author: JUSTICE HARTMAN

text:
    FRANK NOVAK AND SONS, INC., Plaintiff-Appellee and Cross-Appellant, v. SOMMER AND MACA INDUSTRIES, INC., Defendant-Appellant and Cross-Appellee.
    First District (2nd Division)
    No. 1—88—1953
    Opinion filed April 25, 1989.
    Rehearing denied May 25, 1989.

      Winston & Strawn, of Chicago (James J. White, of counsel), for appellant.
    Richter & Jaros, of Chicago (Thomas C. Dudgeon and Arthur G. Jaros, Jr., of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

This suit was filed by plaintiff-appellee and cross-appellant Frank Novak & Sons (Novak) to obtain payment based on numerous invoices submitted over a period of years to defendant-appellant and cross-appellee Sommer & Maca Industries (Somaca), representing goods shipped to and accepted by Somaca over that period. In a bench trial, judgment was entered for Novak in the amount of $353,898.78.

The issue raised in the appeal is when Novak’s cause of action accrued for purposes of the applicable limitations period. The issue raised in the cross-appeal is whether Novak is entitled to prejudgment interest.

Somaca assembles, manufactures, and markets glass cutting and polishing machinery. Novak is operated by brothers Frank and Laddie Novak and fabricates sheet metal parts for use in various machines. Both are closely held Illinois corporations, which began doing business with each other in 1953.

The evidence reveals that, typically, Somaca submitted a written purchase order to Novak accompanied by drawings, blueprints, and specifications, which Novak would then fabricate accordingly. Somaca later integrated the parts into the machines it assembled. Novak’s work was priced on a “time and material” basis. For every purchase order submitted by Somaca, Novak completed the work and the fabricated products were accepted by Somaca without objection. This business relationship continued until late 1976. The exact nature of this relationship is subject to contradictory testimony and conflicting, incomplete business records presented by both parties.

Sometime in the 1960s, Somaca began objecting to Novak’s slow billing methods. In 1966, counsel for Somaca wrote three letters (the 1966 letters) to Novak strongly requesting that it send bills in a regular and timely fashion and outlining a new policy for payment when invoices were not sent within 30 days of delivery of the goods. These letters were personally shown to Frank and Laddie Novak in 1966 by Somaca employee Paul Proska. Frank read the letters and agreed with their contents. Proska kept possession of the letters; Frank had no copies. Thereafter, Novak sent some bills to Somaca.

Despite continued billing problems in subsequent years, business continued between the parties. In accordance with the August 15, 1966, letter from Somaca’s counsel, when Novak did not submit an invoice within 30 days for work completed, Somaca’s cost accounting department estimated the probable charges for Novak’s products so that Somaca could price its own machines, which incorporated Novak’s fabrications, for later sale to its customers. When Somaca received invoices more than 30 days after the goods were delivered, it paid Novak only the estimated amount, a compensation policy which also had been outlined in the August 15, 1966, letter. Novak accepted two such payments in 1968. Around 1969, Novak stopped sending invoices to Somaca, and Somaca stopped requesting them. Somaca continued to submit purchase orders to Novak, however, and Novak continued to deliver the fabricated products as ordered.

This somewhat unique business relationship between the parties persisted until October 1976. According to Somaca, Novak did not bill it from 1969 through 1976. Novak’s former accountant, however, testified to billings of Somaca for about $30,000 in 1975 or 1976. Despite Frank Novak’s concern about the uncompensated work, he explained he “just didn’t have the time” to bill Somaca due to the amount of work and the small size of his business. In 1971 or 1972, Frank requested and received “advances” from Somaca totalling $7,840 and $9,800.

During this period, Somaca did not send Novak written requests for invoices, but Jack Hynes, Somaca’s comptroller, testified that prior to 1971, he orally solicited prompt billing three times, which Laddie Novak laughed off. Somaca’s independent auditor also averred he sent annual requests to Novak, which went unanswered, in an effort to determine the amount of the indebtedness. Somaca’s records did not reveal any payments to Novak after 1972. According to one of Novak’s outside accountants, however, Novak’s records show it received $10,500 and $10,574.39 payments from Somaca in late 1974 or 1975.

During the 1969-77 period, Somaca recorded its estimates of the amount owed Novak as an account payable in its ledgers and as part of the accounts payable balance in its financial statements. The estimated costs of the goods were deducted from Somaca’s corporate income. These estimations, kept on a running basis, eventually reached $353,898.78.

For the same period, Novak reflected the sales to Somaca as a running account in its own books. Somaca’s work was such a major part of Novak’s business that it maintained a separate Somaca general ledger accounts receivable line. The Somaca general ledger receivables ranged from $27,793 to $62,692 between 1971 to 1977. In 1977, the ledger amount owed by Somaca to Novak was $58,079. Novak later suggested that its ledger was not properly maintained and did not reflect the actual amount receivable from Somaca.

Novak’s billing of Somaca was “speeded up” when the United States Internal Revenue Service began inquiring about the outstanding Somaca accounts receivable. In July 1977, Novak delivered a “batch” of invoices to Somaca for work completed in 1969 and following years. A second group was delivered in December 1977 or January 1978; in all, over 1,100 invoices reflected an amount owed to Novak, as stipulated by the parties, of $491,683.15. After full payment was refused, Novak filed a verified complaint in August 1978 praying for $474,570.65.

Novak’s complaint is based upon three theories: (1) an account stated; (2) breach of contract; and (3) quantum meruit. Somaca admits that Novak completed all work satisfactorily and in a timely fashion, but denies any obligation to pay for goods delivered prior to September 1974. It raised several affirmative defenses, including the Uniform Commercial Code (UCC) statute of limitations in contracts for sale (Ill. Rev. Stat. 1977, ch. 26, par. 2 — 725), waiver, and laches. Somaca further admitted owing $74,431.03 for invoices representing goods delivered to it within four years of the 1977 billing.

Following extensive pretrial proceedings, the case went to bench trial on April 7, 1988. After considering testimony, other evidence, briefs, and arguments of counsel, the circuit court, in a written order dated May 23,1988, found as follows:

(1) palpable laches and failure to follow reasonable business practices was attributable to both parties;

(2) the 1977 invoices delivered by Novak were stale and self-serving estimates;

(3) there was no cause of action for an account stated;

(4) the equitable remedies of quantum meruit and quantum valebant were inappropriate; and

(5) Novak’s cause of action accrued at the time Somaca first refused to make payment.

Resorting to “equitable principles to effect substantial justice,” the court entered judgment in Novak’s favor and against Somaca for $353,898.78, plus court costs, and without interest or penalty. Somaca thereafter filed its notice of appeal, seeking complete reversal of the judgment and, seven days later, Novak filed a cross-appeal, contesting the circuit court’s denial of prejudgment interest.

For the purposes of this appeal, we consider certain portions of the circuit court’s order as critical:

“The Court finds that the lack of seasonable invoicing or timely demand for payment, and the failure of [Somaca] to remit or offer any payment, puts the alleged breach beyond the strictures of the ‘tender of delivery’ date as the date of accrual of the cause of action, and the applicability of the Uniform Commercial Code at Chapter 26, 2 — 725 [citation]. The action accrued at the time the buyer refused to make payment.
Under the circumstances and the findings of the court, the court, relying on the provisions of the Uniform Commercial Code at Chapter 26, sections 1 — 102(3), 1 — 203, 1 — 204, and 1— 205 has resorted to equitable principles to effect substantial justice.”

These cited provisions of the UCC refer to sections providing: variation of the UCC provisions by alternative agreement (section 1— 102(3)); the obligation of good faith (section 1 — 203); the explanation of “reasonable time” and “seasonably” (section 1 — 204); and the definition of “course of dealing” (section 1 — 205).

I

The only issue Somaca raises on appeal is whether the circuit court erred in deciding that the cause of action did not accrue until Somaca refused to make payment. It initially contends that no agreement existed between the parties as to when payment was due and, therefore, the gap-filling provisions of the UCC establish that payment was due at the time of delivery of the goods. (Ill. Rev. Stat. 1977, ch. 26, par. 2 — 310.) Somaca then suggests that its failure to pay Novak at the time of delivery constituted a breach of contract under the UCC, and any cause of action accrued at that point. Under the statute of limitations provided in the UCC, Somaca continues, an action for breach of any contract for sale of goods must be commenced within four years after the cause of action has accrued. (Ill. Rev. Stat. 1977, ch. 26, par. 2 — 725(1).) Somaca concludes that section 2 — 725 cuts off any claims concerning payment for goods shipped prior to September 1974, since any cause of action arising out of these deliveries would have accrued more than four years before Novak filed suit.

It is evident that the circuit court found some agreement for payment between the parties represented by their course of dealings, which is allowed by section 1 — 102(3) of the UCC in variance of otherwise applicable UCC provisions. Section 1 — 205 defines “course of dealing” as a “sequence of previous conduct between the parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.” (Ill. Rev. Stat. 1977, ch. 26, par. 1 — 205(1).) The exact nature of the parties’ understanding as found by the circuit court is not entirely clear; however, its holding implies that, based upon their course of dealing, the parties required no payment for the fabricated goods until requested by Novak. Under the UCC, a course of dealing may be considered in the determination of the existence or proper construction of an agreement. (See Ill. Ann. Stat., ch. 26, par. 1 — 205, Illinois Code Comment, at 61-63 (Smith-Hurd 1963).) On review, the construction given an agreement by the circuit court will not be set aside unless contrary to the manifest weight of the evidence. Spircoff v. Spircoff (1979), 74 Ill. App. 3d 119, 127, 392 N.E.2d 363.

