief requested and the ends of justice,” and would cause “irreparable harm and the ends of justice would be obstructed.” In his brief, plaintiff asserts that without the preservation of “the assets of the defendant corporation, 0 * * the State most likely will be left with the choice of paying for the clean-up through its own tax revenues or allowing portions of Illinois land and water to remain or become polluted.” However, this theory was not argued below. As well, nothing in the record shows that defendants’ assets would become unavailable in the absence of the injunction so that defendants would be incapable of complying with any order which might result from this case. Plaintiff’s presentation of this element and the court’s consideration thereof both made inferential leaps of logic that such circumstances would result, but neither was based upon matters of record. In this court’s opinion, the pleadings and proof of this case are inadequate to demonstrate that plaintiff is in danger of irreparable harm without the injunction, and that the injunction is warranted. The circuit court erred in granting the preliminary injunction for this reason. Compare Dixon v. Village of Lombard (1977), 50 Ill. App. 3d 590, 365 N.E.2d 1131, appeal denied (1977), 66 Ill. 2d 629, with Sports Unlimited, Inc. v. Scotch & Sirloin of Woodfield, Inc. (1978), 58 Ill. App. 3d 579, 374 N.E.2d 916.

B.

Our disposition of the appeal in this manner renders it unnecessary for us to deeply scrutinize defendants’ remaining claims. However, since we find it likely that plaintiff might seek another injunction upon remand, we believe some comment upon these matters is warranted.

Defendants assert that plaintiff has not established any clearly ascertainable right requiring the protection of injunctive relief. We note the presence of a statutory scheme aimed at restoring, enhancing, and protecting the quality of the Illinois environment. (See Ill. Rev. Stat. 1979, ch. 111½, par. 1002(b).) Plaintiff has the legal authority to foster these goals through legal action. (Ill. Rev. Stat. 1979, ch. 14, par. 12.) A fair reading of plaintiff’s amended complaint demonstrates that he has relied upon these statutes in instituting this action. We find the aim of protecting the environment, as espoused in these laws, to be a clearly ascertainable right requiring injunctive protection.

Defendants claim that plaintiff has failed to establish the absence of an adequate remedy at law, citing lis pendens as an alternative legal theory of relief. We note that a court must have jurisdiction over the property involved in order for the doctrine of lis pendens to apply. (Norris v. Ile (1894), 152 Ill. 190, 202, 38 N.E. 762.) Here, the realty involved is situated in Indiana. Plaintiff must have proceeded against the property in that State in order for the doctrine to be applicable. This is not an adequate remedy at law as that terminology has been defined. See Cross Wood Products, Inc. v. Suter (1981), 97 Ill. App. 3d 282, 286.

Defendants’ assertion that plaintiff has not shown the likelihood of success on the merits is similarly without basis. The merits which are viewed are those of the underlying cause of action, and not the merits of the preliminary injunction motion. Thus, the question is whether the facts show a likelihood that plaintiff will succeed in having defendants ordered to clean up the pollution they allegedly caused and in being permanently enjoined from causing further environmental damage. The allegations of plaintiff’s complaint and the actions taken by the circuit court thereupon prior to entry of the preliminary injunction indicate that plaintiff has a reasonable likelihood of achieving the relief sought in the complaint. In our opinion, the record contains a sufficient showing of the requisite likelihood that plaintiff could succeed on the merits of the case so as to permit entry of the injunction. See generally Kable Printing Co. v. Mount Morris Bookbinders Union Local 65-B (1976), 63 Ill. 2d 514, 523, 349 N.E.2d 36; Wessel Co., Inc. v. Busa (1975), 28 Ill. App. 3d 686, 690, 329 N.E.2d 414, appeal denied (1975), 60 Ill. 2d 602.

Defendants also argue that plaintiff made no effort to show the circuit court that the balance of the hardships weighed in his favor. As noted by plaintiff, this doctrine is inapplicable where defendants’ actions were done with full knowledge of the plaintiff’s rights and with an understanding of the consequences which might ensue. (ABC Trans National Transport, Inc. v. Aeronautics Forwarders, Inc. (1978), 62 Ill. App. 3d 671, 682-83, 379 N.E.2d 1228, appeal denied (1978), 71 Ill. 2d 616.) The record here shows that defendants allegedly engaged in acts of pollution after commencement of this lawsuit. Consequently, there was no need for the court to balance the equities in this case prior to resolving the injunction request.

