author: JUSTICE WOODWARD

text:
    RANDY FOLK, d/b/a Folk Blacktop Concrete Construction, Plaintiff and Counterdefendant-Appellee, v. CENTRAL NATIONAL BANK AND TRUST COMPANY OF ROCKFORD, n/k/a United Bank of Illinois, as Trustee, et al., Defendants (Byron Dragway, Inc., Defendant and Counterplaintiff-Appellant).
    Second District
    No. 2 — 90—0025
    Opinion filed November 8, 1990.
    — Modified on denial of rehearing March 7, 1991.

      William P. Fearer II and Elizabeth A. Hegel, both of Fearer, Nye, Ahlberg & Chadwick, of Oregon, for appellant.
    David A. Smith and Robert T. Hanson, both of Moehle, Smith & Nieman, P.C., of Oregon, for appellee Randy Folk.
    Lisa A. Treviranus and Richard A. Palmer, both of Ward, Murray, Pace & Johnson, P.C., of Sterling, for appellee Oregon Stone, Inc.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, Byron Dragway, Inc., appeals from a judgment of the circuit court of Ogle County, wherein it found that plaintiff, Randy Folk, d/b/a Folk Blacktop Concrete Construction, had substantially performed its contract with defendant and, thus, ordered the enforcement of plaintiffs mechanic’s lien. On appeal, defendant, Byron Drag-way, raises two issues, namely, whether plaintiff substantially performed said contract and whether the trial court erred in considering its personal inspection of the subject dragway as part of the evidence.

Defendant is a corporation engaged in the auto dragway business in Byron, Illinois. Byron Dragway is the sole owner of the beneficial interest in the land trust holding title to the real estate upon which the subject dragway is located.

In 1986, defendant’s insurance carrier informed defendant’s president, Ronald L. Leek, that concrete retaining walls would be required at the dragway for insurance purposes. Because the surface of the dragway was 25 years old, defendant decided to resurface it and install electronic timing equipment, prior to the installation of the required concrete walls. Early in 1987, defendant secured financing for the improvements from United Bank of Southgate (Bank) and began soliciting bids for the proposed improvements at the dragway.

On or about July 10, 1987, plaintiff submitted to Mr. Leek a written proposal, which described the contemplated improvements to make certain improvements to the dragway described as follows:

“A. Saw cut out a 400’ X 20’ area in each lane, rip out and haul to South end of track.

B. Grade area’s [sic] for 6” of concrete.

C. Install steel rebar the same as it was when we tore it out.

D. Pour six inches of concrete in each lane and finish.

PRICE: $24,250

Concrete Walls

A. Pour concrete walls as we discussed them for eleven dollars a foot. Anchoring them to old blacktop is open until I know for sure how you want it.

Blacktop Work

A. Fill all cracks and low spots so it is level.

B. Pave a IV2 hot mix matt in the area South of the stag-

. ing lanes and 84’ wide all the way down the track.

PRICE: $86,400

WE [sic] will fix bad spots while we are there with any leftover hot mix.”

Thereafter, Leek orally accepted said proposal submitted to him by plaintiff. Plaintiff was to be paid upon completion of the construction.

Plaintiff then contracted with Oregon Stone, Inc. (asphalt), Beeline Ready-Mix (concrete), and Tom O’Day (concrete walls), each of whom supplied plaintiff with material services for use in the drag-way’s improvements.

Near completion of the construction, plaintiff submitted a modified proposal to Byron Dragway reflecting a discount for not applying primer to the old surface prior to the laying of the new surface and for paving less area than the contract required. Plaintiff also submitted an invoice for extra work and requested payment of said sums.

Thereupon, Leek spoke to the Bank concerning payment to plaintiff. The Bank refused to release funds to pay plaintiff due to the apparent defects in the asphalt and concrete surfaces. After several meetings and upon presentation of a letter from plaintiff stating that he would replace the concrete pad subsequent to the racing season, the Bank stated that it would release funds only if plaintiff would secure bonding and insurance. Plaintiff refused to provide evidence of bonding and insurance, and as a result, the Bank refused to release funds to pay for the new construction due to the dragway’s defective condition.

On October 8, 1987, plaintiff filed a complaint for foreclosure of mechanic’s lien against the dragway, subcontractors Oregon Stone, Inc., Beeline Ready-Mix, Tom O’Day, and the Bank. In response thereto, on April 25, 1988, defendant filed its answer and counterclaim against plaintiff for breach of contract as a result of plaintiff’s failure to perform the terms of the contract in a workmanlike manner. The subcontractors, Oregon Stone, Inc., Beeline Ready-Mix, and Tom O’Day, filed answers and cross-complaints for foreclosure of mechanic’s lien for materials and services provided in the new construction. The Bank also filed an answer and cross-claim for foreclosure.

A bench trial was held April 11, 1989, through April 14, 1989. At the conclusion of the parties’ cases in chief, the trial judge personally inspected the disputed improvements at the dragway. On June 2, 1989, the trial court issued a memorandum decision stating that plaintiff had substantially performed the terms of its contract with defendant. On August 18, 1989, the trial court entered a judgment of foreclosure and sale in favor of plaintiff and the subcontractors and against defendant in the amount of $140,272.48 plus interest. The judgment amount included a credit of $25,120 for plaintiff’s failure to apply primer and to pave properly certain areas as specified by the contract.

On September 13, 1989, defendant filed its motion after judgment which was denied by the trial court on December 13, 1989. This appeal followed.

We initially address the issue of whether the court below erred in finding that plaintiff substantially complied with the contract and, therefore, found that its mechanic’s lien should be enforced.

As a general rule, although a mechanic’s lien claimant must show performance of the contract as a prerequisite to enforcement of the lien, substantial performance of the contract made in good faith will generally entitle the contractor to maintain his suit to enforce his lien. (Ruddy v. McDonald (1910), 244 Ill. 494, 499.) A contractor must prove that there was an honest and faithful performance of the contract in its material and substantial parts, with no willful departure from, or omission of, the essential elements of the contract. (Delta Construction, Inc. v. Dressler (1978), 64 Ill. App. 3d 867.) A contractor is not required to perform perfectly, but rather is held only to the duty of substantial performance in a workmanlike manner. (Watson Lumber Co. v. Guennewig (1967), 79 Ill. App. 2d 377, 397.) What constitutes substantial performance is difficult to define, and whether substantial performance has been given will depend upon the relevant facts of each case. (Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668.) However, the burden is on the contractor to prove the elements of substantial performance in order to enforce his lien. (Watson Lumber Co., 79 Ill. App. 2d at 397.) A contractor whose performance amounts to less than substantial performance is not entitled to the contract price. If there is not substantial performance, then the contractor can recover, under a theory of quantum meruit, only the reasonable value received by the purchaser and above the injury suffered by the builder’s breach. (George Butkovich & Sons, Inc. v. State Bank (1978), 62 Ill. App. 3d 810, 811.) On appeal, the issue of whether there has been substantial performance is a question of fact, and the trial court’s resolution of this question will not be disturbed unless it is against the manifest weight of the evidence. W.E. Erickson Construction, Inc. v. Congress-Kenilworth Corp. (1986), 115 Ill. 2d 119,127.

Defendant argues that the evidence demonstrates that plaintiff did not substantially perform the contract.

Plaintiff testified that Ronald Leek, president of the defendant corporation, approached him to bid on the subject repairs of the drag-way’s quarter-mile track. Plaintiff had previously done repair work at the raceway. Leek wanted a written estimate from plaintiff to present to the Bank. Nothing in the final agreement indicated that plaintiff would apply a primer to the old surface before installing the new surface. There were no engineer’s specifications for the job because Leek stated it would cost too much to procure them.

Plaintiff tore out the old concrete starting pads, which were approximately 250 feet in length. Plaintiff told Leek that the weather was too hot to pour the new concrete pads (which were to be 400 feet in length), but Leek insisted they be put in before the United Drag Racers Association (UDRA) meet on August 4, 1987. Plaintiff put in a lVa-inch asphalt layer at the juncture where the concrete starting pads ended and the asphalt began. Plaintiff did not have time to lay the entire asphalt surface prior to the UDRA meet on August 4, 1987.

Plaintiff admitted the concrete pads were not in good shape for the UDRA event because of the lack of adequate traction on the starting pads. Plaintiff stated that it normally took three to six weeks for the new starting pads to reach an acceptable level of traction, depending on the amount of traffic on the surface.