UCC section 2 — 310 in part provides (Ill. Rev. Stat. 1977, ch. 26, par. 2 — 310):

“Unless otherwise agreed payment is due at the time and place at which the buyer is to receive the goods ***.” (Emphasis added.)

Clearly, then, the parties are free to agree otherwise as to when payment would be due. Other UCC sections are in accord. Section 1— 203(3) (Ill. Rev. Stat. 1977, ch. 26, par. 1 — 102(3)) states:

“The effect of provisions of [the Code] may be varied by agreement, except as otherwise provided *** hut the parties may by agreement determine the standards by which the performance of such obligations is to be measured if such standards are not manifestly unreasonable.” (Emphasis added.)

See also Ill. Ann. Stat., ch. 26, par. 1 — 201, Uniform Commercial Code Comment, comment 3, at 48 (Smith-Hurd 1963).

Under section 2 — 310, therefore, “it is of no consequence that delivery by the seller or payment by the buyer is deferred — the parties are free to agree as to time of delivery and the terms of payment.” (Superior Partners v. Professional Education Network, Inc. (1985), 138 Ill. App. 3d 226, 231, 485 N.E.2d 1218.) Although payment of the purchase price ordinarily would be due upon delivery, the parties here “otherwise provided.” R.G. LeTourneau, Inc. v. Quinn Equipment Co. (1970), 131 Ill. App. 2d 295, 297-98, 266 N.E.2d 151.

Section 1 — 201(3) defines an “agreement” as “the bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance.” (Ill. Rev. Stat. 1977, ch. 26, par. 1 — 201(3).) These “other circumstances” are relevant to the parties’ bargain in fact and reflect a legislative policy in favor of the court’s determining the actual agreement of the parties. (See Personal Finance Co. v. Meredith (1976), 39 Ill. App. 3d 695, 702, 350 N.E.2d 781.) Therefore, the course of performance or course of dealing between parties may demonstrate an agreement that would displace a section 2 — 310 requirement of payment due upon tender of delivery. Cf. R.G. LeTourneau, Inc., 131 Ill. App. 2d at 297-98.

In the instant case, the circuit court’s finding of an alternative agreement between the parties, based on their course of dealing, and its resultant conclusion that Novak’s cause of action did not accrue upon delivery, but upon Somaca’s failure to pay when requested, were not against the manifest weight of the evidence.

The record evidence supports the circuit court’s finding of an alternative agreement for payment based on the parties’ course of dealing. Richard Carroll, executive vice-president of Somaca, testified that in the history of Novak’s account, when Somaca received an invoice, it was paid in a timely fashion. Frank Novak recalled that Somaca always paid promptly when billed, but he never submitted a bill at the time of delivery of the goods, nor was he ever requested to do so. Laddie Novak described the “typical way” Somaca acknowledged receipt of an invoice: sending Novak a check.

The three 1966 letters provide additional evidence in support of the circuit court’s finding of an agreement based on course of dealing. These letters demonstrate that Somaca intended to pay for Novak’s goods not at the time of delivery, but after the submission of invoices. The letters do not specifically provide the payment agreement between the parties, but reflect Somaca’s intent to pay no more than its own estimate when the invoices were not timely and go to the amount due, not the payment date. The letters thereby provide additional evidence of a course of dealing where payment was not considered due until after the receipt of an invoice or other similar billing request. Indeed, Novak’s response to the letters was to send bills to Somaca, which were then paid.

This interpretation of the 1966 letters is confirmed by Novak’s exhibits 22 and 23, statements of invoices that accompanied two Somaca payments in 1968 resulting from Novak’s billings, at the bottom of each of which is a reference to the August 1966 letter, indicating that Somaca would only pay the estimated amount on invoices submitted after 30 days. The reference corresponds to a deduction of an amount of the invoice totals and represents losses that Somaca “incurred in understating costs” in its estimates. These statements further support the theory that payment was not considered due until the submission of invoices from Novak.

• Based upon the foregoing, we cannot find that the circuit court’s conclusion was against the manifest weight of the evidence.

It is true that section 2 — 725(1) does not permit an agreement between the parties to extend the period of limitations beyond four years. (Ill. Rev. Stat. 1977, ch. 26, par. 2 — 725(1).) Because the parties through their course of conduct had agreed that payment was not due until requested by Novak, however, the statute of limitations is not extended; rather, the cause of action did not accrue, and the four-year limitations period did not begin to run, until payment was refused.

Somaca insists that this interpretation thwarts the policy behind the statute of limitations, to prevent recovery on stale demands. (Benyon Building Corp. v. National Guardian Life Insurance Co. (1983), 118 Ill. App. 3d 754, 762, 455 N.E.2d 246.) This argument disregards the nature of the ongoing business relationship between the parties, which was maintained through late 1976. Somaca continuously sent purchase orders to Novak, which fabricated the goods and delivered them according to each order. Despite its expressed displeasure, from mid-1966 and after, with the billing procedure, Somaca continued to order from Novak, accepting the goods without complaint and, for the most part, making few payments. Somaca at no time told Novak that it would refuse to pay for goods delivered four years prior to any eventual billing. Instead, Somaca provided its own procedure to be followed for late billings, in which Novak acquiesced. It may well have been this aspect of the case which caused the circuit court to note the requirement of good faith in the performance of all duties under the UCC (Ill. Rev. Stat. 1977, ch. 26, par. 1 — 203) as part of its finding that the action accrued at the time the buyer refused to make payment.

The policies behind section 2 — 725 are not frustrated by the circuit court’s finding regarding accrual of the cause of action under the circumstances here presented. The policy “that commercial interests are best served by quickly bringing finality to commercial transactions” (Ill. Ann. Stat., ch. 26, par. 2 — 725, Illinois Code Comment, at 613 (Smith-Hurd 1963)) is not contravened where such transactions between the parties are continuous and ongoing, as in the present case. The judgment of the circuit court concerning accrual of the cause of action must be affirmed.

II

On cross-appeal, Novak asserts that the circuit court erred in refusing to award prejudgment interest on the full amount of the judgment or, alternatively, on the $74,431.03 admittedly owed but not paid by Somaca until later.

Prejudgment interest is awarded or denied on the basis of fact and, unless contrary to the manifest weight of the evidence, the circuit court’s determination will not be altered. (Pietka v. Chelco Corp. (1982), 107 Ill. App. 3d 544, 558, 437 N.E.2d 872.) Novak’s request for prejudgment interest was based upon section 2 of the act (section 2) regulating interest accrual (Ill. Rev. Stat. 1987, ch. 17, par. 6402). Absent express agreement between the parties otherwise, allowance of interest depends on this statutory authority. Hamilton v. American Gage & Machine Corp. (1976), 35 Ill. App. 3d 845, 852, 342 N.E.2d 758.

Novak claims that the August 15, 1966, letter, the subsequently issued purchase orders, and the typed 1977 invoices satisfy the statutory requirements for an “instrument of writing” required by section 2. As previously noted, however, the agreement found by the circuit court was based on the course of dealing between the parties, and not upon any written instrument. The 1966 letters merely evidence the course of dealing between the parties. Assuming, for the sake of argument, that the purchase orders referred to by Frank and Laddie at trial could be deemed sufficient written instruments under the statute (Hufford v. National Retailer-Owned Grocers, Inc. (1958), 16 Ill. App. 2d 1, 11, 147 N.E.2d 437), only one such purchase order from 1970 was presented to the court and reflected a charge of less than $1,000; it was never received into evidence, but was marked for identification purposes only, and was used solely as an aid in explaining Novak’s billing procedures. The 1977 invoices were explicitly determined by the circuit court to be stale and self-serving estimates arrived at after the amicable business relationship between the parties worsened. The circuit court did not err in rejecting the invoices as insufficient to constitute written agreements.

Further, there was no fixed and easily calculated amount due. (Tomaso v. Plum Grove Bank (1985), 130 Ill. App. 3d 18, 29, 473 N.E.2d 588; Martin v. Orvis Brothers & Co. (1974), 25 Ill. App. 3d 238, 251, 323 N.E.2d 73.) Novak’s records reflected a Somaca debt of $58,000; Somaca’s estimates, repeatedly described in trial testimony as “guesses,” showed $353,899; the invoices found to be stale and self-serving estimates amounted to $491,683 due. Given the contradictory trial testimony, with the conflicting and incomplete business records, a fixed and easily calculated amount due did not exist. The circuit court’s refusal to award prejudgment interest was not against the manifest weight of the evidence for this reason as well.

