author: JUSTICE RAKOWSKI

text:
    THE PEOPLE ex rel. FREDERICK R. REDELL et al., Plaintiffs and Counterdefendants-Appellees, v. FRANK GIGLIO et al., Defendants-Counterplaintiffs (Tina Paterek, Defendant and Counterplaintiff-Appellant).
    First District (6th Division)
    No. 1—92—0962
    Opinion filed October 9, 1992.

      Odelson & Sterk, Ltd., of Evergreen Park (Burton S. Odelson and Mathias W. Delort, of counsel), for appellant.
    D’Ancona & Pflaum, of Chicago (Barry T. McNamara and Steven L. Baron, of counsel), for appellees.
   JUSTICE RAKOWSKI

This appeal arises from a complaint in quo warranto filed by Frederick Redell, the supervisor of the Board of Trustees of Thornton Township (board), and Catherine Poindexter, one of its trustees. The complaint challenged the validity of a township meeting and the alleged appointment of several board members, including the appellant, Tina Paterek, to fill a vacancy created by the resignation of one of the trustees, as well as the positions occupied by Redell and Poindexter. Paterek subsequently filed a counterclaim requesting a declaratory judgment that she was lawfully appointed as trustee and an injunction against Redell from interfering with her serving as a member of the board. Redell filed a motion for summary judgment on his complaint, and Paterek filed a motion for summary judgment on her counterclaim. The trial court granted Redell’s motion and denied Paterek’s, finding that she had not been lawfully appointed as a member of the board. Paterek appeals, raising the following issues: (1) whether the trial court erred in granting summary judgment against Paterek on the basis that her appointment violated the Open Meetings Act (Ill. Rev. Stat. 1991, ch. 102, par. 41 et seq.); and (2) whether the trial court erred in finding that Ronald Kawanna was appointed to the trustee position vacated by Charles Palombo.

In 1989 Redell was elected as supervisor of the board. John Smida was elected as clerk, and Catherine Poindexter, A.J. Zoppi, Richard Wands, and Charles Palombo were elected as trustees. On October 22, 1991, Palombo resigned his position as trustee to become the township assessor. At a regular board meeting on December 10, 1991, Zoppi and Wands passed several motions, including a motion to declare the seats held by Redell and Poindexter vacant, a motion to appoint Frank Giglio and Benita Griffis to the allegedly vacant seats, and a motion to appoint Paterek to fill the Palombo vacancy. On December 13, 1991, Redell and Poindexter filed a complaint in quo warranto alleging that the action taken at the meeting several days earlier was invalid because there were only two board members present rather than three members which was the number required to constitute a quorum.

On December 17, 1991, a special meeting of the board was convened following notice pursuant to section 2.02 of the Open Meetings Act (Ill. Rev. Stat. 1991, ch. 102, par. 42.02). The agenda listed five items. Items one, two and four referred to financial matters, item five referred to the rescheduling of a regular meeting and item three stated:

“Any other matters or problems related to the Redell/Poindexter abandonment of their responsibilities as supervisor and trustee affecting Thornton Township regarding personnel, finance, programs, general fund, general assistance fund, para-transit, road and bridge fund, and all other matters pertaining to the function of the township.”

The meeting was attended by Redell, acting as supervisor, Paterek, and trustees Poindexter, Wands, Zoppi, as well as the clerk, Smida. Without recognition by Redell, Wands made a motion to vote in Paterek as trustee for the board which was approved by everyone except Redell and Poindexter. Following the meeting, Wands, Zoppi and Smida signed a warrant of appointment, allegedly appointing Paterek to fill the Palombo vacancy.

On December 23, 1991, Paterek filed her counterclaim, requesting a declaratory judgment that she was a lawfully appointed member of the board and a motion for summary judgment on her counterclaim. Redell filed his answer to Paterek’s counterclaim and affirmative defenses alleging that the action taken at the meeting on December 17, 1991, to elect Paterek to the board was illegal because it was not within the scope of the agenda in violation of the Open Meetings Act. On January 22, 1992, Redell filed his motion for summary judgment on his complaint in quo warranto.

On February 3, 1992, Paterek filed a verified motion for a temporary restraining order and a verified third-party complaint for declaratory judgment and injunctive relief requesting that Redell be restrained from posting any notice of a special township meeting scheduled for February 6, 1992, and from proceeding with any activities in connection with such meeting and also that the Township of Thornton be restrained from conducting a special meeting to elect a trustee. Paterek’s allegations in her complaint were that she already occupied the position vacated by Palombo and that proper notice had not been given for the time and place of the meeting pursuant to sections 6 — 1.1 and 6 — 2 of the Township Law of 1874 (Ill. Rev. Stat. 1991, ch. 139, pars. 51, 53). However on February 6, 1992, the special township meeting was convened and Robert Kawanna was elected to the same position that Paterek claims she occupies. On March 23, 1992, the trial court granted Redell’s motion for summary judgment, denied Paterek’s motion and ruled that Kawanna was duly elected to fill the position Palombo vacated.