After the UDRA race, plaintiff installed a layer of asphalt on the remainder of the track. Plaintiff, a racer himself, competed in a number of Byron meets held in the fall of 1987. He admitted that there was a noticeable dip in the track’s left lane. He offered to repair the dip for free, provided that the dragway pay at least something of what it owed.

On cross-examination, plaintiff stated that indentations in the new track where rainwater accumulated were not unusual and could easily be dried with proper equipment. Plaintiff admitted that there were dips both in the concrete pads and in the asphalt surface. Conversely, he stated that the irregular seams in the asphalt surface did not present drivers with any problems. Plaintiff maintained that Leek knew that a 1-inch rather than a lx/2-inch layer of asphalt would actually be applied. On his estimate, plaintiff quoted a price for a lx/2-inch layer of asphalt, so that the Bank would be more amenable to making the loan for repairs. Plaintiff's paving machines were not equipped with electronic instruments to assure a uniform layer of pavement. Plaintiff conceded that the dragway was the only one that he had ever paved.

James Gastel, a consulting engineer, testified on plaintiff’s behalf. Plaintiff contacted Gastel in March 1988 to inspect and perform tests upon the raceway. Gastel generally inspected the track in March 1988, observing its condition but taking no measurements. He then reviewed the reports of the defendant’s expert and examined core samples taken from the track by Testing Engineers. He found no problems arising from the irregular seams in the asphalt; nor did he find that there was a lack of bonding between the old and new surfaces. Gastel opined that the asphalt work was in accordance with general procedures and that the asphalt work appeared adequate.

Gastel stated that it was generally accepted that primer be applied to secure a better bond between layers of asphalt pavement. Also, he found that the east concrete pad required substantial repairs totaling approximately $23,000.

On cross-examination, Gastel testified that he would recommend the use of a primer, but that if the agreement did not call for primer, then plaintiff had no obligation to apply it. Gastel admitted that the agreement called for a lx/2-inch layer of asphalt the entire length of the track. A 11/2-inch layer would last longer than a 1-inch surface. Gastel further admitted that he did not wedge a shovel between the layers to determine bonding between the layers.

Bill Porter, a road contractor who specializes in the laying of “hot mix” surfaces, testified for plaintiff. Porter inspected Byron’s new surface, which he found to be “nice and tight.” Porter often did not use primer; he thought that a good bond could be obtained if the old surface was heated. Porter unsuccessfully attempted to wedge a pointed bar between the layers, indicating a good bond between them.

Plaintiff put on several race car drivers who testified that they had raced on the new surface in late summer and fall of 1987. They found that surface to be acceptable and as good as or better than other tracks. One driver, Mike Bonebright, stated that the surface was “not good” for the UDRA event in early August 1987, but that surface, with the exception of the dip in the left-hand lane, continued to improve throughout the remainder of the 1987 racing season.

Ronald Leek testified that he was president of the defendant corporation. The old asphalt surface had been installed in 1965. In 1981, Byron’s starting area or pad was changed from asphalt to a 250-foot concrete surface. The new concrete pad installed in 1987 by plaintiff measured 400 feet in length.

Defendant’s insurer required improvements to the track’s concrete retaining walls, which protected spectators from accidental injuries. Because defendant had to make improvements on the retaining wall, defendant’s officers decided to make other repairs, including the resurfacing of the raceway.

Leek negotiated the subject agreement with plaintiff. During negotiations over the subject agreement, plaintiff told Leek that it was important to apply primer to the old surface to improve the bond with the new surface. Further, Leek intended the asphalt surface to be IV2 inches thick. He did not agree to a 1-inch asphalt layer. Plaintiff sought this job rather than defendant soliciting him to bid on the project.

As the asphalt was being put down, Leek noticed that plaintiff was not applying a primer to the old surface. He confronted plaintiff about this; plaintiff stated that he had talked about primer with other contractors and decided it was not necessary to apply it. Leek relied on plaintiff’s judgment.

The concrete starting pads were completed immediately prior to the UDRA meet on August 4, 1987. These pads provided so little traction for the vehicles that the UDRA officials, attending the event, decided that it was unsafe to run the cars at full speed. Following the UDRA meet, the new blacktop surface was applied. Approximately 18 local meets were held at Byron in late summer and fall 1987. Leek concluded that, after this number of events, the concrete pads were “never ever going to be right” because they could not provide sufficient traction for the vehicles. Eventually, the UDRA informed Leek that it would not hold further meets at Byron due to the track’s condition.

The track’s condition continued to deteriorate, with the concrete pads and the asphalt track having a washboard-like surface. Further, Leek opined that there was no bonding between the old and new asphalt layers. On one occasion, he had wedged a shovel between the layers and found he could push it ahead as far as he wanted to. Moreover, the new surface did not drain properly, causing him to cancel several racing dates. The old surface had drained perfectly.

On cross-examination, Leek stated that in fall 1987 there were three accidents in which vehicles crashed into the retaining walls. Leek termed this very unusual, as in the prior months of racing during 1987 only one accident had occurred. Leek admitted that priming was not part of the proposal. He discovered the fact that the new asphalt surface's thickness was 1 inch rather than V-k inches only after the track was three-fourths completed. After the Bank determined that there were problems with the work completed, it requested that plaintiff be bonded and insured. Plaintiff told Leek that he would tear out all the concrete and replace it. There was no written agreement verifying such a promise by plaintiff.

Roger Gustafson and Patricia Leek, Leek’s brother-in-law and wife, respectively, testified that they were present at conversations between plaintiff and Leek in which plaintiff said he would apply primer to the old surface.

Daniel Frankfother, a licensed professional engineer, who was vice-president and head of the road and street department at Willett, Hofmann & Associates, Inc., conducted extensive engineering field tests on the racing surface constructed by plaintiff. Frankfother performed a straight-edged test on both the concrete and blacktop surfaces at the dragway and noted extreme and continuous surface variations throughout both the concrete pads and the entire blacktop overlay. Frankfother stated that the deviations on both the concrete and blacktop surfaces far exceeded the standard specifications for construction of Illinois highways which contemplate traffic at speeds up to 70 miles per hour. Willett & Hofmann applies the State standard specifications on all its construction projects (private or public) and considers the standards to be reflective of general industry practice. Frankfother testified that this type of continuous surface variation causes cars traveling 70 miles per hour to experience a harmonic washboard effect. He opined that the effect of the continuous surface variation on cars traveling in speeds in excess of 70 miles per hour, as was the rule at the dragway, would be even more pronounced.

Further, Frankfother noted that the seams of the blacktop overlay were very uneven. This unevenness, he testified, would cause cars to follow the seams with their tires resulting in a loss of control. In view of these defects, Frankfother stated that the surface was not safe for traffic traveling at speeds up to only 70 miles per hour. In his opinion, the defects were so severe as to require total replacement of both of the concrete pads and the entire blacktop surface.

John Berg testified that he was an estimator for Rockford Blacktop, which had also submitted a bid on the subject project. Berg’s estimate was based on scraping the old surface to promote a better bond, the application of primer between the old layer and new layer, and the laying of a life-inch asphalt surface over the majority of the track. Rockford Blacktop made no bid for the paving of the concrete pads. At the time he made the estimate, Berg found the condition of the old surface to be “pretty good.”

At the request of defendant, Berg inspected the track’s new surface early in November 1987. Berg found the seams in the asphalt pavement were not straight for the length of the track. Berg found the workmanship on the new pavement to be of poor quality and stated that to repair the track, it would be necessary to grind off the asphalt put in by plaintiff, repair the underlying track, prime the surface, and put down a new layer of pavement. On cross-examination, Berg admitted that he did not perform any tests upon the track.

Ronald Colson, publisher of a car racing newspaper and an experienced race car driver, testified that he had competed numerous times at Byron Dragway. He was also secretary of the UDRA and on the board of directors. Because of the bad condition of the track, the UDRA, which had scheduled a day of racing on August 4, 1987, had to downgrade said event from a competition to an exhibition, with the drivers putting on “a show for the crowd.” The concrete starting pads were too smooth to provide traction necessary to the vehicles. Further, the dips in the concrete pads could cause racers to abort their runs or, in the extreme cases, run into the guardrail.

Colson returned to the racetrack in September and October 1987 to determine if the UDRA would hold further meets at Byron. He noticed that the seam lines in the asphalt were wavy and that rain collected in puddles in the track. Colson found that the UDRA needed a more textured starting pad and a smoother asphalt surface. On behalf of the UDRA, Colson wrote defendant early in 1988, stating that due to concerns about the safety of the track, the association would not sponsor further meets at Byron.