Somaca’s failure to pay the estimated sums carried on its books is claimed by Novak to constitute an unreasonable and vexatious delay which provided an alternative basis for an award of prejudgment interest. Whether Somaca unreasonably and vexatiously delayed payment is a question of fact (Hamilton, 35 Ill. App. 3d at 854); implicit in the circuit court’s denial of prejudgment interest here is a factual determination that such delay did not exist. Neither an honest dispute as to the existence of a legal obligation (Emmenegger Construction Co. v. King (1982), 103 Ill. App. 3d 423, 429, 431 N.E.2d 738) nor the defense of a lawsuit can be regarded as an unreasonable and vexatious delay of payment (Pietka, 107 Ill. App. 3d at 557-58), unless the dilatory conduct by a litigant approximates actual fraud (Emmenegger Construction Co., 103 Ill. App. 3d at 430; Hamilton, 35 Ill. App. 3d at 853-54), or obstacles have been thrown in the way of collection, or the debtor has otherwise induced the creditor to delay collection proceedings (Pietka, 107 Ill. App. 3d at 558).

A genuine dispute appears to have existed in the present case concerning the legal obligation to pay for goods delivered prior to September 1974. Somaca’s assertion of the statute of limitations defense is not unreasonable under the circumstances. The circuit court’s determination that prejudgment interest was not appropriate on the full estimated amount is not against the manifest weight of the evidence.

As to the debt for goods delivered after September 1974, Somaca has always admitted it owed something and stipulated that the amount was $74,431.03; at trial, however, it claimed that Novak never asked for it. Additionally, Somaca’s attorney stated that “in due course we will write a check and pay” the $74,431.03 amount, and at no time was there a discussion about interest on that figure. The exact circumstances surrounding Somaca’s failure immediately to pay the post-September 1974 debt are unclear; possibly, it may have been related to the litigation. Novak, which bears the burden on cross-appeal, offers only its conclusion that Somaca’s delay in payment is unreasonable and vexatious, but does not demonstrate conduct approximating fraud, “obstacles” put in the way of collection by Somaca, or any evidence that Somaca “induced” Novak to delay collection proceedings.

For the reasons set forth above, the judgment of the circuit court must be affirmed.

Affirmed.

SCARIANO and EGAN, JJ., concur.

      According to Somaca’s brief, this stipulation was not made part of the record; however, both parties refer to this stipulation, which is reproduced in the appendix attached to Somaca’s brief.

      There are considerable differences between the various amounts allegedly owed by Somaca to Novak, according to the documents:
      (1) $58,079 (Novak’s own ledger);
      (2) $353,898.78 (Somaca’s own estimates for its accounts payable calculation);
      (3) $474,570.65 (Novak’s sworn prayer);
      (4) $491,683.15 (stipulated total of invoices included in the 1977 billings).

      Under section 2 — 208(1) (Ill. Rev. Stat. 1977, ch. 26, par. 2 — 208(1)):
      “Where the contract for sale involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection shall be relevant to determine the meaning of the agreement.”
      Course of dealing refers to “a sequence of conduct between the parties previous-to the agreement in controversy as contrasted to the sequence of conduct after the agreement or a practical construction of it by the parties,” which is course of performance. (Emphasis in original.) (Ill. Ann. Stat., ch. 26, par. 1 — 205, Illinois Code Comment, at 62 (Smith-Hurd 1963).) The exact nature of the conduct in this case appears to be both previous and subsequent to the “agreement”; both course of dealing and course of performance may have equivalent meaning in certain instances, making a detailed differentiation unnecessary here. See Ill. Ann. Stat., ch. 26, par. 1 — 205, Uniform Commercial Code Comment, comment 2, at 65 (Smith-Hurd 1963).

       The letters do not constitute the agreement between the parties, but merely provide evidence that Somaca did not intend to pay Novak until some manner of request, such as an invoice, was received, and so provide support for the court’s finding of an agreement for payment as shown by course of dealing.

       Novak also contends that Somaca, in its original verified answer, made a binding judicial admission that payment was to be made only after receipt of an invoice. Somaca originally answered that it agreed to pay Novak for “each order upon being invoiced promptly and accurately and after satisfaction to [it] that the price for the work was fair and reasonable.” (Emphasis added.) In an amended answer, Somaca averred the only express factual agreement between the parties concerned place of delivery and quantity, and that if Novak submitted invoices simultaneously with or promptly after delivery, Somaca would pay promptly. We find the verified original answer, as underscored above, to be a judicial admission that no payment was anticipated at the time of delivery. Baker-Wendell, Inc. v. Edward M. Cohon & Associates, Ltd. (1981), 100 Ill. App. 3d 924, 929, 427 N.E.2d 317; Dark v. United States Fidelity & Guaranty Co. (1988), 175 Ill. App. 3d 26, 33-34, 529 N.E.2d 662.

       Justice Egan participated in the decision of this case prior to becoming a member of the sixth division.


source: Caselaw Access Project

author: JUSTICE RIZZI JUSTICE McNAMARA,

license: Public Domain

text:
    THE HANOVER INSURANCE COMPANY, Plaintiff-Appellee and Cross-Appellant, v. WILLIE SMITH et al., Defendants (Joan Fried, Defendant-Appellant and Cross-Appellee).
    First District (3rd Division)
    No. 1—87—0438
    Opinion filed April 26, 1989.
    Rehearing denied May 23, 1989.

      McNAMARA, J., dissenting.
    Bernard Allen Fried, of Chicago, for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Lawrence R. Moelmann, and Kathryn A. Spalding, of counsel), for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Appellant, Joan Fried, appeals from a judgment of the circuit court of Cook County awarding attorney fees and costs to plaintiff, Hanover Insurance Company (Hanover). Hanover cross-appeals the amount of the award. On appeal, Fried argues that (1) Hanover, as indemnitee, was not entitled to indemnification of the fees and costs expended where such expenses arose out of the execution of an appeal bond which was adjudged null and void and (2) Hanover unilaterally breached the agreement that Fried would supply counsel at her own expense by improperly discharging the attorney hired by Fried, hiring its own attorney and charging Fried, as indemnitor, for the costs and expenses of hiring the new attorney. Hanover argues that the trial court erred in denying it the full amount of fees and costs requested for indemnification. We affirm in part and reverse and remand in part.

The dispute involved herein arises out of a personal injury action that was filed in 1975 by Willie Smith against Joan Fried, James Lewis and the Garden of Paradise Missionary Baptist Church (Church). Smith ultimately obtained a judgment against Fried, Lewis and the Church in the amount of $15,000 plus costs.

Desiring to appeal the judgment in favor of Smith, Fried obtained an appeal bond on behalf of herself, Lewis and the Church. The bond obtained by Fried was from Hanover. Fried posted a letter of credit for $18,250 as collateral and entered into an indemnity agreement with Hanover.

In 1981, this court affirmed the judgment against Lewis and the Church and reversed the judgment against Fried. (Smith v. Fried (1981), 98 Ill. App. 3d 467, 424 N.E.2d 636.) Smith then demanded that Hanover make payment for the amount of the judgment. Fried, however, instructed Hanover to deny the claim for payment, contending that the bond was null and void because it was not issued in compliance with Supreme Court Rule 305(a)(1) (107 Ill. 2d R. 305(a)(1)).

Hanover then filed a declaratory judgment in the circuit court of Cook County. Hanover also petitioned for substitution of counsel, costs and fees. The trial court found that the appeal bond was void because it did not comply with Supreme Court Rule 305(a)(1). However, the court then construed the void bond as a contract between Hanover and Fried, Lewis and the Church for the payment of any judgment in favor of Smith. The trial court thereafter granted summary judgment in favor of Smith and directed Hanover to pay $18,250 to Smith. Pursuant to the trial court’s order, Hanover paid the bond to Smith.

In a Supreme Court Rule 23 order issued June 29, 1983, this court reversed that judgment, holding that because the trial court found that the appeal bond was null and void, the void bond could not be rewritten to create a liability in Hanover that did not exist. Thus, this court reversed the trial court’s finding that Hanover was liable to Smith.

When Hanover moved to compel restitution from Smith, the trial court denied its motion. On appeal to this court, the trial court’s order denying Hanover’s motion was reversed and Smith was subsequently ordered by the trial court to pay restitution in the amount of $18,250 to Hanover.

Fried thereafter moved for return of the collateral from Hanover. Hanover, in response, moved for fees and costs arguing that it was entitled to offset any repayment based upon its claim of indemnity. The circuit court found that Fried was entitled to the return of her collateral and that Hanover, in returning the collateral, was entitled to offset the fees and costs expended during litigation. Although Hanover sought indemnification in the amount of $24,408.95, the trial court awarded it $8,600 in fees and $600 in costs to be satisfied from the collateral. Hanover was further ordered to return the balance of $9,050 to Fried. This appeal followed.

This court has previously found that the document entered into between Hanover and Fried clearly reflected the intention of the parties that Hanover’s liability, if any, be as surety on the appeal bond. We further found that the function of the bond and the intent of the parties was unambiguous. We further stated that the trial court erred in attempting to rewrite the void bond or to substitute a different contract for the one which was actually executed. Thus, we concluded that the trial court erred in finding that Hanover was liable to the original plaintiffs, Smith and his attorney, Sheldon Gomberg.

The issue in this case, however, is not the appeal bond but the indemnity agreement entered into between Hanover and Fried. It is Fried’s position that because the appeal bond is void, Hanover is not entitled to any fees and costs expended which arose out of the execution of the bond and, therefore, the indemnity agreement has no effect. We disagree.