C.

Finally, we find the above discussion to have obviated the need for us to address defendants’ concerns with the scope of the injunctive relief granted.

For the foregoing reasons, we dissolve the preliminary injunction entered by the circuit court and remand the case for further proceedings consistent herewith.

Reversed and remanded.

HARTMAN, P. J, and PERLIN, J., concur.

       The statutes in question include “An Act in Relation to the Prevention and Abatement of Air, Land and Water Pollution” (Ill. Rev. Stat. 1979, ch. 14, pars. H, 12), and the Illinois Environmental Protection Act (Ill. Rev. Stat. 1979, ch. 111½, par. 1001 et seq.).

         Apparently, defendants John Jagiella and Frank Jagiella did business as Calumet Container from 1970 to 1974 and likewise allegedly caused environmental damage at and near the site.

       That the May 18 order was of such limited duration does not appear on the face of the order. However, the transcript of the hearing which resulted in the entry of the TRO indicates that the order was to last for 10 days.

         Concerning the propriety of the circuit court’s refusal to dissolve the May 18 temporary restraining order, we note that the order expired by its own terms after ten days and was replaced by the preliminary injunction. Nothing in the record demonstrates the existence of any damages to defendants from the TRO. In such circumstances, a reversal on this issue would have no practical effect on the controversy. The issue may thus be left unaddressed. See City of Chicago v. Airline Canteen Service, Inc. (1978), 64 Ill. App. 3d 417, 380 N.E.2d 1106, appeal denied (1979), 72 Ill. 2d 581.

       We offer no view as to whether plaintiff, on remand, could allege or prove facts sufficient to demonstrate irreparable harm. We simply hold that such facts are not alleged or proved in the record before us.


author: JUSTICE LINN

text:
    MICHAEL SABATINO, Plaintiff-Appellee, v. KOZY KOTTAGE INN, INC., Defendant-Appellant.—(JOHN DOE et al., Defendants.)
    First District (4th Division)
    No. 80-1886
    Opinion filed November 25, 1981.

      O. Kenneth Thomas, Ltd., of Harvey, for appellant.
    Luciano Panici, of John L. Cifelli & Associates, Ltd., of Chicago Heights, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Michael Sabatino, brought a dramshop action against the defendants, Kozy Kottage Inn, Inc., an Illinois corporation, and John Doe and Jim Doe, unknown persons. Subsequent to the service of summons on the corporate defendant, plaintiff’s cause of action was dismissed for want of prosecution. Thereafter plaintiff filed a section 72 petition and motion to vacate the order of dismissal, which the trial court granted. The corporate defendant appeals, contending that the trial court erred by granting plaintiff’s motion because the petition was insufficient to support the motion, and there was no service of the petition upon the defendants.

On February 5, 1979, plaintiff filed his complaint to recover for personal injuries sustained by him in a battery. Subsequent to service on its registered agent, the corporate defendant filed its appearance and answer denying the material allegations of the complaint; the individual defendants were never personally served. By order of court a pretrial conference was set for October 26,1979; it was continued to December 17,1979, and later to January 22,1980, when an order was entered dismissing the cause of action for failure to appear at the pretrial conference.

Thereafter, on January 24, 1980, the corporate defendant filed its request for the production of witnesses’ statements in the plaintiff’s possession; and on March 19, 1980, it filed a motion to add the assaulting party to the action as a third-party defendant. On March 20, 1980, the plaintiff filed his answer to the corporate defendant’s request for documents.

On April 2,1980, the plaintiff filed a section 72 petition and motion to vacate the order of dismissal entered on January 22, 1980. This petition and motion were withdrawn on April 7,1980. However, the petition was refiled on April 14,1980, and notice that it was set for hearing on May 7, 1980, was served on the registered agent of the corporate defendant. At the hearing on plaintiff’s section 72 petition, the trial court vacated the order of dismissal for want of prosecution and reinstated the plaintiff’s cause of action.