The first attempt to appoint Paterek to the board occurred on December 10, 1991. However, in granting Redell’s motion for summary judgment, the trial court concluded that there was no valid quorum so that any action taken at the meeting was not valid. Paterek does not appeal this ruling by the court. On December 17, 1991, a second attempt was made to appoint Paterek to the board at a special meeting convened pursuant to the Open Meetings Act (Act) (Ill. Rev. Stat. 1991, ch. 102, par. 41 et seq.). The issue as to the validity of Paterek’s appointment at the meeting on December 17, 1991, is whether the agenda was specific enough to give proper notice under the Act. As previously stated, the agenda consisted of five items. The item which Paterek contends provided notice of her appointment was item three, which states:

“Any other matters or problems related to the Redell/Poindexter abandonment of their responsibilities as supervisor and trustee affecting Thornton Township regarding personnel, finance, programs, general fund, general assistance fund, para-transit, road and bridge fund, and all other matters pertaining to the function of the township.”

Section 2.02 of the Act provides in relevant part:

“Public notice of any special meeting *** shall be given at least 24 hours before each meeting, which notice shall also include the agenda for the special, rescheduled, or reconvened meeting, but the validity of any action taken by the public body which is germane to a subject on the agenda shall not be affected by other errors or omissions in the agenda.” (Ill. Rev. Stat. 1991, ch. 102, par. 42.02.)

Section 1 of the Act states that the intent of the Act is that the actions and deliberations of public agencies be conducted openly. (See Ill. Rev. Stat. 1991, ch. 102, par. 41.) The Illinois Supreme Court noted that the Act “is designed to prohibit secret deliberation and action on business which properly should be discussed in a public forum due to its potential impact on the public.” People ex rel. Difanis v. Barr (1980), 83 Ill. 2d 191, 202, 414 N.E.2d 731.

The first part of agenda item three refers to “matters or problems related to the Redell/Poindexter abandonment of their responsibilities as supervisor and trustee” and its effect on township personnel, finance, and funding programs. Paterek’s alleged appointment was intended to fill the position vacated by Palombo and had no connection with the positions occupied by Redell and Poindexter or any action on their part which had an impact on the township. The only part of item three which did not refer to Redell and Poindexter was the clause “and all other matters pertaining to the function of the Township.” This clause standing alone was too generic to give notice of any action by the board and, in essence, amounted to no agenda at all. Because this clause was too all-inclusive to give any notice, and Paterek’s appointment was not germane to the remainder of item three, we conclude that the action taken by the board to appoint Paterek was invalid.

In support of her argument to the contrary, Paterek cites Argo High School Council of Local 571 v. Argo Community High School District 217 (1987), 163 Ill. App. 3d 578, 583, 516 N.E.2d 834. In Argo, the union challenged certain actions taken at a special meeting of a school district on the basis that the actions were not germane to the listed agenda. One of the items on the agenda was a “review and discussion of salaries involving administrators, supervisors, and other personnel not covered by an agreement.” The motions presented and adopted at the meeting which the union challenged were an extension of the superintendent’s term, a change in the appointment of a department chairperson from a permanent to a three-year rotational basis, and the posting and receiving of applications for the position of athletic director for the 1986-87 school year. (Argo High School Council, 163 Ill. App. 3d at 581.) The court held that the challenged items were closely related and pertinent to the discussion of salaries of personnel not covered by the agreement. Citing Williamson v. Doyle (1983), 112 Ill. App. 3d 293, 445 N.E.2d 385, and In re Organization of Byron Park District (1978), 67 Ill. App. 3d 61, 385 N.E.2d 67, the court noted that the Act only requires substantial compliance with its provisions by a public body. (Argo High School Council, 163 Ill. App. 3d at 583.) However, in the case sub judice, we find no relationship between Paterek’s appointment to Palombo’s position and the Redell/ Poindexter abandonment of their responsibilities or its effect on finance, funding, or personnel matters. Therefore, the appointment was not germane to any subject on the agenda nor was it in substantial compliance with the Act. In concluding as we do, we point out that comparison with other factual situations is difficult. Whether action taken is germane to a subject on the agenda can only be determined by a careful reading of each on a case-by-case basis.