Indemnity agreements are contracts and, as such, are to be construed like any other contract. (Fort Dearborn Cartage Co. ex rel. Chubb & Son, Inc. v. Rooks Transfer Co. (1985), 136 Ill. App. 3d 371, 375, 483 N.E.2d 618, 620.) In construing indemnity contracts, the primary focus is to give effect to the intention of the parties. (Gardner v. Padro (1987), 164 Ill. App. 3d 449, 453, 517 N.E.2d 1131, 1133.) This is especially so when the intent of the parties is clear and unambiguous. Sutton Place Development Co. v. Bank of Commerce & Industry (1986), 149 Ill. App. 3d 513, 516, 501 N.E.2d 143,145.

The agreement herein provided:

“In consideration of the execution of the bond herein applied for I hereby agree *** to reimburse the Hanover Insurance Company for all loss, costs, attorney’s fees and other expenses which said Company may incur or sustain in consequence of the execution of said bond.”

Although the underlying bond was declared void, clearly the expenses incurred by Hanover were “sustained in consequence of the execution of [the] said bond.” Fried cannot be heard to argue that because the bond was void, so was the separately entered into indemnity agreement. Fried’s actions in not filing the bond within the statutory time limit is the reason that the bond was declared void. It would be unequitable and unjust to allow Fried to now avoid her contractual obligation under the indemnity agreement and benefit from her actions. Such a decision would serve no purpose other than to encourage parties “to enter into indemnification agreements in bad faith.” In fact, this court stated previously:

“The defect that nullified the bond was not attributable to the [Hanover], but rather to [Fried] *** who failed to file it in a timely manner.” (Hanover Insurance Co. v. Smith (1st Dist. 1983), No. 82 — 2016 (unpublished order under Supreme Court Rule 23).)

Accordingly, we find that Hanover is entitled to indemnification under the terms of the indemnification agreement.

We furthermore find meritless Fried’s argument that Hanover improperly discharged the attorney hired by Fried. Based upon our reading of the agreement entered into between Fried and Hanover, there is no provision requiring Hanover to accept counsel provided by Fried. We will not rewrite the agreement entered into between Hanover and Fried. Accordingly, this argument must fail.

On cross-appeal, Hanover argues that the trial court erred in denying Hanover full indemnification of its fees and costs. We agree.

We initially note that a trial court’s award of fees is discretionary and as such will not be disturbed on review absent an abuse of that discretion. (In re Marriage of McFarlane (1987), 160 Ill. App. 3d 721, 729, 513 N.E.2d 1146, 1151.) The reasonableness of fees is based upon such factors as “the skill and standing of the attorney employed; the nature of the cause and the novelty and difficulty of the questions at issue; the amount and importance of the subject matter; the degree of responsibility in the management of the cause; the time and labor required; the usual and customary charge in the community; and the benefits resulting to the client.” Laff v. Chapman Performance Products, Inc. (1978), 63 Ill. App. 3d 297, 307, 379 N.E.2d 773, 781.

In the instant case, the record evinces that the fees requested by Hanover were not unreasonable. Because a demand was made upon Hanover to, on the one hand, refuse payment on the bond and, on the other hand, to make payment on the bond, Hanover was forced to file a declaratory action to determine the proper course of action. Smith and Gomberg thereafter petitioned the court to suspend Hanover from acting as a court-appointed surety because they alleged that Hanover was improperly refusing to make payment on a bond. Moreover, this particular cause has been appealed twice previously to this court and reversed twice previously. The attorneys informed the court of their expertise. They also submitted an affidavit setting forth itemized descriptions of the expenses and fees incurred in the litigation. In light of the number of parties involved in the litigation and the voluminous legal proceedings involved in this case, we cannot find that the attorney fees requested by Hanover are unreasonable.

We further note that in the agreement entered into between Hanover and Fried, Fried agreed to reimburse Hanover for “all” costs and attorney fees. Accordingly, we find that the trial court abused its discretion in denying Hanover full indemnification. Therefore, we affirm the portion of the trial court’s judgment finding a valid indemnification agreement and reverse the portion denying Hanover full indemnification. This cause is remanded to the trial court for proceedings consistent with this opinion.

Affirmed in part; reversed and remanded in part.

FREEMAN, P.J., concurs.

JUSTICE McNAMARA,

dissenting:

I dissent from the majority holding that Hanover is entitled to indemnification for attorney fees and costs. Moreover, even if it were entitled to indemnification, I would not find, as the majority holds, that Hanover sufficiently proved the reasonableness of the fees or that Hanover should receive all fees requested.

Rule 23 orders are not precedential, but the fact remains that on June 29, 1983, in a Rule 23 order (Hanover Insurance Co. v. Smith (1st Dist. 1983), No. 82 — 2016 (unpublished order under Supreme Court Rule 23)), we held .that the appeal bond here was void. We expressly refused to adopt the trial court’s construction of the void bond as a contract between Hanover and defendants. We rejected the trial court’s reasoning that the void bond became a binding obligation of Hanover as surety for the principals and that Hanover was obligated to pay the Smith judgment, plus interest, damages and costs.

Instead, we adopted Hanover’s argument that it had no liability under the bond and held that “the trial court’s finding, that Hanover was liable to Smith and Gomberg notwithstanding that the appeal bond was null and void, must be reversed.” (No. 82 — 2016, Rule 23 order at 5.) We relied on the well-established principle that “the trial court was not empowered to rewrite the void bond or to substitute a different contract.” (No. 82 — 2016, Rule 23 order at 5, citing In re Estate of Savage (1979), 73 Ill. App. 3d 656, 392 N.E.2d 263; People ex rel. Illinois State Scholarship Comm’n v. Harrison (1978), 67 Ill. App. 3d 359, 384 N.E.2d 947.) Now Hanover returns, in the fourth appeal regarding this 1975 personal injury, and reverses its position by asking us to find an enforceable contract under which it retains the right to attorney fees. I find no reason to, in effect, alter the prior decision of this court. (See Police Jury v. United States Fidelity & Guaranty Co. (1930), 171 La. 244, 130 So. 344 (where defendant surety on bond successfully argued it was not liable on the bond, the purpose of the consideration for furnishing the indemnity fell, and with it the contract of indemnity, and therefore it would be improper to allow defendant’s demand for attorney fees under that contract).) The indemnity agreement purports to indemnify Hanover against attorney fees in connection with the bond, and thus the agreement assumes a bond exists. The bond having been found void, the indemnity agreement is stripped of meaning and effect.

I would reverse the trial court order which found that, as a matter of law pursuant to the indemnity agreement, Hanover is entitled to indemnity of its attorney fees and costs from Fried.

Furthermore, I would find that even if there was liability for the attorney fees, Hanover failed to present adequate evidence, e.g., of the novelty and complexity of the issues, the expertise of the attorney, the services rendered, and the resulting benefits of the attorneys’ efforts. (See Baker v. City of Granite City (1983), 112 Ill. App. 3d 1096, 446 N.E.2d 531.) Where an indemnitee is entitled to attorney fees and costs, the indemnitee is required to establish by competent evidence its reasonable fees and costs, since the indemnitor i£ not necessarily liable for the amount the indemnitee unilaterally chose to pay. (Lamp, Inc. v. International Fidelity Insurance Co. (1986), 143 Ill. App. 3d 692, 493 N.E.2d 146.) This record shows grossly inadequate evidence to support the reasonableness of the attorney fees and costs which the majority now awards to Hanover in full.

Notably, it was the attorney retained at the sole cost of Fried who filed the original complaint for declaratory judgment, filed Hanover’s motion for summary judgment, and filed all pleadings up until the date of the July 27, 1982, trial court order. Other legal services consisted only of two appearances in court regarding Hanover’s demands for attorney fees. Also, the legal complexity or novelty of Hanover’s position is belied by its repeated declarations that its position was completely neutral as it was “merely a stakeholder.”

In addition, if any award were made at all, the trial court correctly reduced the fees requested by Hanover. From the date of the June 29, 1983, Rule 23 order, nothing remained regarding Fried’s position in relation to Hanover and the void bond. Thus, the subsequent litigation in which Hanover sought attorney fees was not a “direct consequence of the execution of the bond” pursuant to the indemnity agreement.

The trial court in the present dispute stated:

“From the moment this case began, not just reached this court, it seems to be a classic case of litigation run amok. Neither side in my view is blameless.
* * *
What I have done is, based upon the entire record, the papers filed, the hearing conducted today and all the arguments of lawyers, is to review the time spent on those portions of the proceedings that I believe are reasonably related to the execution of the appeal bond and necessarily incurred as a direct consequence of the execution of the bond.
I find that some of the time claimed ought not to be charged to Fried because it was not directly incurred as a result of the execution of the bond.
I think it is necessary to avoid windfalls to Hanover inasmuch as the fees were unnecessary in the execution.
I find that the concern with Hanover about its ability to write bonds in the Circuit Court might be a degree of concern. It is not something that Fried should be legally obligated to pay as a direct consequence of the execution of the bond.”

If I were to find Hanover was entitled to attorney fees as a matter of law, I would also hold that the trial court properly reduced the total fees requested.

       Justice McNamara participated in this opinion prior to his assignment to the sixth division.


author: PRESIDING JUSTICE JIGANTI

text:
    RIVIERA MANOR, INC., Plaintiff-Appellant, v. THE DEPARTMENT OF PUBLIC HEALTH et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—87—3818
    Opinion filed December 22, 1988.