Duane Nichols, president of the UDRA, testified that the association is the largest owners and drivers association in the nation. It sponsors racing events throughout the country, featuring pro stock cars, super-charged funny cars, dragsters, and exhibition cars, which travel between 180 and 260 miles per hour. Inspecting the new track in fall 1987, Nichols observed that the new concrete pads were extremely smooth, plus there were significant dips in the concrete surface. Nichols particularly noted a dip where the concrete met the asphalt, an imperfection which would cause cars’ tires to spin sideways. He observed several puddles in both asphalt lanes, where the surface dipped.

Also, in fall 1987, Nichols attended a local meet held at Byron. Cars were having problems getting down the track, and several of them lost control, with one crashing. Nichols stated that no future UDRA events should be held at the track until the surface was repaired.

On cross-examination, Nichols stated that Leek had never said that he would not reopen the track and that Leek did not solicit the letter from UDRA, which informed defendant that it would not sponsor future events at the dragway until the surface was repaired.

A report from Testing Engineers, Inc., was admitted into evidence. Testing Engineers cut 21 core samples from various points in the new surface. These samples indicated that the asphalt surfaces’ thickness varied from thirteen-sixteenths inch to 2Vs inches, with the average thickness of the core samples being somewhat less than IV4 inches.

Russell Carlson, who performed the electrical work at the drag-way, testified that plaintiff was working with “not very good” equipment. Moreover, on several occasions, plaintiff’s workers caused delays in the progress of Carlson’s crew, adding to the cost of installing the electrical equipment by approximately $8,800. On cross-examination, Carlson conceded that Leek had not paid the additional amount.

Two race drivers, John Reikes and John Cannon, testified as to their experiences on the new track. Reikes raced on both the old and new surfaces. Reikes said the old surface was one of the best he had been on, and the new surface was one of the worst. Reikes stated that the west lane concrete pad dipped significantly, causing him to lose control of his car. As a spectator, Reikes noticed that racers were having trouble controlling their cars in both lanes.

John Cannon, who had raced since 1960, raced his car at Byron in 1986 and 1987. He found the old surface as good as or better than the surface of the other three tracks on which he competed. Cannon raced at the August 4, 1987, meet sponsored by the UDRA. He raced on both lanes and found that each concrete pad was “wavy.” The concrete’s condition caused him to stop several runs. The asphalt section was “fairly smooth” except for the dips at the end of the track. Despite these problems, Cannon went back to Byron in the fall, primarily because he was used to going to the dragway track. Cannon stated that he would not have returned to Byron in 1988 if repairs had not been made to the new surface.

Ronald Leek testified on surrebuttal that all repairs were intended to improve the facility. He wanted Byron to be a safe track for many years to come. He also planned to tear down the old stands, replacing them with new ones.

At the trial’s end, the trial judge personally inspected the drag-way in the presence of the parties and their respective counsel. In its memorandum decision, the trial court wrote in relevant part:

“I have examined all of the evidence, the exhibits, and personally examined the track, and it’s my opinion that the plaintiff substantially performed his contract and should be awarded the judgment against the defendant in the amount of $119,076.00, less the amount of money necessary to replace the 100 feet of concrete on the east starting line, and the allowance for not using any primer, which would give the defendant a credit of $25,120.00, for a net to the plaintiff of $93,956.00. I do this based upon the testimony, as well as my own examination. My examination showed that for the most part, the asphalt surface was fairly smooth, with the exception that if you assume that the passes start at the east side, and number that number one, and go to the far west side, which would be pass [sic] number eight, that the seams between pass number two and three and seven and eight are rough. I checked for separation by observing the outer seams and all of the test holes, and the holes made by the cement contractor for the re-rod for the retaining walls on each side of the track, and I did not find any separation in any hole. I did see two places, one on the east and one on the west edge where there was a separation in for about four or five inches. All of the passes after the turn-off lanes are rough, but there was some testimony that the plaintiff didn’t realize that he was going to have to do those lanes until he had commenced work. I would have allowed some credit for that area, except that there’s no testimony in regards to how much that cost to do that area beyond the turnoff lanes.”

Besides awarding plaintiff $93,956, the court below also found for Oregon Stone, Beeline, and Tom O’Day in the amounts of $46,402.89, $11,222.14, and $22,750, respectively. Further, the court found that the first lien was to the Bank in the amount of $29,325, plus accrued interest.

Defendant relies primarily on two cases, George Butkovich & Sons, Inc. v. State Bank (1978), 62 Ill. App. 3d 810, and Levan v. Richter (1987), 152 Ill. App. 3d 1082, to support its contentions. In Butkovich, the contractor brought an action to foreclose its mechanic’s lien for work performed on the purchaser’s home. The purchaser alleged several omissions from the contract, namely, that the contractor had failed to install water stops to prevent leaking, failed to install wire mesh for reinforcement in the basement floor, failed to recess glass blocks, and failed to install underground garbage cans in the residence. The purchaser also alleged poor quality of workmanship in that the residence was constructed at the floor elevation nearly 10 inches below the level required and that there were cold joints and honeycombs in the concrete work performed by the contractor.

Noting that a contractor is held to the duty of substantial performance in a workmanlike manner and that the substantial performance is dependent upon the relevant facts of each case, the Butkovich court concluded that, in view of the omissions from the contract and the evidence of poor workmanship, the contractor had not substantially performed his contract and could, therefore, not enforce his lien. The court reasoned that although the water stops were not mentioned in the contract, the parties had lengthy discussions on potential water problems. The water stops and wire mesh were required by specifications which the contractor admitted were a necessary part of the contract.

Levan v. Richter (1987), 152 Ill. App. 3d 1082, involved a determination as to substantial performance in view of several omissions from the terms of the contract. In Levan, the purchasers brought a breach of contract action against a distributor and contractor for construction of a swimming pool. The purchasers alleged that the contractor had failed to complete the pool in accordance with the contract’s specifications and that the pool was rendered unusable due to its negligent installation. Upon completion, the pool was filled with water, and over the course of only two days, the water level in the pool dropped one foot. After the pool had been drained, it became apparent that the contractor had failed to follow several contract specifications. The floor of the pool was 3 to 4 inches thick instead of the required 6- to 8-inch thickness, and the wire mesh reinforcements and steel rods required by the contract were not installed. The parties acknowledged that the pool could not be repaired. The Levan court found that the contractor had failed to follow the contract in several material aspects and that, as a result of such failure, the pool had suffered a catastrophic, irreparable break the first night it was filled with water. The court held that the.purchasers were entitled to expect that a swimming pool would hold water and that the pool’s failure to hold water constituted a breach of contract.

We find the instant facts are most similar to those adduced in Butkovich, wherein the omissions from the contract, plus the evidence of poor quality workmanship, caused this court to find that the contractor had not substantially performed its contract with defendant. Here, the evidence demonstrated that plaintiff failed to apply the agreed upon life-inch layer of asphalt. Indeed, the core samples indicate that plaintiff installed a very uneven layer of asphalt. This unevenness is corroborated by the testimony of defendant’s expert, Daniel Frankfother, who found that drivers on such a surface would experience a washboard effect. Plaintiff’s own expert indicated that the thinner surface would not last as long as the agreed upon life-inch layer. Plaintiff’s argument that the parties did not intend to lay a IV2inch layer of asphalt is belied by the agreement’s language and Leek’s testimony to the contrary.

As to plaintiff’s workmanship, the evidence points convincingly to its poor quality. Frankfother stated the defects of both the concrete starting pads and the asphalt surface were so severe that the total replacement of both was necessary. John Berg of Rockford Blacktop thought that the new asphalt surface would have to be ground off prior to the installation of a new surface. Ronald Colson and Duane Nichols, of the UDRA, found that both the concrete pads and asphalt track were unsafe, and the UDRA board refused to sponsor any future events until the new surface was thoroughly repaired.

We find this evidence much more persuasive than that put forward by plaintiff. The resume of plaintiff’s expert, James Gastel, indicates little direct experience with road construction and a great deal of experience in agricultural engineering, which is hardly germane to this case. Moreover, Gastel’s analysis and observation of the subject dragway was less extensive and detailed than that of Frankfother. Gastel admitted that his field tests of the track were limited to the east concrete starting pad, which he found defective.

Therefore, the trial court’s judgment of August 13, 1989, ordering foreclosure and sale is reversed except as to the judgment in favor of the counterplaintiff, Oregon Stone, Inc., against the counter-defendant, Randy Folk, d/b/a Folk Blacktop Concrete Construction, in the sum of $46,402.89, plus costs and interest for the reason that the amount thereof was stipulated and said judgment was not attacked in this appeal.