Paterek also argues, in the alternative, that her appointment was valid because the appointment by warrant document was signed by other board members pursuant to section 10—1 (Ill. Rev. Stat. 1991, ch. 139, par. 96). Paterek’s interpretation of this provision is that a board member can be appointed under the signature of as few as three other members, which was the number of signatures in this case, without any prior action by the board. What the statute provides in part, however, is:

“Except for the office of township or multi-township assessor, whenever any town fails to elect the proper number of town officers to which such town is entitled by law, or when any person elected to any town office fails to qualify, or whenever any vacancy occurs for any other reason in any township office, the board of trustees of the township shall fill the vacancy by appointment, by warrant under their signature and seals ***.” (Ill. Rev. Stat. 1991, ch. 139, par. 96.)

Under this provision, the signed warrant is a document which accompanies a valid appointment by the board rather than a separate and distinct procedure for appointing trustees. Because we conclude that Paterek’s appointment at the meeting was not valid, the signing of the warrant by the members did not convert it into a valid one.

Also without merit is Paterek’s argument that the trial court did not have the power to declare that her appointment at the December 17 meeting was invalid. Section 3(c) of the Act provides in relevant part that “[t]he court, having due regard for orderly administration and the public interest, as well as for the interests of the parties, may grant such relief as it deems appropriate.” (Ill. Rev. Stat. 1991, ch. 102, par. 43(c).) Paterek argues that the “free rein” granted to a court in section 3 of the Act is limited to cases where a complaint has been filed that the Act was violated. She claims that this issue was not before the court because it was only raised as an affirmative defense by Redell in response to her counterclaim for declaratory judgment. However, even if Redell’s answer and affirmative defenses were not sufficient, Paterek herself brought the issue before the court in her motion for summary judgment on the validity of her appointment on December 17, 1991.

Finally, Paterek contends that it was improper for the trial court to make a finding that Ronald Kawanna was duly elected to the position vacated by Palombo. Paterek’s argument is twofold: (1) the township meeting at which Kawanna was elected was not convened in compliance with the Act; and (2) that the validity of Kawanna’s appointment was not before the court. Without addressing the propriety of the township meeting, we agree with Paterek’s second contention that it was improper for the trial court to address this issue. Neither Redell’s nor Paterek’s motion for summary judgment requested that the court make a finding on the validity of the township meeting or Kawanna’s election. We also note that Kawanna was not before the court as a party. Even assuming, arguendo, that the court could rule on the propriety of Kawanna’s appointment where he was not a party, it could only do so after a trial or pursuant to a dispositive motion requesting such action.

Accordingly, the order of the circuit court on Paterek’s and Re-dell’s motion for summary judgment is affirmed, and that part of the court’s order regarding the election of Ronald Kawanna is reversed.

Affirmed in part and reversed in part.

EGAN, P.J., and McNAMARA, J., concur.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    PAULETTE REED, Plaintiff and Counterdefendant-Appellee, v. GEORGIA BURNS, Defendant and Counterplaintiff-Appellant.
    First District (6th Division)
    No. 1—91—2825
    Opinion filed October 23, 1992.

      Richard Klawiter and William P. Wilen, both of Legal Assistance Foundation, of Chicago, for appellant.
    Ellis J. May III, of Ellis J. May & Associates, of Chicago, for appellee.
   PER CURIAM:

Following a bench trial, the trial court entered judgment for plaintiff and against defendant in defendant’s claim for damages in a landlord-tenant dispute. (Ill. Rev. Stat. 1989, ch. 110, par. 9 — 207.) On appeal defendant contends that the trial court erred as a matter of law in concluding that State law supersedes a Chicago municipal ordinance in an action for retaliatory eviction.

On November 5, 1990, plaintiff filed her complaint against defendant for possession of an apartment in Chicago, because defendant had “held over” after her tenancy expired. Defendant counterclaimed, alleging that under the applicable municipal ordinance she had exercised her right to withhold part of her rent because of defects in the premises which plaintiff as her landlord had refused to remedy. Defendant also alleged that she had received a 30-day notice to terminate the tenancy which was dated September 29, 1990, and that this date was 10 days after defendant had sent her third letter to plaintiff complaining of noncompliance with the Chicago municipal housing code. Defendant filed her motion for summary judgment. In it defendant contended that she was entitled to judgment because:

“[wjhen a landlord serves a tenant with a 30-day Notice to Terminate Tenancy and then proceeds to accept rent subsequent to the date on which the tenancy is to expire, the landlord has waived the legal effect of the notice.”

The trial court dismissed plaintiff’s forcible entry and detainer claim by agreed order and set defendant’s counterclaim for retaliatory eviction for trial.

At trial, defendant testified that she was current in her rent and had never been delinquent in that regard. Defendant further testified that after moving to plaintiff’s apartment in June 1989, she had experienced problems with the plumbing, lighting fixtures, and rodents. Defendant then telephoned plaintiff, and after receiving no response, she wrote her a letter on July 17, 1989, about the problem. According to defendant, the plumbing problems were subsequently corrected, but in December 1989 she telephoned plaintiff about lighting problems and wrote a letter to this effect. Also according to defendant, the lighting problem was not resolved until July 1990.