      George B. Collins and Sandra L. Hertzberg, both of Collins & Bertelle, of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Rita M. Novak and Daniel T. Gillespie, Assistant Attorneys General, of Chicago, of counsel), for appellees.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Riviera Manor, Inc. (Riviera), is a licensed nursing home which was cited for several violations of the 1967 National Fire Protection Association Life Safety Code (see 77 Ill. Adm. Code 200.906 (1986)) (Life Safety Code) by the defendant, the Illinois Department of Public Health (Department). Following administrative proceedings, the Department assessed a $5,000 penalty and imposed a six-month conditional license. Riviera filed a complaint for administrative review, and the trial court confirmed the decision of the Department. Riviera has appealed, contending that: (1) the findings of the Department concerning the alleged violations of the Life Safety Code were against the manifest weight of the evidence; (2) the Department abused its discretion in classifying the purported violations as “type A” violations supporting imposition of the most severe penalties; (3) the inspection provisions of the Nursing Home Care Reform Act of 1979 (Ill. Rev. Stat. 1985, ch. llU/z, par. 4151 — 101 et seq.) (Act) are unconstitutional; (4) even if the Act is constitutional, the Department agents exceeded their authority in conducting an unreasonable inspection of the facility; and (5) the hearing officer abused his discretion in refusing to admit certain evidence offered by Riviera.

Riviera is licensed as a skilled and intermediate care facility owned and operated by Gus Potekin. In the early 1970s Riviera began to accept mental patients from State-operated facilities, and at the time of the administrative proceedings here, approximately 90% of its 170 residents were chronically mentally ill or severely retarded. Because of the nature of its resident population, Riviera experienced serious problems with patients wandering out of the facility.

On September 19, 1985, the Department received a hot-line complaint concerning safety violations at Riviera. Pursuant to this complaint, Department inspector Mario Vitale went to the facility at approximately 10 a.m. on September 25, 1985, to conduct an on-site inspection. Vitale was an architect and as such was concerned with the life-safety aspects of the facility. Vitale testified that when he arrived at Riviera, he observed two sets of doors at the front entrance. The outside doors led to a foyer and were unlocked. However, the interior foyer doors were locked and controlled by a buzzer located at the front desk. When Vitale asked whether Riviera had approval for electric locks, he was shown a copy of a letter from Gus Potekin to a Department administrator, Helen Steadman, thanking her for “granting us the use of an electric buzzer on the two interior doors.” The letter was dated September 24,1971.

Once inside, Vitale was accompanied on his inspection by Riviera’s administrator, Betty Frey. During the inspection, he observed that the hallway door leading to Room 124 was secured with a dead-bolt cylinder lock. Although there was a lighted exit sign above the door, it could not be opened without a key and did not have panic hardware. Vitale defined panic hardware as a device used to disengage a locked door in the event of an emergency. Upon gaining access to Room 124, Vitale observed that the door leading to the outside was locked by means of a horizontal latch bolt going from the door into the door frame. The bolt was located approximately 10 inches above the floor. An exit sign above the door was not lighted, and although the door had panic hardware, it could not be operated because of the latch bolt near the floor.

Vitale further testified that the hallway door leading to Room 138 was secured by a dead-bolt lock. The door providing egress from Room 138 to the outside of the building opened into an area closely confined by a chain link fence secured by a locked gate. Vitale stated that there was no safe area of refuge between the door and fence.

On the southeast side of the building, there was an exit provided by two doors. The right door was inoperable. The left door opened, but provided inadequate clearance and did not latch properly. There were two doors allowing egress from the basement. One led to a ramp which ended at a padlocked chain link fence, and the other led to a stairway which ended near the locked foyer doors.

As a result of his inspection, Vitale concluded that 4½ of the 8 available exit doors were locked. Two of the remaining doors led to areas closely confined by a fence. Only one exit provided access to a public way. Vitale testified that in his opinion, the locked doors constituted a “type A” violation under the Act, which is defined as a violation “presenting a substantial probability that death or serious mental or physical harm to a resident will result therefrom.” Ill. Rev. Stat. 1985, ch. 111½, par. 4151-129.

Vitale conducted a second inspection which began on the evening of October 8, 1985, and continued into the early morning hours of the following day. Vitale was accompanied by Daniel Schmidt, a State Police officer assigned to the Department. Vitale and Schmidt toured the outside of the facility for 15 minutes, then knocked at the front door and showed their photo identification cards to a woman who appeared at the door. She told them that she had to get the keys and walked away. After waiting approximately five minutes, the agents slipped the mechanism on the lock and gained entry to the facility. During the inspection that followed, Vitale and Schmidt found substantially the same conditions that existed on September 25. An incident report prepared by a Riviera employee concerning the October 8, 1985, inspection was not admitted into evidence.

Gus Potekin testified that Riviera had received permission from the Department for the front-door buzzer in 1971 and referred to the letter he wrote to Helen Steadman thanking Steadman for granting permission for the buzzer. Potekin stated that he showed the letter to the State Fire Marshall, who approved the facility on October 4, 1971. Potekin claimed that he had received permission to place locks on Rooms 124 and 138 and on the gate at the end of the basement ramp in 1974. Because of the serious problem of residents wandering out of the facility, Potekin drew up a floor plan showing the doors which were to be locked and submitted the plan for approval to Helen Steadman. According to Potekin, the letter referred to section 10 — 0004 of the Life Safety Code, which pertains to the locking of doors in buildings housing psychiatric patients. The attached floor plan, which was admitted into evidence at the administrative hearings, was dated March 4, 1974, and showed red Xs on the front interior doors, the hallway doors leading to Rooms 124 and 138, the east dining-room exit and the gate outside the basement ramp. The plan also contained the notation, written in red, “or where ever necessary from time to time.” The plan was marked “received for tentative approval” by a Department health surveyor, Nicholas Colaizzi.

Potekin testified that in response to his request to secure the areas in question, he received a letter from the Department’s program architect, Don Jardine. The letter was dated June 6, 1974, and stated as follows:

“The Department is approving the request made by you and the subject home regarding locks on designated doors as permitted by the Life Safety Code of 1967.
This approval takes into consideration the heavy emphasis you placed on the type of patients in said home. Another factor regarding this is that the said home is a one story building.
Apparently, permission was obtained by you from the State Fire Marshall’s office.
Please send a surveyor out to make sure that the staff has access to keys and are inserviced on the use of said keys. This will have to be done in order to satisfy the reluctance of some members of the department in granting this permission.”

Throughout the years, this letter was presented to various State and local inspectors who objected to the locked doors. Thomas Maher, an inspector from the State Fire Marshall’s office, testified that although he objected to the lock on Room 124 and felt “uncomfortable” approving it, he felt the matter had been decided by a higher authority after he was shown Jardine’s letter.

Potekin testified that Riviera held 36 fire drills each year and that several copies of the master key were kept in a firebox at each nurse’s station.

Don Jardine testified that he did not recall the specific circumstances surrounding Potekin’s request in 1974 to lock various doors at Riviera. He did state, however, that in his 28 years of experience with the Department he has never approved a dead-bolt cylinder lock such as the ones placed on Rooms 124 and 138. He stated that dead-bolt locks do not fulfill the requirement that egress be ensured in the event that no one with a key is nearby when a fire breaks out. Jardine testified that if a keyed lock is used, the door must be equipped with a device which releases the lock in case of an emergency.

At the conclusion of the administrative hearing, the hearing officer determined that the evidence established the following type A violations: (1) the hallway door of Room 124 was locked by a dead-bolt cylinder lock; (2) the outside door of Room 124 was secured shut by a slide-bolt latch; (3) the front interior doors were locked and required a key to exit; (4) only one leaf of the southeast exit door was operable; (5) the east dining-room door was locked despite the fact that it was designated as an exit on the evacuation plans; (6) egress from the basement was hindered by a locked exit door and a padlocked chain link fence. The hearing officer recommended the imposition of a six-month conditional license as a result of these violations, but recommended that the $5,000 fine mandated by section 3 — 305(1) of the Nursing Home Care Reform Act be waived because Riviera had expended $5,400 for new locking equipment. (Ill. Rev. Stat. 1985, ch. 111½, par. 4153 — 305(1).) The hearing officer also made a number of findings regarding type B and type C violations. However, Riviera does not appear to challenge these findings on appeal, and we will therefore not address them in this opinion.

On December 30, 1986, after entertaining Riviera’s written objections to its proposed decision, the Director of the Department issued a final decision adopting the hearing officer’s finding and recommendation as to the six-month conditional license. However, the Department did not adopt the hearing officer’s recommendation as to waiver of the fine and assessed a $5,000 fine against Riviera based upon the type A violations. This decision was confirmed by the circuit court on November 23, 1987.

Riviera first contends that the finding that the locked doors constituted a type A violation was against the manifest weight of the evidence. Riviera makes three specific arguments with respect to this contention: first, that section 10 — 0004 of the Life Safety Code permitted the locking of those doors based upon the population of psychiatric patients; second, that Riviera had Department approval for the locked doors dating back to 1974; and third, that the alleged violations of the Life Safety Code were not in fact supported by the record.