Further, this cause is remanded to the trial court for further proceedings pursuant to section 21 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1987, ch. 82, par. 21) as follows:

(1) to determine the reasonable value of services rendered and materials furnished to the defendant, Byron Dragways, Inc., by the plaintiff, Randy Folk, d/b/a Folk Blacktop Concrete Construction, Inc.;
(2) to determine the subcontractors, with the exception of Oregon Stone, Inc., who properly preserved their respective rights to a mechanic’s lien and the reasonable value of the services rendered and materials furnished to Byron Dragways, Inc.; and
(3) that the total amount of the mechanic’s lien rights of the plaintiff and his subcontractors, including the sum due Oregon Stone, Inc., shall not exceed the sum due to the plaintiff, Randy Folk, d/b/a Folk Blacktop Concrete Construction, Inc., and if said sum exceeds the amount due the plaintiff, then the respective mechanic’s lien against Byron Dragway, Inc.’s, property shall be proportionately reduced and prorated.

Reversed in part; remanded with directions.

McLAREN and GEIGER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE REINHARD JUSTICE McLAREN,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. STEVEN W. WEHDE, Defendant-Appellee.
    Second District
    No. 2 — 90—0173
    Opinion filed March 5, 1991.

      McLAREN, J., specially concurring.
    James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the people.
    No brief filed for appellee.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Defendant was charged by complaint filed in the circuit court of Du Page County with the unlawful possession of a hypodermic syringe or needle in violation of section 1 of "An Act to regulate the possession, delivery, sale or exchange of hypodermic syringes, hypodermic needles, and similar instruments” (the Act) (Ill. Rev. Stat. 1989, ch. 38, par. 22 — 50). The trial court granted defendant’s motion to suppress items seized in his home during the execution of a search warrant. The State filed a certificate of impairment and now appeals from the order suppressing evidence pursuant to Supreme Court Rule 604(a)(1) (134 Ill. 2d R. 604(a)(1)).

On appeal, the State apparently concedes that the warrant at issue was defective. However, the State contends that the facts of the instant case fall within the good-faith exception to the exclusionary rule as articulated by the Supreme Court in United States v. Leon (1984), 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405.

We note that the record presented to this court contains neither the search warrant at issue nor the affidavit supporting the warrant. However, the trial court’s statements when rendering its decision on the motion to reconsider its denial of the original motion to suppress specify the pertinent contents of the warrant and affidavit at issue, and the court’s statements are consistent with the characterization of the facts made by defendant in the record of the proceedings below. Accordingly, while we caution the State that the preferred procedure in such circumstances is to supplement the record with all relevant material, we believe the record is sufficient to infer the contents of the affidavit and allow review of the question presented here.

The search warrant in question was issued on the basis of statements made to the issuing judge by Lieutenant K. Dwyer of the Naperville police department. In the affidavit seeking a warrant, Lieutenant Dwyer stated that, during the course of a telephone conversation with defendant, he heard a beeping noise on the telephone. Defendant then informed Lieutenant Dwyer that he was recording the conversation. The officer stated to the issuing judge that defendant’s conduct constituted the criminal offense of eavesdropping (Ill. Rev. Stat. 1989, ch. 38, par. 14 — 2). Based on this information, the judge issued a search warrant on June 26, 1989, authorizing the police to search defendant’s residence for evidence of “eavesdropping, in violation of Illinois Revised Statute[s], Chapter 38, Section 14 — 2 and seize[:] recording tapes, recording device, condenser microphones, and proof of residency.”

Lieutenant Dwyer and two other Naperville police officers then executed the search warrant and, in the process of doing so, discovered a hypodermic syringe or needle in defendant’s residence. Lieutenant Dwyer then swore out a complaint against defendant for a violation of the Act based on this evidence. Defendant was never charged with eavesdropping.

Defendant filed a motion to suppress the evidence, stating that the police exceeded the scope of the warrant. The motion was denied. Defendant then filed a motion seeking reconsideration of this ruling on a different basis. Defendant argued that, pursuant to the supreme court’s decision in People v. Beardsley (1986), 115 Ill. 2d 47, 503 N.E.2d 346, of which the trial court “was not fully informed” when it first ruled on defendant’s motion, defendant’s conduct did not constitute criminal eavesdropping. Beardsley held that there is no violation of the eavesdropping statute where there is no surreptitious interception of a communication or where the communication was not intended to be private. (Beardsley, 115 Ill. 2d at 55, 503 N.E.2d at 350.) Defendant argued that, under Beardsley, his conduct did not constitute an offense and that, therefore, no warrant should have been issued.

Defendant further argued that the good-faith exception to the requirement of a valid warrant did not apply in this case because the police officers’ reliance on the validity of the warrant was not objectively reasonable under the circumstances. Defendant contended that a “police officer cannot objectively reasonably rely on a warrant which is insufficient due to his reckless statement of the law which results in an error by the magistrate and which makes the warrant objectively unreasonable.” Defendant also argued that the issuing judge “wholly abandoned his judicial role” and that the good-faith exception did not apply here because the warrant was “facially deficient.”

The trial court apparently accepted that, under Beardsley, defendant’s conduct as described in Lieutenant Dwyer’s affidavit did not constitute criminal eavesdropping and that, therefore, no warrant should have been issued to search for evidence of such an offense. The court then determined that the good-faith exception of Leon did not apply in the instant case:

“THE COURT: *** Now, applying the reasoning of the Leon decision to the facts in this case, it is my conclusion that the warrant itself is facially invalid, and the fact that it was issued by a judge does not authorize the search.

* # *

Thus, on the face of the warrant itself, it appears the warrant is defective because at issue, then, [are] facts which do not constitute a crime according to the Supreme Court in the Beardsley opinion.

It is somewhat of a troublesome case in my mind because I do not believe the officers did anything wrong, and I think they did operate in a way where they were relying on the warrant, but nevertheless, they are the ones who went to the Judge and made the allegation that this was a crime.

And I cannot see from the warrant itself the Judge made a determination himself independently of the facts that it was a crime, basically concurred in the findings of the officer and on that basis issued the warrant.

So although the whole purpose of a warrant is to [have] the Judge make an independent objective impartial determination whether there is probable cause so that a policeman can then rely on that, here, I think, the officer knew or reasonably should have known himself because of what the Supreme Court has said in Beardsley that these facts did not constitute a crime. Thus, there was no probable cause.”

The court then granted defendant’s motion to suppress the evidence seized during the execution of the search warrant.

On appeal, the State concedes that the warrant issued was not valid because the facts supporting it do not constitute an offense under Beardsley, and so our review of the issue presented is premised on this concession. The State’s main contention on appeal is that the good-faith exception to the exclusionary rule articulated in Leon applies here. The State argues that it is unreasonable for the trial court to have expected Lieutenant Dwyer to be cognizant of the Beardsley opinion and to second-guess the determination of probable cause made by the judge who issued the search warrant.

Defendant has not filed a response brief in this court, so we examine this appeal pursuant to the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493. Although a trial court’s ruling on a motion to suppress evidence will generally not be disturbed on appeal unless it is manifestly erroneous, where, as here, neither the facts nor the credibility of witnesses is in dispute, the question is a legal one subject to de novo consideration on review. People v. Foskey (1990), 136 Ill. 2d 66, 76, 554 N.E.2d 192; People v. Graves (1990), 196 Ill. App. 3d 273, 276, 553 N.E.2d 810.

In Leon, the Supreme Court first recognized the good-faith exception to the general rule that evidence seized pursuant to an invalid warrant may not be used against an accused. Under Leon’s good-faith exception, evidence seized by a police officer acting in objectively reasonable reliance on a subsequently invalidated search warrant issued by a neutral magistrate is not excluded. (Leon, 468 U.S. at 922, 82 L. Ed. 2d at 698, 104 S. Ct. at 3420.) However, the court articulated four instances where an officer’s reliance on a warrant issued by a magistrate would not be objectively reasonable: (1) where the magistrate was misled by information supplied in an affidavit which the affiant knew was false or would have known was false except for his reckless disregard of the truth; (2) where the judicial magistrate wholly abandons his judicial role; (3) where the affidavit upon which the warrant is issued is so lacking in indicia of probable cause that an official belief in its existence is unreasonable; and (4) where the warrant is so facially deficient that the executing officers cannot reasonably expect it to be valid. Leon, 468 U.S. at 923, 82 L. Ed. 2d at 699,104 S. Ct. at 3421.