The corporate defendant first contends that plaintiff’s section 72 petition was insufficient as a matter of law because he failed to set forth a factual basis for his allegation that he had a meritorious cause of action. It has been held that a petition under section 72 must state facts which allegedly entitled the petitioner to have the order or judgment vacated, and that these facts are not those which form the basis for the original action. (Reuben H. Donnelley Corp. v. Thomas (1979), 79 Ill. App. 3d 726, 398 N.E.2d 972.) Where the defendant did not answer or contest the plaintiff’s petition in the trial court, the allegations set forth in the petition must be taken as true. (Esczuk v. Chicago Transit Authority (1967), 84 Ill. App. 2d 247, 228 N.E.2d 553.) Here, to require that plaintiff set forth a factual basis for his allegation that he had a meritorious cause of action could only apply to the facts which form the basis of the original action. Further, the record shows that defendant did not answer the plaintiff’s petition in the trial court, and there is no showing that it contested the petition. For these reasons, this contention of the defendant is without merit.

The corporate defendant next contends that plaintiff’s allegations of clerical error are insufficient to support a section 72 petition, since the statutory relief is not intended to relieve a party from the consequence of his own mistake or negligence. A petition or motion to vacate a judgment pursuant to section 72 is addressed to the equitable powers of the court (Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 190 N.E.2d 348); whether or not the relief prayed for should be granted rests in the sound discretion of the trial court, depending upon the facts and equities presented, and upon review the court is justified in disturbing the decision of the trial court only when it finds that there is an abuse of discretion. (Resto v. Walker (1978), 66 Ill. App. 3d 733, 383 N.E.2d 1361.) Accordingly, it has been held that justice and fairness may require that a judgment be vacated even though the requirement of due diligence has not been satisfied. Manny Cab Co. v. McNeil Teaming Co. (1975), 28 Ill. App. 3d 1014, 329 N.E.2d 376; George F. Mueller & Sons, Inc. v. Ostrowski (1974), 19 Ill. App. 3d 973, 313 N.E.2d 684.

Here, the record does not show that the corporate defendant raised this issue in the trial court. However, the record does show that the defendant filed a discovery action and a motion to add a third-party defendant to the cause of action in the trial court subsequent to the date of dismissal. It is well established that where a court loses jurisdiction because 30 days have passed after a dismissal, the parties may, by appearing voluntarily and participating in further proceedings, revest the court with jurisdiction. The elements essential to revesting are active participation by the parties without objection in further proceedings inconsistent with the prior order of dismissal. (Faust v. Michael Reese Hospital Medical Center (1979), 79 Ill. App. 3d 69, 398 N.E.2d 287; Halleck v. Trumfio (1980), 85 Ill. App. 3d 1051, 407 N.E.2d 867.) In view of the circumstances herein, we hold that the corporate defendant cannot raise this issue for the first time on review, and further that the trial court did not abuse its discretion herein.

Finally, the corporate defendant contends that the plaintiff failed to effect proper service upon it when the notice of hearing on the petition was sent to its registered agent by ordinary mail. Plaintiff replies that service was effected by certified mail upon the registered agent of the corporation, and further that the corporate defendant failed to object to the service of the petition by such method when it appeared in court by its attorney in response thereto. The order entered by the trial court on May 7, 1980, recites “due notice given, and the Court fully advised.” In the margin of the order the attorney for the registered agent of the corporate defendant made a notation that the order was “O.K. as to form.” The record does not contain a transcript of the proceedings at that hearing, but it is assumed, by reason of the recitation in the court order, that this defendant made a general appearance, and the question of improper notice was not raised. It has been held that any defects in the service of a section 72 petition as required by the provisions of Supreme Court Rule 106 (Ill. Rev. Stat. 1979, ch. 110A, par. 106) are waived when the defendant generally appears in court on the petition. (See Slade v. Bowman (1977), 49 Ill. App. 3d 242, 364 N.E.2d 922.) We therefore hold that the corporate defendant waived its right to raise this issue.

The order of the circuit court of Cook County vacating the order of dismissal and reinstating the cause of action is therefore affirmed.

Affirmed.

ROMITI, P. J, and JOHNSON, J., concur.


author: JUSTICE McNAMARA

text:
    JAMES BULLOCK, Plaintiff-Appellant, v. JOHN R. ADAMS, Defendant-Appellee.
    First District (3rd Division)
    No. 80-2341
    Opinion filed November 25, 1981.
    Rehearing denied December 18, 1981.
    Lance Haddix, of Chicago, for appellant.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith and Michael R. Goldman, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, James Bullock, appeals from an order of the trial court dismissing with prejudice his complaint for money damages from defendant, Dr. John R. Adams. The complaint alleged that defendant, a psychiatrist, made an incorrect diagnosis of plaintiff and that as a result of wrongful communication of that diagnosis to plaintiff’s employer, plaintiff was discharged from his employment.