Regarding the first argument, section 10 — 0004 of the Life Safety Code provides as follows:

“It is recognized that in buildings housing various types of psychiatric patients, or used as penal institutions, it is necessary to maintain locked doors and barred windows that are equipped to confine and protect building inhabitants. Regarding this necessity, other sections of this code requiring the keeping of exits unlocked may be waived by the authority having jurisdiction. It is also recognized that some psychiatric patients are not capable of seeking safety without adequate guidance. In buildings where these conditions exist, reliable means for the rapid release of occupants shall be provided, such as the remote control of locks, or by keying all locks to keys commonly carried by or immediately available to attendants.” (Emphasis added.)

Riviera maintains that the above-quoted section of the Life Safety-Code permitted the locking of the doors in question based upon the resident population of psychiatric patients and the fact that there was a master-key system as well as 24-hour supervision at the home. It argues, therefore, that no waiver was required under the Code. We are not persuaded by this argument because the very wording of section 10 — 0004 states that the Code provisions regarding keeping doors unlocked “may be waived by the authority having jurisdiction.” The question then is whether such a waiver was in fact obtained by Riviera.

Riviera’s position, which forms the basis of its second argument, is that the letter by Don Jardine dated June 6, 1974, and quoted earlier in this opinion constituted a waiver of the Code’s requirement of keeping doors unlocked. Riviera maintains that it relied upon the language of the letter approving “locks on designated doors” and that the Department should therefore be estopped from finding that the locks violated the Life Safety Code. The “designated doors” mentioned in the June 6 letter apparently referred to the floor plan submitted by Riviera which showed red Xs on certain exits. The floor plan, however, does not designate locks on all of the exits which the hearing officer found to have been locked or obstructed in violation of the Code. Moreover, the letter contains no mention of the type of locks for which Department approval was purportedly obtained. Don Jardine testified that with regard to dead-bolt locks and slide-bolt locks, “by just common knowledge, common experiences, this type of lock could never be approved anywhere anyplace.” Although Jardine did not specifically recall the request made by Riviera in 1974, he testified that he had never approved a dead-bolt lock because of the danger such locks would pose in the event of an emergency. The findings of the administrative agency with respect to this question of fact are based upon the credibility of the witnesses and accordingly entitled to great deference. (Markowski v. Edgar (1986), 151 Ill. App. 3d 176, 502 N.E.2d 1304.) The fact that Riviera was able to persuade State and local inspectors since 1974 that Department approval for the locks had been obtained provides no basis for overturning the director’s decision.

Riviera’s third argument is that the factual findings that certain doors were locked in violation of the Life Safety Code were not supported by the record. It claims that two of the locked doors were not intended as fire exits and therefore did not violate the Life Safety Code. Riviera also maintains that the slide-bolt latch on the exit door of Room 124 was placed 10 inches above the floor so that it would be obvious to people crawling on the floor in an effort to avoid smoke inhalation. The record shows that the hearing officer reviewed the evacuation plan and heard the testimony of the witnesses regarding the violations in question. In our view, these matters are uniquely factual in nature and were properly resolved by the trier of fact.

Riviera next contends that the Department failed to meet its burden of showing that the locked doors constituted a type A rather than a type B violation. A type A violation is defined as a violation which “creates a condition or occurrence relating to the operation and maintenance of a facility presenting a substantial probability that death or serious mental or physical harm to a resident will result therefrom.” (Ill. Rev. Stat. 1985, ch. lllVa, par. 4151 — 129.) A type B violation is one which “creates a condition or occurrence relating to the operation and maintenance of a facility directly threatening to the health, safety or welfare of a resident.” Ill. Rev. Stat. 1985, ch. 111½, par. 4151 — 130.

The Department presented the testimony of Mario Vitale and Don Jardine on the issue of whether the locked doors created a substantial probability of death or serious harm sufficient to support their classification as a type A violation. Both testified that the locks used by Riviera would improperly obstruct egress from the building in the event of a fire or other emergency. However, the testimony of Gus Potekin and other witnesses on behalf of Riviera established that the residents were under full 24-hours supervision and that the locks were all keyed to master keys which were readily available to staff members during an emergency. The record shows that staff members were frequently instructed on the master-key system and that 36 fire drills were conducted each year. Furthermore, Riviera had passed a multitude of inspections from State and local agencies, including inspections by the State Fire Marshall, since 1974. In our view, this evidence militates against the Department’s conclusion that the violations were so severe as to create a substantial probability of death or great harm to the residents. We are aware of the proposition that courts will not ordinarily interfere with the discretionary authority of an administrative body unless it has been exercised in an arbitrary or capricious manner. (Neff v. Miller (1986), 146 Ill. App. 3d 395, 496 N.E.2d 1073.) In the instant cause, however, it appears that the Department’s decision to classify the violations as type A rather than type B lacks a reasonable basis and must accordingly be reversed. (See City of Hurst v. Illinois Commerce Comm’n (1983), 120 Ill. App. 3d 354, 458 N.E.2d 568.) The type A violations assessed by the Department are accordingly reduced to type B violations.

Riviera next contends that the inspection provisions of the Nursing Home Care Reform Act of 1979 are unconstitutional because they fail to provide procedural safeguards limiting the time, place, scope and manner of entry with respect to administrative inspections.

The inspections conducted on September 25, 1985, and October 8 and 9, 1985, were conducted pursuant to the authority of sections 3— 107 of the Act, which provides as follows:

“The Department and the city, village or incorporated town shall have the right at any time to visit and inspect the premises and personnel of any facility for the purpose of determining *** compliance with this Act or with the local ordinances which govern the regulation of the facility.” (Ill. Rev. Stat. 1985, ch. 111½, par. 4153-107.)

Section 3 — 212(b) provides:

“In determining whether to make more than the required number of unannounced inspections *** the Department shall consider one or more of the following: previous inspection reports; the facility’s history of compliance with standards, rules and regulations promulgated under this Act and correction of violations, penalties or other enforcement actions; the number and severity of complaints received about the facility; any allegations of resident abuse or neglect; weather conditions; health emergencies; other reasonable belief that deficiencies exist.” (Ill. Rev. Stat. 1985, ch. 111½, par. 4153-212(b).)

Section 3 — 214 provides:

“Any holder of a license *** shall be deemed to have given consent to any authorized officer, employee or agent of the Department to enter and inspect the facility in accordance with this Article. Refusal to permit such entry or inspection shall constitute grounds for denial, nonrenewal or revocation of a license ***.” Ill. Rev. Stat. 1985, ch. 111½, par. 4153 — 214.

Statutes providing for warrantless administrative searches in closely regulated industries have been upheld where: (1) the government’s interest in regulating the industry is substantial; (2) the warrantless inspections are necessary to further the regulatory scheme; and (3) the statutory inspection provides a “constitutionally adequate substitute for a warrant.” (New York v. Burger (1987), 482 U.S. 691, 702, 96 L. Ed. 2d 601, 614, 107 S. Ct. 2636, 2644.) In order to fulfill the requirement that the statute provide an adequate substitute for a warrant, “it must advise the owner of commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers.” (Burger, 482 U.S. at 703, 96 L. Ed. 2d at 614, 107 S. Ct. at 2644.) A statute will be found to satisfy the requirement of limiting the discretion of the inspecting officers if it is “carefully limited in time, place and scope.” Burger, 482 U.S. at 703, 96 L. Ed. 2d at 614, 107 S. Ct. at 2644.

Riviera does not contest the fact that the nursing-home industry is a closely regulated industry. It also concedes that the government has a substantial interest in regulating the industry and that warrantless inspections are necessary to further the regulatory scheme. Riviera contends that the statute in question, however, does not properly limit the discretion of the inspecting officers because it fails to carefully limit the authorized inspections with respect to time, place and scope.

Although this appears to be the first such constitutional challenge to the inspection provisions of the Illinois Act regulating the nursing-home industry, the Department has called our attention to a California case in which similar provisions were upheld. In People v. Firstenberg (1979), 92 Cal. App. 3d 570, 155 Cal. Rptr. 80, cert. denied (1980), 444 U.S. 1012, 62 L. Ed. 2d 641, 100 S. Ct. 660, the California Appellate Court upheld a statute which provided:

“ ‘Any duly authorized officer, employee, or agent of the state department may enter and inspect any long-term health care facility, including, but not limited to, interviewing residents and reviewing records, at any time to enforce any provision of [the health and safety code]. Inspections conducted pursuant to complaints filed with the state department shall be conducted in such a manner as to ensure maximum effectiveness. No advance notice shall be given of any inspection conducted pursuant to this chapter unless previously and specifically authorized by the director or required by federal law.’ ” (Firstenberg, 92 Cal. App. 3d at 579-80, 155 Cal Rptr. at 85, quoting Cal. Health & Safety Code §14.21 (West 1979).)

The plaintiff in Firstenberg, like Riviera in the instant cause, argued that the statute in question was not sufficiently circumscribed as to time, place and scope. The court noted that the statute limited entry to officers, employees and agents of the State Department charged with regulating the nursing-home industry and further limited the purpose of entry to the enforcement of the provisions contained in the Health and Safety Code. With respect to the statute’s authorization of entry “at any time,” the court stated “[l]ong-term health care facilities, by statutory definition [citation], provide 24-hour skilled nursing services. They have no business hours per se. Within this industry, a provision for inspection at any time is not only reasonable, it is essential to successful enforcement of the regulatory provisions.” Firstenberg, 92 Cal. App. 3d at 582,155 Cal. Rptr. at 87.