In the instant case, the trial court concluded that the officers executing the search warrant could not have reasonably relied on the warrant, but the court blurred the distinction between the four aspects of objectively reasonable reliance discussed in Leon. We now examine each of these four areas to determine whether, under these circumstances, the police officers' reliance on the warrant was objectively reasonable.

First, Lieutenant Dwyer did not supply false factual information to the judge who issued the warrant. While Dwyer may have stated that defendant’s conduct constituted an offense, this is only an incorrect assessment of the legal consequence resulting from the facts asserted, and there is nothing in the record to show his misapprehension of law was intentional or in reckless disregard of the truth. The trial court noted that it did “not believe the officers did anything wrong.”

Second, there is no indication that the issuing judge wholly abandoned his judicial role in issuing the warrant. The record demonstrates, at most, that the issuing judge merely made an incorrect assessment that the conduct described by Lieutenant Dwyer constituted a criminal offense. However, the court in Leon stated that “[penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” Leon, 468 U.S. at 921, 82 L. Ed. 2d at 697, 104 S. Ct. at 3419.

Furthermore, it cannot be assumed from this record that the issuing judge acted as a mere “rubber stamp for the police” in concurring with Lieutenant Dwyer’s suggestion that defendant’s conduct constituted criminal eavesdropping. (See Leon, 468 U.S. at 914, 82 L. Ed. 2d at 693, 104 S. Ct. at 3416.) The judge was presented with underlying circumstances supporting the officer’s belief that the defendant had committed a crime. (See Aguilar v. Texas (1964), 378 U.S. 108, 114, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514.) The record does not indicate that defendant sought to elicit testimony from the officer to establish whether the judge entirely failed to examine the affidavit before issuing the warrant, although such testimony would have been proper under Leon. (1 W. LaFave, Search & Seizure §1.3(f), at 65 (2d ed. 1987).) Since, as the trial court itself noted, “[t]here is no record or other indication in the warrant what determination was made by the judge,” there is simply no basis in the record from which to conclude that the issuing judge wholly abandoned his judicial role.

Third, the affidavit supporting the search warrant is not so lacking in indicia of probable cause that official belief in its existence would be unreasonable. Typically, a court reviewing this issue will examine whether the affidavit supplies sufficient factual indicia of probable cause so that an official belief in its existence would be objectively reasonable. Here, while the affidavit provides sufficient facts from which to find probable cause that defendant engaged in the conduct described, the defect in probable cause stems from a misinterpretation of the law. Under these particular circumstances of evolving case law, as evidenced by the Beardsley decision, and frequent changes in the eavesdropping statute (see Ill. Ann. Stat., ch. 38, par. 108A — 1 et seq.\ ch. 38, par. 108B — 1 et seq., Historical & Statutory Notes, at 45-66 (Smith-Hurd Supp. 1990)), it would be unreasonable to expect a police officer to second-guess the legal basis of the issuing judge’s finding of probable cause. While the issuing judge should have been familiar with the supreme court’s decision in Beardsley, in this circumstance, we conclude that Dwyer’s reliance on the judge’s legal determination was not objectively unreasonable.

Fourth, we do not agree with the trial court’s characterization of the warrant as “facially invalid” based on the Beardsley decision. As discussed in Leon, facial invalidity generally refers to obvious factual deficiencies or omissions on the face of the warrant, such as failing to particularize the place to be searched or the things to be seized, which make it impossible for the officer reasonably to presume the warrant is valid. (Leon, 468 U.S. at 923, 82 L. Ed. 2d at 699, 104 S. Ct. at 3421.) We do not interpret Leon to include within the notion of facial invalidity an underlying legal deficiency in the judge’s finding of probable cause. See generally 1 W. LaFave, Search & Seizure §1.3(f), at 66-71 (2d ed. 1987).

We conclude that the police officers’ reliance on the search warrant issued by a judge was objectively reasonable under these circumstances. The officers acted reasonably in presenting information to obtain the search warrant and thereafter relying on the warrant. The deficiency stems from the issuing judge’s failure to assess the supreme court’s decision in Beardsley. However, “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.” (Leon, 468 U.S. at 916, 82 L. Ed. 2d at 694, 104 S. Ct. at 3417.) We believe that there is no police misconduct here and that Leon’s good-faith exception to the exclusionary rule should apply. Therefore, the evidence should not have been suppressed.

Accordingly, the trial court's order suppressing the evidence seized during the execution of the subsequently invalidated warrant is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

BOWMAN J., concurs.

JUSTICE McLAREN,

specially concurring:

I file this special concurrence because I reach the same result but by a different path regarding the third aspect of the “Leon” test.

As stated in the majority opinion, “[tjypically, a court reviewing this issue will examine whether the affidavit [my emphasis] supplies sufficient factual indicia of probable cause so that an official belief in its existence would be objectively reasonable.” (Emphasis in original.) (210 Ill. App. 3d at 63.) The affidavit is not of record. The majority cites other factors also not in the record: evolving case law and frequent changes in the eavesdropping statute. These appear to be factors of which the majority takes judicial notice in determining Dwyer’s reliance was not objectively unreasonable. I therefore believe the majority is making a de novo determination of fact without a sufficient record to do so. The statement made by the majority appears to be a legal pronouncement that high-ranking police officers are not required to become aware of evolving case law and frequent changes in the eavesdropping statute. I am not aware of any authority supporting such a position.

Rather than impose this court’s de novo findings, I would reverse on the basis that the trial court’s finding “the officer did not do anything wrong” was not manifestly erroneous. I interpret the trial court’s finding “that the officer did not do anything wrong” to mean that the officer’s reliance on the judge’s legal determination was not objectively unreasonable. I, therefore, see no need for the majority’s hypothesis based on an affidavit and other matters not contained in the record.


author: JUSTICE INGLIS

text:
      In re A.J.H., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. A.J.H., Respondent-Appellant).
    Second District
    No. 2 — 90—0132
    Opinion filed March 8, 1991.
    — Rehearing denied April 9, 1991.
    Kevin M. Kane, of Brigham, Kane & Strubbe, of Waukegan (Karen L. Brigham, of counsel), for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Gregory L. Slovacek, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court;

Respondent, A.J.H., a minor, appeals from an adjudication of delinquency (Ill. Rev. Stat. 1989, ch. 37, par. 805 — 3(1)) based upon a finding by the trial judge that A.J.H. committed an act of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(c)(2)(i)) upon a five-year-old child for whom she baby-sat. On appeal, respondent raises the following issues: (1) whether respondent was adequately informed of the charges against her to enable her to prepare her defense; (2) whether the five-year-old complaining witness was competent to testify; (3) whether the hearsay statement of the complaining witness was properly admitted under section 115 — 10 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10); and (4) whether respondent was proved guilty beyond a reasonable doubt of aggravated criminal sexual abuse. We reverse.

On June 19, 1989, the State filed a petition for adjudication of wardship charging respondent, a 13-year-old girl, with aggravated criminal sexual abuse. The petition alleged that, on or about a period of time from January through May 1989, respondent knowingly fondled the penis of B.H. for the purpose of her own sexual arousal. Respondent’s attorney filed a motion to strike and dismiss the petition on the basis that the allegations as to the date were so vague and uncertain that she could not properly prepare a defense. Respondent’s motion was denied, but a petition for a bill of particulars was permitted to be filed.

In the petition for a bill of particulars, respondent alleged that she sat for B.H. on approximately five occasions between January and May 1989, at different locations with different people being present. Respondent alleged that without more specific information, she would have to prepare defenses and witnesses to testify on her behalf for five or six separate dates of baby-sitting. The State filed a single-sentence response, alleging that the offense occurred on or about a period of time from October 1988 through May 1989, at the address of B.H.’s grandparents. At the hearing on the petition for a bill of particulars, the trial court denied respondent’s request for a more specific date and granted the State’s oral motion to amend the petition for adjudication of wardship, alleging that the offense occurred sometime during October 1988 through May 1989.

The trial commenced on August 25, 1989. The first witness called by the State was B.H. The trial judge asked B.H. a few preliminary questions, which required him to identify numbers and colors. The judge then asked B.H. whether he knew what it meant to tell the truth and whether he could do so in court. B.H. responded affirmatively. The trial judge stated that she would not dispense an oath at that time, but requested the State to go into some credibility issues.

The prosecutor asked B.H. what his name was, his age, his birthday, and where he lived. B.H. was able to answer all of the prosecutor’s questions. B.H. testified that if he did not tell the truth at home, his mother would yell at him and send him to bed; however, if he did not tell the truth at preschool, nothing would happen. B.H. said that he did not know what would happen if he told a lie to the judge.