On August 31, 1979, pursuant to Supreme Court Rule 216 (Ill. Rev. Stat. 1979, ch. 110A, par. 216), defendant filed a request of plaintiff to admit certain material facts. On November 9, 1979, plaintiff filed a response refusing to admit the statements contained in the request because the statements were over simplified and of a broad and general nature. Defendant thereafter moved to strike plaintiff’s response and requested that the facts stand admitted because the response was not timely filed and failed to conform to the requirements of the rule. Plaintiff filed no response to this motion. On January 25, 1980, the court, in an order reciting that counsel had been heard, granted defendant’s motion and ordered the facts stand admitted.

On May 2, 1980, plaintiff’s counsel was granted leave to withdraw and the court ordered plaintiff to obtain new counsel or to appear pro se within 56 days. On August 5, 1980, the court conducted a hearing on defendant’s motion to dismiss the complaint for plaintiff’s failure to comply with the May 2 order. New counsel appeared for plaintiff, was allowed to file an appearance and was given time to file an amended complaint. Plaintiff then informed the court that he could not go forward with the case as long as the matters in the request stood admitted. The court replied that the case would go forward as it was or it would be dismissed. Upon the plaintiff’s unwillingness to proceed wth the case in that posture, the court dismissed the action.

Plaintiff has appealed from the order of dismissal, but on appeal focuses upon the interlocutory order striking his response to the request to admit facts and ordering the facts to stand admitted. Yet, the interlocutory order was proper since Supreme Court Rule 216 requires that upon passage of 28 days without either a denial or objection from the opposing party, the facts contained in the request to admit automatically stand admitted. (Chapman v. Foggy (1978), 59 Ill. App. 3d 552, 375 N.E.2d 865; Banks v. United Insurance Co. of America (1975), 28 Ill. App. 3d 60, 328 N.E.2d 167.) In view of plaintiff’s failure to comply with the rule, the interlocutory order that the facts stand admitted merely reflected the effect of the operation of the law. More importantly, the interlocutory order did not require judgment for defendant nor was it the basis of judgment. Plaintiff sought no other relief, but simply refused to go ahead. In view of the unwillingness of plaintiff to proceed with the case, the trial court had no alternative but to dismiss the cause. See Pease v. Herb Julian Cab Co. (1972), 7 Ill. App. 3d 179, 287 N.E.2d 200.

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

Judgment affirmed.

RIZZI, P. J., and McGILLICUDDY, J., concur.


text:
    JOAN C. MARCINIAK et al., Plaintiffs-Appellants, v. JOSEPH S. O’CONNOR, M.D., Defendant-Appellee.
    First District (4th Division)
    No. 80-2372
    Opinion filed November 25, 1981.

      William J. Harte, Ltd., of Chicago (William J. Harte, of counsel), for appellants.
    Michael J. Smith and Marc D. Ginsberg, both of Tenney & Bentley, of Chicago, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

On February 2, 1979, plaintiffs, Joan Marciniak and her husband Eugene, filed suit against defendant, Joseph S. O’Connor, M.D., in the circuit court of Cook County. Count I of the complaint alleged that defendant negligently failed to diagnose and treat Joan Marciniak’s breast cancer. In count II, Eugene Marciniak sought damages for loss of consortium. On May 16, 1980, defendant filed his motion for summary judgment, contending that plaintiffs’ action was not filed within the two-year statutory time provided for medical malpractice claims. (Ill. Rev. Stat. 1979, ch. 83, par. 22.1.) On July 31,1980 the trial court granted defendant’s motion for summary judgment.

Plaintiffs’ appeal asserted that when the statute of limitations began to run is an issue of material fact to be decided by the trier of fact, and accordingly it was error for the trial court to decide the issue by summary judgment as a matter of law.

We agree, and reverse and remand.

Facts

On May 11, 1976, defendant, who limited his practice to obstetrics and gynecology, examined Joan Marciniak. The examination disclosed a lump in her right breast. Defendant, who had been her physician for many years, advised her that the lump was “something hormonal” and told her not to worry about it.