Like the statute considered in Firstenberg, the inspection provision of the Act before us limits entry to Department personnel for the specific purpose of determining whether the facility is in compliance with the Act or the local ordinances regulating the facility. (Ill. Rev. Stat. 1985, ch. 111½, par. 4153 — 107.) Furthermore, section 3 — 212(b) sets forth certain criteria to be used by the Department in determining whether to conduct more than one inspection in a year. (Ill. Rev. Stat. 1985, ch. 111½, par. 4153 — 212(b).) Among the criteria listed are “the number and severity of complaints received about the facility” and “any allegations of resident abuse or neglect.” (Ill. Rev. Stat. 1985, ch. 111½, par. 4153 — 212(b).) With respect to the Act’s authorization of inspections “at any time,” we agree with the Department’s position that the provision is reasonable considering the type of facility regulated and the need to “ascertain fully and realistically the nature and quality of the day-by-day care and protection being afforded the patient.” Uzzillia v. Commissioner of Health (1975), 47 A.D.2d 492, 497, 367 N.Y.S 2d 795, 801.

Riviera next contends that even if we find the Act constitutional, the Department agents exceeded their authority in conducting the inspection on October 8 and 9, 1985. The Department asserts that all of the evidence concerning the locked door violations was discovered by Agent Vitale during his September 25, 1985, inspection, which Riviera does not challenge as unreasonable. Riviera does not counter this assertion in its reply brief, and Vitale’s testimony that his October 8 and 9 inspection revealed substantially the same conditions as the September 25 inspection appears to support the Department’s position. For this reason, it is not necessary for us to consider Riviera’s contentions that the agents exceeded the scope of their authority in conducting the October 8 and 9 inspection and that the hearing officer abused his discretion in refusing to admit an incident report detailing the agents’ behavior during that inspection.

Accordingly, the judgment of the circuit court is reversed insofar as it confirms the Department’s finding of type A violations and the resulting $5,000 fine and six-month conditional license. The violations are reduced to type B violations, and the cause is remanded to the circuit court with directions to remand to the Department for consideration of any appropriate penalty. The judgment of the circuit court is affirmed in all other respects.

Affirmed in part; reversed and remanded in part.

JOHNSON and McMORROW, JJ., concur.


author: PRESIDING JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DIONELL PAINE, Defendant-Appellant.
    First District (1st Division)
    No. 1—86—1231
    Opinion filed December 27, 1988.
    Rehearing denied June 2, 1989.
    Modified opinion filed June 5, 1989.

      Steven Clark, Paul Alexander Rogers, and Debra R. Salinger, all of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Thomas V. Gainer, Jr., and Anthony J. Carballo, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

The defendant, Dionell Paine, was charged by indictment with armed robbery, unlawful restraint and armed violence. Following a bench trial, the defendant was found guilty of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2), and sentenced to 10 years’ imprisonment. We are called upon to determine: (1) whether the trial court properly denied the defendant’s motion to quash arrest and suppress evidence; (2) whether the trial court abused its discretion in allowing the prosecution to introduce Rodney Mitchell’s prior inconsistent statement for purposes of impeachment and as substantive evidence; and (3) whether section 115 — 10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 115 — 10.1), authorizing the substantive use of prior inconsistent statements, is constitutional; and (4) whether the enactment of the statute was within the legislature’s authority.

Prior to trial, the defendant filed a motion to quash arrest and suppress evidence. At the hearing on the motion, Officer Ronald Robinson testified that on July 9, 1985, the day of the armed robbery of the Top Value Beauty Supply, he interviewed Rodney Mitchell, one of the men arrested for the armed robbery. Mr. Mitchell identified Ronald Stewart (a/k/a Bimbo) as his accomplice to the armed robbery. Subsequently, Derrick Richardson, one of the victims, stated that Ronald Stewart was not a participant in the robbery. Mitchell then named Dionell Paine as his accomplice and provided Officer Robinson with the defendant’s address as 1311 South Christiana, Chicago, Illinois. This was the same address that Mitchell was seen entering into immediately after the robbery by the victim, Richardson. Officer Robinson and Mitchell went to that address, but the defendant was not there. Thereafter, Officer Robinson drove Mitchell to the 11th District police station, where Mitchell provided Officer Robinson with a description of the offender.

Although this description was received on July 9, 1985, the defendant was not arrested until July 17, 1985, when Officer Robinson and his partner received information from a citizen that the defendant would be meeting that citizen at 3401 West Roosevelt Road, Chicago, Illinois, at 10 p.m. The police and the citizen had prearranged a signal by which to identify the defendant upon his arrival at that location. The signal was given when the defendant and the citizen met, and Officer Robinson approached the defendant and two other men and asked them to identify themselves.

Upon recognizing the name and address given by the defendant as being the same name and address given by Rodney Mitchell, Officer Robinson placed defendant under arrest and then conducted a lineup at which defendant was identified by Derrick Richardson.

It was stipulated between the parties that on July 9, 1985, Richardson was unable to identify the defendant from a police photo book as one of the robbers, although the defendant’s picture was included in the book. It was also stipulated that on that same date Rodney Mitchell was shown that same photo book and did identify Dionell Paine as his accomplice. The trial court denied defendant’s motion to quash arrest and suppress evidence.

During the trial it was stipulated between the parties that Rodney Mitchell gave a signed, written statement on July 9, 1985, to Assistant State’s Attorney Michael Kelly, naming Dionell Paine as his accomplice in the robbery of the Top Value Beauty Supply. Mitchell’s written statement in summary reveals that he and the defendant met on July 9, 1985, at Roosevelt and Homan and discussed robbing the Top Value Beauty Supply at 3402 West Roosevelt, Chicago, Illinois. Mitchell, in his statement, related that the defendant told him that he had a gun, and they proceeded to the Top Value Beauty Supply, where Mitchell went inside three times to see if anyone was inside. He further related that he then reentered the store followed by the defendant, who pulled a gun and shouted, “This is a stickup.” Mitchell next threw some rope to the defendant to tie up one of the employees, leaped over a counter in the store and took some money out of the cash register.

The defendant went into the backroom of the store with Shirley Hubbard, the other employee, while Mitchell remained in the front of the store as a lookout. Thereafter, Mitchell and the defendant fled and the defendant gave Mitchell $15 to $20 for assisting him in the armed robbery. However, during Mitchell’s trial testimony, he denied seeing the defendant on July 9, 1985. He further testified that he signed the written statement that implicated the defendant because he thought that he was helping himself. Mitchell pled guilty to the armed robbery and received the minimum sentence of six years’ imprisonment.

Shirley Hubbard testified that she was working at the Top Value Beauty Supply on July 9, 1985, as a salesperson/cashier. She was in the rear of the store eating lunch and talking on the telephone when she noticed Derrick Richardson waiting on a customer who had previously been in the store purchasing hair products. Ms. Hubbard then saw that same customer jump over the counter, heard a loud crash and the words, “This is a stickup.” Another person was in the rear of the store holding a gun to Richardson’s head. The man with the gun told her to walk towards him and not look at him. They proceeded to the office, where he took some money out of the desk. Shortly after the robbery when the police returned to the store with Rodney Mitchell, after capturing him, Ms. Hubbard identified Mitchell as the offender without the gun. She was unable to identify the man with the gun since she did not see his face.

Derrick Richardson testified that he was also working as a cashier/salesman for the Top Value Beauty Supply when the robbery occurred. Just before the robbery Richardson noticed the defendant enter the store twice and quickly leave without purchasing anything. Thereafter, Mitchell came into the store to exchange the hair products that he had previously purchased. While Richardson was waiting on Mitchell, the defendant reentered the store, jumped over the counter, pulled out a gun and said “Don’t anyone move, this is a stickup.” While pointing his gun at Richardson, he instructed Richardson not to look at him. However, Richardson quickly looked directly at his face. The defendant further instructed Richardson to lie flat on his stomach and proceeded to tie him up while Mitchell held the gun. Thereafter, Mitchell took money out of the cash register. The defendant, with a gun pointed at Shirley Hubbard’s back, then walked with Shirley Hubbard to the office in the back of the store. After obtaining the money from Ms. Hubbard, the defendant returned to the front of the store, and Richardson saw the defendant and Mitchell jump over the counter and leave the store. Richardson looked out of the front window of the store and saw the defendant and Mitchell crossing the street. Richardson followed the defendant and Mitchell and saw Mitchell standing in the corridor of the 1311 South Christiana building.

Richardson lost sight of Mitchell and returned to the store, where he informed the police of Mitchell’s whereabouts. They returned to the 1311 South Christiana building, but neither the defendant nor Mitchell was there. Subsequently, they returned to the store, where information was provided to Officers Vale and Bland by Mr. Horton. Richardson, Officers Vale and Bland and Mr. Horton then proceeded to the 1200 block of South Christiana where they located Mitchell, who was taken back to the store, where Ms. Hubbard identified him as one of the offenders.

Richardson further testified that while the police toured the area with him and Mitchell, looking for the accomplice, they located Ronald Stewart, whom Mitchell initially identified as his accomplice. However, Richardson stated that Stewart was not the second robber. Richardson was shown a photo album on July 9, 1985, at the police station which included a picture of the defendant. However, Richardson was unable to make a positive identification of the defendant. On July 17, 1985, however, Richardson positively identified the defendant, after viewing a lineup, as the man with the gun during the armed robbery. At the close of all the evidence, the defendant was found guilty of armed robbery and sentenced to 10 years’ imprisonment.