The prosecutor then asked the trial court for B.H. to be qualified as competent to testify. The court reserved its ruling and permitted the State to examine B.H. regarding the allegations of the petition. B.H. identified respondent in court and stated that he knew her when he was three and five years old, but not when he was four years old. B.H. testified that respondent touched him where she was not supposed to while they were at B.H.’s grandparent’s house. However, B.H. could not remember where respondent touched him.

The prosecutor then requested permission for B.H.’s mother to be present during B.H.’s testimony and for that testimony to take place in chambers. Because the mother was scheduled to be called as a witness, the prosecutor agreed to call her first, without B.H. being present, and then resume B.H.’s testimony afterwards in chambers. The trial court granted the prosecutor’s request.

B.H.’s mother testified that she and B.H. lived with her parents until May 1989. Respondent baby-sat for her usually once a week from October 1988 until May 1989. On cross-examination, the mother testified that because B.H.’s grandfather worked midnights, he was always in the house sleeping when respondent baby-sat.

The testimony of B.H. was then continued in the judge’s chambers. The prosecutor asked B.H. whether he could show on a doll what respondent did to him. B.H. indicated that he could not and refused to hold the doll. When the prosecutor asked where respondent touched him, B.H. responded that he had forgotten.

The prosecutor then asked permission for B.H.’s mother to sit next to B.H., which the trial court granted. With his mother beside him holding his hand, B.H. continued in his refusal to take the doll and indicated that he could not say where respondent had touched him. The prosecutor then asked for a continuance, which the trial court granted over respondent’s objection. In granting the continuance, the trial judge noted that it was almost 5 p.m. on a Friday and B.H. had had a long day.

The trial resumed on Thursday, August 31, 1989, with the questioning of B.H. When the prosecutor asked B.H. to tell where respondent had touched him, B.H. responded “My private parts.” B.H. agreed that by “private parts,” he meant his penis. The prosecutor handed B.H. the doll and asked him to show what respondent did to him. The prosecutor described that B.H. put his hand under the pants and underwear of the doll and moved his hand back and forth. Respondent’s attorney stated that that was not what he saw B.H. do. The trial judge admitted that she was not sure what B.H. did, and so B.H. was asked to demonstrate it again. The judge noted that B.H. then put his thumb and middle finger in the penis area of the doll and moved them back and forth. The prosecutor then pulled the doll’s pants down and asked B.H. to show where respondent had touched him. B.H. touched the penis area of the doll. The prosecutor asked B.H. to demonstrate, by touching his leg with his hand, exactly how long respondent allegedly kept her hand on his penis. The court noted for the record that B.H. did so for a time span of about four to five seconds. When asked whether respondent had said anything after-wards, B.H. stated that she had told him not to tell anyone.

On cross-examination, B.H. stated that he had not talked to anyone about his testimony since he first testified on Friday, August 25. B.H. specifically denied having met with Lake County sheriff’s detective Richard Bilisko during the interim. B.H. testified that he has known respondent for seven or eight years and that she has baby-sat him for six, seven, or eight years, he did not know. B.H. admitted playing with two other children who touched his private parts. In particular, B.H. testified that a boy named Nathan, who lives across the street from his grandparents, bit him on his private part. B.H. opined that respondent was a good baby-sitter, but he stopped liking her when she tickled his private parts. B.H. did not know when respondent tickled him, but he thought it was when he was four or five years old.

At the conclusion of B.H.’s testimony, respondent moved to strike his testimony because he had not been properly qualified. The trial court denied respondent’s motion.

The State then called Lake County sheriff’s detective Portia Wallace to testify under an exception to the hearsay rule provided in section 115 — 10 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10). Wallace explained that she met with B.H. on May 23, 1989, for approximately 45 minutes. Wallace stated that she began the interview by asking B.H. various questions to establish that he knew the difference between the truth versus a lie and pretend versus reality. Wallace stated that, thereafter, B.H. told her that his baby-sitter had tickled him in his penis area. B.H. demonstrated by pulling the pants and underwear down from an anatomically correct doll and tickling the doll on its penis. Wallace testified that B.H. told her that he had his pajamas on when this happened. B.H. further told her that no one else had done that to him. Wallace testified that the interview was cut short when she told B.H. that she was going to talk to respondent about what he said she had done; B.H. started crying and became hysterical, begging Wallace not to tell. Wallace was unable to determine from B.H. when the alleged incident occurred, except B.H. did say that it happened while he and his mother were living with his grandparents. The court then admitted Wallace’s testimony over the objection of respondent.

The State’s final witness was Lake County sheriff’s detective Richard Bilisko. He testified that on May 18, 1989, he spoke with respondent at her school, along with respondent’s assistant principal and Gay Viay, an investigator for the Department of Children and Family Services. Bilisko testified that respondent said that she had been B.H.’s baby-sitter for approximately V-k to 2 years and that she usually baby-sat on Wednesday evenings from 6:45 p.m. to 9:30 p.m. and sometimes on Saturday. Bilisko stated that respondent had told him that when she baby-sat on Wednesday evenings, B.H. had already been bathed by his mother. After B.H.’s mother left, B.H. and respondent usually watched television until approximately 8 p.m., and respondent would then prepare B.H. for bed. Respondent explained that that included tickling games, possibly reading a book, and then putting B.H. down in his bed. Bilisko testified that respondent denied having touched B.H. on any of his private parts.

The State then rested. Respondent moved for a directed finding, which was denied.

Respondent testified on her own behalf. She stated that she is in the eighth grade and is the oldest of four children in her family. Respondent testified that she started baby-sitting for B.H. about a year ago. She stated that she usually baby-sat him at his grandparent’s house, but sometimes she baby-sat him at her house. Respondent explained that she usually baby-sat on Wednesday nights and occasionally on Saturdays. Respondent stated that, when she baby-sat on Wednesday nights, she generally arrived after B.H. had already been fed, bathed, and changed into his pajamas. Respondent said that B.H. would generally play with his toys until his 8 p.m. bedtime. Respondent explained that B.H. went to bed by himself, and she would bring him in a cup of water.

When asked whether she had ever tickled B.H., respondent replied that she had once on the Saturday following February 24th while she was baby-sitting B.H. and his cousin, Timmy. Respondent testified that on that night she tickled B.H. while they were all in the living room. Respondent stated that when she did so, she tickled B.H. on his stomach area and his neck. Respondent testified that she remembered that incident because it was B.H.’s mother’s birthday, which was the Saturday after her father’s birthday. She denied having ever pulled B.H.’s pants down or having touched his penis. She stated that she had never seen B.H.’s penis.

Respondent testified that on Tuesday, August 29, 1989, after the first trial date but before the trial resumed, she saw Detective Bilisko at B.H.’s grandfather’s house talking to B.H. and his grandfather.

The final witness for the defense was respondent’s mother. She testified that respondent is 13 years old and is an honorable mention student. Respondent’s mother stated that B.H. has visited their home two or three times since the complaint was initiated. She also stated that she saw Officer Bilisko with B.H. and his grandfather Tuesday, August 29, at B.H.’s grandparents’ home.

At the conclusion of all the testimony, the trial judge stated that B.H. was credible and his testimony was clear and convincing. She then found that the State had proved its case beyond a reasonable doubt and continued the case for social evaluation and further proceedings.

The dispositional hearing was held on October 17, 1989. The trial court received several reports and a victim impact statement prepared by B.H.’s mother. The trial judge stated that she may have considered supervision in this cause, but was precluded from doing so because the State exercised a formal objection to supervision. The court then adjudicated respondent a delinquent ward of the court and placed her on a period of probation not to exceed 18 months. Respondent filed post-trial motions, which were denied. Respondent appeals.

We first consider the last issue raised by respondent as resolution of it may dispose of the cause. Respondent contends that she was not proved guilty beyond a reasonable doubt. Respondent argues that, when a defendant convicted of sexual abuse denies the charge, the conviction will be upheld only where the complainant’s testimony is clear and convincing or where it is substantially corroborated by other evidence. (People v. Diaz (1990), 201 Ill. App. 3d 830, 834; People v. Thompson (1990), 198 Ill. App. 3d 417, 419.) The Appellate Court for the Fourth District recently rejected the application of this standard in People v. Roy (1990), 201 Ill. App. 3d 166, 185. The Roy court held that, in a case in which a sex offense is charged, the State need not demonstrate that the victim’s testimony is clear and convincing or substantially corroborated in order to prove the defendant guilty beyond a reasonable doubt. (Roy, 201 Ill. App. 3d at 185.) The court in Roy explained: “The testimony of no other category of crime victim is held to be automatically suspect or to require additional proof beyond the statutory requirements. The time has past to rid the law of this sexist anachronism.” (Roy, 201 Ill. App. 3d at 185; see also People v. Evans (1990), 199 Ill. App. 3d 330, 335.) We agree.