In December 1976, Joan Marciniak became aware of an increasing sense of heaviness in the breast. She had seen a television program which suggested that a lump in the breast could be very serious for women of her age, and that they are not always properly diagnosed. She became concerned that the lump was more serious than she had been led to believe.

Joan Marciniak returned to defendant for another examination on January 21, 1977. He told her the lump was a small mass and a biopsy should be done. He referred her to Dr. David P. Winchester, who advised her that she had a breast tumor which he felt was “highly suspicious” and probably malignant. The tumor had to come out, whether it was malignant or not. Aspiration cytology was done, and a mammogram and preadmission testing were ordered. Dr. Winchester scheduled a right radical mastectomy for her on January 29, 1977. She subsequently cancelled the scheduled surgery.

On January 24,1977, Dr. Winchester’s secretary received a laboratory report of Joan Marciniak’s breast smear which stated that Joan Marciniak suffered from carcinoma. Dr. Winchester’s secretary later set forth in her affidavit filed in support of the defendant’s motion for summary judgment that Joan Marciniak called that day to cancel the scheduled surgery, and during their conversation she informed Joan Marciniak that the laboratory report indicated carcinoma of the breast. Joan Marciniak denies she was told of the results of the laboratory report.

On February 3, 1977, Joan Marciniak was admitted to Lutheran General Hospital by another surgeon of her own choice. The next day, February 4, her breast was removed and she and her husband learned that she had cancer., Both of them contend that this was the date on which they first knew or had reason to know that defendant had negligently failed to diagnose her condition, and consequently had committed medical malpractice. Joan Marciniak alleges that as a result of the delay in treatment of her cancerous condition, she now suffers from metastatic disease emanating from the breast, and is undergoing extensive chemotherapy and radiotherapy to arrest the process. She and her husband seek damages from defendant.

Chronology

May 11, 1976 Joan Marciniak examined by Dr. O’Connor. Diagnosis: lump in breast is hormonal.

December, 1976 Joan Marciniak watched television program on breast cancer.

January 21,1977 Joan Marciniak again examined by Dr. O’Connor, who recommended biopsy and referred her to Dr. Winchester.

January 21, 1977 Joan Marciniak examined by Dr. Winchester. Diagnosis: Breast tumor, highly suspicious, probably malignant. Mastectomy scheduled for January 29, 1977.

January 24, 1977 Dr. Winchester’s secretary received laboratory report indicating malignancy. Joan Marciniak can-celled the scheduled surgery. Secretary alleged she told Joan Marciniak lab report indicated carcinoma.

February 3,1977 Joan Marciniak admitted to hospital by new physician.

February 4, 1977 Radical mastectomy performed. Joan Marciniak and husband advised of cancerous condition.

February 2,1979 Suit filed by Joan Marciniak and husband.

July 31,1980 Dr. O’Connor’s motion for summary judgment granted.

August 29,1980 Notice of appeal filed by Joan and Eugene Marciniak.

Opinion

The only issue presented for review is whether the trial court correctly determined that, as a matter of law, plaintiffs failed to bring their action against defendant within the statutory period of limitations:

“No action for damages for injury or death against any physician or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, * * * of the existence of the injury * * * for which damages are sought ° ° Ill. Rev. Stat. 1979, ch. 83, par. 22.1.

This statute has been construed to mean that the limitations period begins to run when the injured person is or should be aware of (1) the nature of the physical injury and (2) the possibility that someone is at fault for it. (Gaudynski v. Corbett (1980), 81 Ill. App. 3d 910, 401 N.E.2d 1218; Roper v. Markle (1978), 59 Ill. App. 3d 706, 375 N.E.2d 934.) Thus, the question of fact presented in this case is when Mrs. Marciniak learned or should have learned of her injury, and knew that it might have resulted from the negligence of Dr. O’Connor.

The trial court held that as a matter of law the coincidence of these two elements occurred in December 1976, when the television program on breast cancer caused Joan Marciniak to think, “My God, is it possible that this lump is more serious than I was led to believe?” Plaintiffs contend that discovery of the injury and causation did not occur until after the surgery on February 4,1977.

The trial court, after considering defendant’s summary judgment motion, the supporting affidavits, and the deposition of Joan Marciniak, granted defendant’s motion for summary judgment on the ground that plaintiffs’ action, filed on February 2,1979, was not filed within two years of the time she discovered or should have discovered her injury and the fact that the defendant was responsible for it.