The defendant contends that since the police lacked probable cause for a warrantless arrest, the trial court erred in denying the defendant’s motion to quash the arrest and suppress the fruits of the arrest. The State argues that the defendant’s motion was properly denied based on the totality of the circumstances known to the police officers when the defendant was arrested.

Whether or not a police officer has probable cause to make an arrest depends upon the totality of the circumstances known to the police officer when the arrest occurred. (People v. Willingham (1982), 89 Ill. 2d 352, 363, 432 N.E.2d 861; People v. Cobb (1983), 97 Ill. 2d 465, 485, 455 N.E.2d 81; People v. Clay (1973), 55 Ill. 2d 501, 504, 304 N.E.2d 280.) It is well established that probable cause exists and a warrantless arrest is valid when the facts and circumstances within the police officer’s knowledge would cause a reasonable person to believe that an offense has been committed and that the person arrested has committed the offense. People v. Wright (1985), 111 Ill. 2d 128, 145, 490 N.E.2d 1313; People v. Eddmonds (1984), 101 Ill. 2d 44, 60, 461 N.E.2d 347; People v. Reynolds (1983), 94 Ill. 2d 160, 166, 445 N.E.2d 766; People v. Lippert (1982), 89 Ill. 2d 171, 178, 432 N.E.2d 605.

In determining whether police officers have probable cause to arrest, the courts must act upon probabilities based on the factual and practical considerations of everyday life upon which a reasonable man, not a legal technician, acts. (People v. Wright (1985), 111 Ill. 2d 128, 146, 490 N.E.2d 1313; Illinois v. Gates (1983), 462 U.S. 213, 231, 76 L. Ed. 2d 527, 544, 103 S. Ct. 2317, 2328; Brinegar v. United States (1949), 388 U.S. 160, 175, 93 L. Ed. 2d 1879, 1890, 69 S. Ct. 1302, 1310.) Moreover, a reviewing court will not substitute its judgment for that of the trier of fact on a motion to suppress unless that finding is determined to be manifestly erroneous. People v. Reynolds (1983), 94 Ill. 2d 160, 165, 445 N.E.2d 766; People v. Holloway (1981), 86 Ill. 2d 78, 91, 426 N.E.2d 871.

On review of this record, in light of the totality of the circumstances, this case demonstrates that the police had probable cause to arrest the defendant at the time he was taken into police custody, and the trial court’s determination that probable cause to arrest existed was not manifestly erroneous.

After wrongfully identifying his accomplice as Ronald Stewart, Mitchell subsequently identified Dionell Paine as his accomplice and related that he lived at the 1311 South Christiana address. Mitchell then went to the police station, where he identified the defendant as his accomplice from a police photo. Moreover, Mitchell provided a detailed written statement of the robbery, beginning with the meeting' between the defendant and Mitchell at the intersection of Roosevelt and Homan on July 9, 1985, where they discussed robbing the Top Value Beauty Supply. Thereafter, on July 17, 1985, Officer Robinson and his partner were informed by a citizen that he would be meeting with Dionell Paine at 10 that evening at 3401 West Roosevelt and he would provide Officer Robinson with a prearranged signal when the defendant arrived. Upon arriving at 3401 West Roosevelt, the defendant was asked his name and address and he stated his name and gave his address as 1311 South Christiana. This was the same name and address given to Officer Robinson by Mitchell on July 9, 1985, in identifying his accomplice in the armed robbery.

Notwithstanding that Mitchell had previously misrepresented who his accomplice was and was a participant in the crime, the police had sufficient corroborating evidence which indicated that the defendant was the accomplice. The defendant asserts that information received from an accomplice must be corroborated to establish probable cause to arrest. However, to conclude that an uncorroborated statement by an accomplice can never establish probable cause is an inaccurate statement of the law. (People v. James (1987), 118 Ill. 2d 214, 222, 514 N.E.2d 998; People v. Atkinson (1974), 21 Ill. App. 3d 258, 261, 315 N.E.2d 152.) On the contrary, the accomplice statement must be viewed in light of the totality of the circumstances. Moreover, when a segment of an accomplice statement is verified by an independent source, the corroboration lends credence to the unverified portion of the statement. People v. James (1987), 118 Ill. 2d 214, 225, 514 N.E.2d 998; 1W. LaFave Search & Seizure §3.3(f) (2d ed. 1987).

In the instant case, a portion of Mitchell’s statement was corroborated by Derrick Richardson when Richardson testified that immediately after the armed robbery, he followed the defendant and Mitchell and observed Mitchell standing in the doorway of the 1311 South Christiana building. Later that day Mitchell was apprehended by the police in the 1200 block of South Christiana. Moreover, prior to arrest, it was the defendant who told the police that his name was Dionell Paine and stated his address as 1311 South Christiana. This name and address corresponded with the name and address of the person that Mitchell alleged was his accomplice in the armed robbery.

Notwithstanding the defendant’s contention that Mitchell lacked credibility and reliability, the detailed confession provided by Mitchell regarding his participation in the armed robbery and the defendants involvement was very specific. Although the information used as a basis to establish probable cause must be supported by some indicia of reliability, courts have concluded that when a party provides information that serves as an admission against penal interest, there is an inherent indicia of reliability. (People v. James, 118 Ill. 2d 214, 222-23, 514 N.E.2d 998; United States v. Harris (1971), 403 U.S. 573, 29 L. Ed. 2d 723, 91 S. Ct. 2075.) In the case at bar, Mitchell provided a very detailed admission of his personal involvement in the armed robbery. Moreover, there is no indication in the record that Mitchell attempted to absolve himself of his participation in the offense. Nor does the record reveal that Mitchell was offered any inducement for implicating the defendant.

When Mitchell’s statements are combined with Richardson’s independent corroboration, viewed in light of the totality of the circumstances, probable cause was established for the police to form a reasonable belief that the defendant was involved in the offense that had been committed. (See People v. Cobb (1983), 97 Ill. 2d 465, 485, 455 N.E.2d 31.) Therefore, we conclude that the trial court correctly determined that the warrantless arrest was supported by probable cause, and we will not disturb its finding.

The defendant next raises two issues that were not properly raised before the trial court. The defendant now argues that the trial court improperly allowed the prosecution to introduce Mitchell’s prior inconsistent statement for purposes of impeachment and as substantive evidence. Next the defendant argues that section 115 — 10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 115 — 10.1), authorizing the use of prior inconsistent statements as substantive evidence, is unconstitutional. He supports this argument with assertions that the legislature infringed upon the rule-making power granted to the Illinois Supreme Court under the separation of powers clause of the Illinois Constitution. (Ill. Const. 1970, art. II, §1.) He further supports this argument with an assertion that section 115 — 10.1 of the Code of Criminal Procedure of 1963 is unconstitutional as a denial of due process.

The State contends that the failure of the defendant to raise an objection to the introduction of Mitchell’s prior inconsistent statement during the trial has waived this argument. Moreover, the constitutionality of section 115 — 10.1 of the Code of Criminal Procedure of 1963 is not properly before this court since the defendant failed to raise this issue before the trial court. We agree with the State’s contention that these issues are not properly before this court.

Our supreme court has recently held that to preserve an issue for review, “[b]oth a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial.” (Emphasis in original.) (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) We have observed an exception to the general rule of waiver where there has been plain error affecting substantial rights. (87 Ill. 2d R. 615(a); People v. Precup (1978), 73 Ill. 2d 7, 17, 382 N.E.2d 227.) In a criminal case, where the evidence was closely balanced or the error denied the accused a fair and impartial trial, plain error may be invoked. People v. Lucas (1981), 88 Ill. 2d 245, 251, 430 N.E.2d 1091; People v. Pickett (1973), 54 Ill. 2d 280, 283, 296 N.E.2d 856.

In the instant case, the defendant failed to raise an objection to the use of Mitchell’s prior inconsistent statement even though he had an opportunity to object to the use of the statement during Mitchell’s testimony, when the statement was read into the record, and during closing arguments. Instead, the defendant stipulated to the prior inconsistent statement.

The defendant’s constitutional challenge must also fail because he failed to raise this issue in his written motion for a new trial. Moreover, our supreme court has specifically held that the statute authorizing the use of prior inconsistent statements as substantive evidence was clearly within the legislature’s authority. (People v. Orange (1988), 121 Ill. 2d 364, 381, 521 N.E.2d 69; People v. Rolfingsmeyer (1984), 101 Ill. 2d 137, 140, 461 N.E.2d 410.) The supreme court further noted that although it has not previously allowed the use of prior inconsistent statements as substantive evidence, this did not preclude the legislature from allowing such use since the legislature has the power to prescribe new rules of evidence or alter existing rules. Orange, 121 Ill. 2d at 381; People v. Wells (1942), 380 Ill. 347, 354.

Our review of the record does not reveal that the evidence was closely balanced or that the defendant was denied a fair trial. Therefore, we decline to invoke the plain error doctrine. We conclude that since the defendant failed to raise an objection to the use of Mitchell’s prior inconsistent statement during the trial, and since the defendant failed to include his constitutional challenge in his written motion for a new trial, he is precluded from raising these issues on appeal.

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

Judgment affirmed.

CAMPBELL and BUCKLEY, JJ., concur.