We find that there is no legitimate reason to place additional requirements on the victims of sex crimes regarding how persuasive their testimony must be. (See People v. James (1990), 200 Ill. App. 3d 380, 394.) Such requirements are contrary to the supreme court’s recent decision in People v. Pintos (1989), 133 Ill. 2d 286, 291, which disapproved of a particularized definition for reasonable doubt. In Pintos, the court held that the reasonable doubt test as set forth in People v. Collins (1985), 106 Ill. 2d 237, 261, should be applied in reviewing the sufficiency of evidence in all criminal cases. (Pintos, 133 Ill. 2d at 291.) Under this test, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Collins, 106 Ill. 2d at 261, citing Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

An accused commits aggravated criminal sexual abuse if she is under the age of 17 and commits an act of sexual conduct with a victim under the age of nine. (Ill. Rev. Stat. 1989, ch. 38, par. 12— 16(c)(2)(i).) Sexual conduct is defined as “any intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused, or any part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused.” Ill. Rev. Stat. 1989, ch. 38, par. 12 — 12(e).

Respondent contends that the State failed to present any evidence regarding her alleged intent or state of mind in committing the offense. B.H. testified that respondent had touched his penis for four to five seconds and told him not to tell anyone. The State argues that one can infer from this conduct the requisite sexual intent. (People v. Goebel (1987), 161 Ill. App. 3d 113, 125; People v. Allison (1983), 115 Ill. App. 3d 1038, 1043.) In Goebel, the defendant, a substitute teacher, was convicted of criminal sexual abuse for touching the complainant, a nine-year-old student, on one of her breasts with his outstretched hand. This court affirmed the conviction, finding it “thoroughly reasonable to infer from such touching of a nine-year-old girl that defendant intended to gratify or arouse himself sexually.” Goebel, 161 Ill. App. 3d at 125.

However, as respondent argues, it is not justified to impute the same intent into a child’s action that one could reasonably impute into the actions of an adult. Here, respondent was 13 years old, and the alleged victim was five. Even accepting B.H.’s allegations as true, we cannot reasonably infer from respondent’s actions that she intended sexually to gratify or arouse B.H. or herself. Without such evidence, an essential element of the crime is missing. Consequently, respondent’s conviction must be reversed.

Given our resolution of the above issue, we need not address the remaining issues raised by respondent.

Reversed.

WOODWARD and NICKELS, JJ., concur.


author: JUSTICE BOWMAN

text:
    WILLIAM H. BRUSS, Plaintiff-Appellant, v. HOWARD J. KLEIN, JR., et al., Defendants-Appellees.
    Second District
    No. 2 — 90—0058
    Opinion filed March 5, 1991.

      Robert V. Gildo, of Robert V. Gildo, Ltd., of Wheaton, for appellant.
    Walsh & Knippen, Chartered, and Zachary M. Bravos, of Bravos & Trapp, Ltd., both of Wheaton, for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court;

Plaintiff, William H. Bruss, appeals from a judgment entered in favor of defendants, Howard J. Klein, Jr., and Alice W. Klein, following a nonjury trial. Plaintiff was seeking specific performance of an option contract which gave him an option to purchase a parcel of real estate located in Wheaton, Illinois, and a declaratory judgment stating that he had the right to proceed under the agreement. The sole issue raised by plaintiff on appeal is whether the trial court’s finding in favor of defendants was contrary to the manifest weight of the evidence.

Plaintiff filed his complaint on April 21, 1988. The complaint alleged that defendants are record title holders of real estate located at 1751 Naperville Road, Wheaton, Illinois (subject property). Plaintiff further alleged that he and defendants entered into an option contract dated February 26, 1987, for the purchase of the subject property. A copy of the contract was attached to the complaint.

The agreement provided that, in consideration of the sum of $5,000, plaintiff had an option to purchase the subject property for $350,000. Earnest money was to be paid to the defendants in the amount of $35,000 on or before March 1, 1988, with the balance to be due at closing. The agreement further provided (the underlining indicates completed blanks in the preprinted form):

“The option hereby granted shall be exercised by the Optionee by (a) written notice to that effect delivered to the Optionor at 1751 Naperville Road, Wheaton, Illinois and (b) payment to the Optionor of the price or portion thereof specified, and (c) the delivery of any note and mortgage or trust deed above provided for, on or before March 1,, 1988.”

Attached to the agreement was a two-page “Rider A” which was made a part of the contract. “Rider A” provided, in pertinent part:

“All notices required to be given under this Contract shall be construed to mean notice in writing signed by or on behalf of the party giving the same, and the same may be served upon the other party or his agent personally or by certified or registered mail, return receipt requested, to the parties addressed; if to SELLERS to HOWARD J. KLEIN, JR. and ALICE M. KLEIN, his wife, 1751 Naperville Road, Wheaton, Illinois 60187 and SELLERS attorney, GORDON T. TRAPP, ESQUIRE, 1275 East Butterfield Road, Suite 100, Wheaton, Illinois 60187, or if to BUYER at 27W670 Washington Street, Winfield, Illinois 60190. Notice shall be deemed made when mailed or served.”

Plaintiff alleged that he attempted to serve defendants with notice to finalize the transaction and with a check in the amount of $35,000 by personally appearing at the subject property on February 26 and 29 and March 1, 1988. He alleged that the premises were vacant on each of these occasions so that he was unable to accomplish delivery.

He further alleged that defendants had a duty to inform plaintiff that they were going to move out of State and would therefore be unavailable for service and that defendants never intended to fulfill the terms of the contract but rather “maliciously, intentionally, and willfully” misrepresented that they resided at the subject property for the purpose of acquiring the $5,000 option fee.

Defendants filed a motion to dismiss the complaint pursuant to section 2 — 615 of the Code of Civil Procedure (111. Rev. Stat. 1989, ch. 110, par. 2 — 615). Defendants argued that the complaint failed to state a cause of action because defendants had no duty under the terms of the contract to keep plaintiff informed of their residence and because plaintiff admitted that he did not accomplish delivery of the notice and check. The motion was denied, and the cause proceeded to a bench trial.

At trial, plaintiff testified that he attempted to telephone defendants several times around February 24, 1988. He then went to the subject property on February 26, 1988, in order to deliver a $35,000 check and a letter. Both the check and the letter were admitted into evidence. The check was dated February 26, 1988, and the handwritten letter stated:

“Dear Howard

I request an extension of 180 days on our contract for additional $5000.00 as an option fee. If not acceptable we will close

W H Bruss”

Plaintiff was there approximately five to seven minutes but was unable to deliver the check and letter because no one was home. He again attempted to deliver the same check and letter twice on February 29, 1988, and once on March 1, 1988. He did not leave the check or letter at the property on any of these occasions.

Defendant Howard Klein, called as an adverse witness, testified that he moved to North Carolina in September 1987. He left the utilities on at the subject property, did not disconnect the telephone and left furniture and draperies inside the property. This was because he used the house approximately two times a month when he came back to Illinois on business, although he did not stay at the property. He did not notify plaintiff of the move. He did notify the post office of his forwarding address in North Carolina, and, as mail was forwarded by the post office, he notified persons sending him mail of his new address. Klein also stated that plaintiff had not contacted him at any time during the year the option was in effect. He testified that he did not move to North Carolina with the intent to hide himself from plaintiff.

Other evidence at trial established that plaintiff’s business partner, Jeffrey Walker, delivered the $35,000 check and a letter to defendants’ attorney, Gordon Trapp, on March 11, 1988. In the letter, Walker outlined plaintiff’s attempts to deliver the check and notice to defendants and demanded that the option contract be consummated. Mr. Trapp did not accept the check based on the fact that the option had expired March 1,1988.

Plaintiff also testified that he did not send written notice to defendants at the subject property or to defendants’ attorney on or before March 1, 1988. He admitted that the option to deliver the check and letter to Mr. Trapp was available to him on March 1, 1988. He did state that he believed that he was required to deliver written notice to defendants first.