The order granting summary judgment cites Ikenn v. Northwestern Memorial Hospital (1979), 73 Ill. App. 3d 694, 392 N.E.2d 440, which held that the trial court properly decided the questions of knowledge and causation as a matter of law, and affirmed dismissal of the action as not being timely filed. The plaintiff in Ikenn had been blind since infancy. She contended she first learned at the age of 22, when a magazine article was read to her, that her blindness was caused by the improper medical care she received immediately following her premature birth. However, the court concluded as a matter of law that she should have learned merely by making inquiry before her twentieth birthday that her blindness could have been caused by the wrongful conduct of another.

In this appeal, plaintiffs correctly point out that the trial court’s reliance on Ikenn is misplaced. Ikenn limited its holding that the time of discovery of an injury may be determined as a matter of law to those cases in which the nature of the physical problem itself imparted constructive knowledge that the injury was caused by another’s wrongful act. The Ikenn court said “plaintiff’s blindness was the type of physical problem which imparted constructive knowledge that it was the result of a traumatic event occasioned by another’s wrongful act.” (Emphasis added.) (73 Ill. App. 3d 694, 699, 392 N.E.2d 440, 444.) A progressive disease process such as Joan Marciniak’s cancer is not the result of a traumatic event, and thus not the type of injury described in Ikenn.

Clearly Joan Marciniak was afraid in December 1976 that she had cancer. But she had been told by defendant, who had been her physician for many years, not to worry about the lump in her breast. We think the question of whether her fear outweighed her reliance on Dr. O’Connor’s opinion is a question of fact which should be submitted to a jury.

Another question is raised by the affidavit of Dr. Winchester’s secretary regarding what information was conveyed during her January 24, 1977, telephone conversation with Joan Marciniak. The secretary alleges that she told Joan Marciniak the laboratory report indicated carcinoma of the breast, while Joan Marciniak denies that she was informed of that result. Another issue of fact is thus raised which should be decided by the trier of fact and cannot be disposed of by summary judgment as a matter of law.

Section 57(3) of the Civil Practice Act (111. Rev. Stat. 1979, ch. 110, par. 57(3)) provides that summary judgment is appropriate “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” For summary judgment to be granted, the right of the moving party must be clear, free from doubt, and determinable solely as a matter of law. (Kitsos v. Terry’s Chrysler-Plymouth, Inc. (1979), 70 Ill. App. 3d 728, 388 N.E.2d 1054; O’Brien v. Kawazoye (1975), 27 Ill. App. 3d 810, 327 N.E.2d 236.) In making its ruling the trial court must construe the pleadings strictly against the moving party and in favor of the nonmoving party. Harris Trust & Savings Bank v. Joanna-Western Mills Co. (1977), 53 Ill. App. 3d 542, 368 N.E.2d 629; Baier v. State Farm Insurance Co. (1975), 28 Ill. App. 3d 917, 329 N.E.2d 543.

Summary judgment is a drastic way to dispose of litigation (Green v. McClelland (1973), 10 Ill. App. 3d 350, 293 N.E.2d 629), and therefore should be awarded only with due caution. (Kitsos v. Terry’s Chrysler-Plymouth, Inc.; Rivan Die Mold Corp. v. Stewart Warner Corp. (1975), 26 Ill. App. 3d 637, 325 N.E.2d 357.) Where any doubt exists as to the right of the movant to summary judgment, i.e., where fair-minded people could draw different inferences from the facts presented, the better judicial policy is to submit the issue to a trier of fact for resolution. Harris Trust & Savings Bank v. Joanna-Western Mills Co.; Armagast v. Medici Gallery & Coffee House, Inc. (1977), 47 Ill. App. 3d 892, 365 N.E.2d 446.

“[T]he preferred rule is that the cause of action accrues when the plaintiff knows or reasonably should know of an injury and also knows or reasonably should, know that the injury was caused by the wrongful acts of another.” (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 169, 421 N.E.2d 864, 868.) It is our opinion that reasonable people could disagree about when Joan Marciniak’s; awareness of her condition met these dual requirements. It would not be unreasonable to find that she made the discovery after her surgery on February 4,1977.

For the reasons set forth, we therefore reverse the summary judgment in favor of the defendant and remand the cause for determination by a trier of fact of when the statute of limitations began to run.

Reversed and remanded.

ROMITI, P. J., and JIGANTI, J., concur.