A tape of a March 9, 1988, telephone conversation between plaintiff and defendant Howard Klein was played for the judge and admitted into evidence. The telephone conversation was initiated by Klein and was taped by Klein. There is no transcript of the conversation in the record. However, plaintiff agreed during his testimony that the statements of defendants’ counsel during his opening statement regarding the conversation were essentially correct. This version of the conversation can be summarized briefly as follows. Klein told plaintiff that he wanted to let plaintiff know that the option had expired. Plaintiff responded:

“I made a mistake on the date, and I thought we were into March with this thing.

* * *

It was my fault. I didn’t mean to let it happen and had talked to your attorney about an extension on it.”

Another taped conversation between plaintiff and Klein occurred on March 10, 1988. At that time plaintiff told Klein that he had attempted to contact him and that there was nobody to whom to give the money. He asked Klein if he had been out of town. Klein replied that he was on work assignment and that plaintiff could have given it to the lawyer.

Following this testimony, defendants presented an oral motion for a directed finding. The motion was denied.

Jeffrey Walker then testified that he believed that the contingency period on the option agreement ran until March 12, 1988, one year from the date he had been told by plaintiff that the agreement was accepted. Gordon Trapp testified that he had a conversation with Walker on March 11, 1988. Walker told Trapp that he had blown it, that he had marked his file March 12.

Following the trial, the trial court entered judgment for defendants. The judge found that: (1) plaintiff failed to meet his burden to show that he attempted to deliver notice to the subject property on or before March 1, 1988; (2) that plaintiff failed to meet his burden to establish that defendants never intended to fulfill the terms of the contract; and (3) that plaintiff did not exercise the option in a timely manner as set out in the option contract and as contemplated between the parties. After the trial court denied plaintiff’s motion to reconsider, this timely appeal followed.

Plaintiff argues on appeal that the trial court’s ruling in favor of defendants was against the manifest weight of the evidence. He contends that, as the trial court denied defendants’ motion to dismiss and motion for a directed finding, the court must have found that his complaint was sufficient legally to state a cause of action and that plaintiff not only presented sufficient evidence to make out a prima facie case, but met his burden of proof by a preponderance of the evidence. Plaintiff concludes that implied in the court’s ruling on the motion for a directed finding was a determination that plaintiff’s testimony was credible. Plaintiff maintains that defendants did not negate his testimony that he attempted to serve defendants but that defendants’ own conduct made service impossible, arguing that there is therefore no evidence in the record which supports the finding of the trial court for defendants. We disagree and affirm.

Plaintiff is correct that, in ruling on a defendant’s motion for judgment in his favor at the end of the plaintiff’s case, the court must first determine whether the plaintiff has made out a prima facie case. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 155.) If a prima facie case exists, the trial judge must then weigh the plaintiff’s evidence. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1110; Kokinis, 81 Ill. 2d at 155.) The court must consider all of the evidence, including any favorable to the defendant, and is to pass on the credibility of the witnesses, draw reasonable inferences from the testimony, and generally consider the weight and quality of the evidence. {Kokinis, 81 Ill. 2d at 154.) If the weighing process results in the negation of some of the evidence necessary to the plaintiff’s prima facie case, the court should grant the defendant’s motion and enter a judgment dismissing the action. Kokinis, 81 Ill. 2d at 154-55; Coryell v. Lombard Lincoln-Mercury Merkur, Inc. (1989), 189 Ill. App. 3d 163,169.

We do not agree with plaintiff’s argument, however, that the court’s ruling on the motion for a directed finding must be considered a determination that plaintiff’s testimony was credible and that his case was thus proved, precluding a judgment for defendants at the conclusion of the trial. We initially note that this argument was made without any directly supportive citation of authority. In fact, the law states that, if a defendant’s motion is denied, the court should continue as if the motion had not been made (Kokinis, 81 Ill. 2d at 155; Noe v. Clemons (1988), 174 Ill. App. 3d 223, 230) and proceed with trial (People ex rel. Hartigan v. Stianos (1985), 131 Ill. App. 3d 575, 578). The trial court’s ruling on a section 2 — Ill. motion is not a determination of liability as to either party. (Margolies v. Landy & Rothbaum (1985), 136 Ill. App. 3d 635, 639.) Plaintiff’s argument, therefore, is without foundation. (See Margolies, 136 Ill. App. 3d at 639.) The fact that the trial court did not grant either of defendants’ motions does not mean that the court could not rule for defendants at the conclusion of the trial, even based on a ground raised in the motions.

The obvious and correct standard to apply when a challenge is made to a trial court’s ruling following a bench trial is whether the court’s judgment is against the manifest weight of the evidence. {Schackleton v. Federal Signal Corp. (1989), 196 Ill. App. 3d 437, 444-45.) “The trial judge, as the trier of fact, is in a position superior to a court of review to observe the demeanor of witnesses while testifying, to judge their credibility and to determine the weight their testimony should receive.” (In re Application of County Treasurer (1989), 131 Ill. 2d 541, 549.) For a finding or judgment to be against the manifest weight of the evidence, an opposite conclusion must be clearly evident. Schackleton, 196 Ill. App. 3d at 445; Seeding v. Miller (1988), 167 Ill. App. 3d 128, 143.

In this case, plaintiff was seeking specific performance of an option contract and a declaratory judgment stating that he had the right to proceed under the agreement.

An option is a contract by which the owner of property agrees with another person that he shall have the right to buy his property at a fixed price within a time certain. (Morris v. Goldthorp (1945), 390 Ill. 186, 191; McMillan v. Ingolia (1980), 87 Ill. App. 3d 727, 729.) Two elements therefore exist: (1) the unilateral offer to sell, which does not become a contract until accepted; and (2) a contract to leave the offer open for the specified time. (Whitelaw v. Brady (1954), 3 Ill. 2d 583, 589; Sutton Place Development Co. v. Bank of Commerce & Industry (1986), 149 Ill. App. 3d 513, 516.) Only when an option is accepted and exercised according to its terms does it become a present contract for the sale of the premises (see Hanson v. Duffy (1982), 106 Ill. App. 3d 727, 730) which is capable of specific performance (Sutton, 149 Ill. App. 3d at 516). The holder of the option must exercise it in strict conformity with the conditions prescribed therein. Moehling v. Pierce (1954), 3 Ill. 2d 418, 423.

Plaintiff, therefore, was not entitled to an order of specific performance, or to a declaration that he had the right to proceed under the agreement, unless he had strictly complied with the terms of the contract in exercising the option. The trial court specifically found that plaintiff did not exercise the option in a timely manner as set out in the option contract. Based on the evidence presented at trial, we cannot conclude that this finding was against the manifest weight of the evidence.

The option contract provided that the option could be exercised by payment of $35,000 on or before March 1, 1988, and by “written notice to that effect” delivered to the defendants at 1751 Naperville Road on or before March 1, 1988. The contract further specified that all notices required to be given by plaintiff under the contract could be served personally on defendants or their agent, Gordon Trapp. Notices could also be served by certified or registered mail, return receipt requested, to defendants and Gordon Trapp. The contract further provided that notice would be deemed made when mailed or served.

It is undisputed that plaintiff did not deliver a check for $35,000 or a written notice on or before March 1, 1988, either by personally serving defendants or their attorney or by mailing the check and notice to defendants and their attorney. Although plaintiff testified that he attempted delivery on four occasions, this is insufficient to establish compliance with the terms of the contract. We note that it is also questionable whether the letter plaintiff attempted to deliver on those occasions would have been adequate to be considered a notice of intent to exercise the option. The letter appeared to be a request for an extension of time. It is not clear that what was intended by the notice was an unconditional exercise of the option in accordance with the terms of the option agreement. (Cf Birkmeier v. Herget National Bank (1984), 102 Ill. 2d 548, 551.) Absent such an exercise, the option never became a present contract. See Morris v. Goldthorp (1945), 390 Ill. 186, 195.

The trial court’s finding that plaintiff failed to show that defendants never intended to fulfill the terms of the contact was also not against the manifest weight of the evidence. There is nothing in the contract which required defendants to inform plaintiff of their current address. Defendant Klein’s testimony established that defendants would have received a notice mailed to the subject property as their mail was being forwarded to them in North Carolina. Any notice mailed would have been deemed served on the date of mailing.

Trial testimony also indicated that a mistake may have been made by plaintiff and his partner, Jeffrey Walker, regarding the date the option expired. This could explain why no notice was delivered to defendants’ attorney or was mailed on or before March 1, 1988.

An opposite conclusion from that reached by the trial court is not clearly evident based on this record.

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

Affirmed.

REINHARD, P.J., and DUNN, J., concur.