In addition, defendant testified that she first noticed a rodent problem in January 1990, and that she subsequently telephoned plaintiff about this problem two or three times per month. According to defendant, this problem has never been resolved, although she had written a letter to plaintiff on this matter dated September 19,1990.

Copies of all three letters were admitted into evidence. According to defendant, after this last letter plaintiff served her with the 30-day notice which was also admitted into evidence. Defendant also testified that she telephoned plaintiff on numerous occasions to mow the lawn or shovel the snow on the premises.

On cross-examination defendant said at the time plaintiff acquired ownership of the property, her children were three and five years of age, but were not tall enough to touch the string which controlled the kitchen ceiling light. Defendant also testified that she properly disposed of her garbage in plastic bags and placed them in the backyard for later disposal in an appropriate manner. Defendant also said that she had been under a written lease with the previous landlord. Defendant further testified that plaintiff was aware that defendant had called the “No Heat Hotline” in January 1990, and that plaintiff had never repaired defendant’s thermostat.

Plaintiff testified that she became defendant’s landlord in 1989. According to plaintiff, she had sent an electrician to repair the lighting fixture in defendant’s apartment, and she also replaced the entire fixture in April 1990. Plaintiff said that she had distributed exterminating spray for roaches to the tenants and asked them to “pass the spray thing from apartment to apartment to exterminate.” Plaintiff said that she visited defendant’s apartment several times and noticed “garbage left uncovered, clothes on the floor, and stacks of toys,” and food items left out in the kitchen. According to plaintiff, defendant was on a month-to-month lease and except for defendant, she had never evicted a tenant for any reason other than nonpayment of rent. She also said that she never received any written notice from a tenant other than defendant about withholding rent because of problems with his or her apartment.

Defendant again testified and denied that she ever left her garbage uncovered but stated that she left food out because “I can’t put it in the cabinets because the rats eat it.” Defendant again testified that she still had problems with rodents in her apartment.

The trial court then stated in relevant part:

“I think it’s quite clear from the testimony that was received that what we have is a month-to-month tenancy. That being so I think this is dispositive in terms of whether or not the retaliatory eviction has occurred in this situation.
*** [T]here is no doubt that everything that was requested was complied with.
* * *
*** [WJhere there is *** a month-to-month tenancy, I think the State law preempts the City of Chicago ordinance and a landlord does have the right to terminate a tenancy for no cause ***.”

The trial court then entered judgment for plaintiff and against defendant. At the hearing on the motion for reconsideration, the trial court stated in relevant part:

“State law gives a landlord a right to terminate a month-to-month tenancy *** with a 30 day notice for no reason. I don’t see anything in the landlord-tenant ordinance that refutes that.
* * *
Based on that, I think state law still supersedes when it says you need no reason for wanting your apartment back. If there is no lease, the only requirement you have is to give them a 30-day notice.”

The trial court then denied defendant’s motion for reconsideration.

On appeal defendant first contends that the trial court erred in concluding that State law supersedes the Chicago landlord tenant ordinance when a tenant resides in an apartment under an oral month-to-month lease. The Blinois Supreme Court has repeatedly held that an ordinance which is within a municipality’s home-rule powers supersedes, within the home-rule unit’s territory, a conflicting statute passed before the 1970 Constitution took effect. (Kanellos v. County of Cook (1972), 53 Ill. 2d 161, 166, 290 N.E.2d 240; People ex rel. Hanrahan v. Beck (1973), 54 Ill. 2d 561, 565-66, 301 N.E.2d 281; Winokur v. Rosewell (1980), 83 Ill. 2d 92, 97, 414 N.E.2d 724.) The City of Chicago is a home-rule unit. See Ill. Const. 1970, art. VII, §6(a).

In the case at bar, section 5—12—150 of the Residential Landlord and Tenant Ordinance (Chicago Municipal Code §5—12—150 (1991)) (ordinance) reads in relevant part:

“It is declared to be against public policy of the City of Chicago for a landlord to take retaliatory action against a tenant, except for violation of a rental agreement or a violation of a law or ordinance. A landlord may not knowingly terminate a tenancy *** because the tenant has in good faith:
* * *
(b) Complained of a *** housing *** or similar code violation or an illegal landlord practice to a community organization or the news media; or
* * *
(d) Requested the landlord to make repairs to the premises as required ***.
* * *
(g) Exercised any right or remedy provided by law. If the landlord acts in violation of this section, the tenant has a defense in any retaliatory action against him for possession ***. *** In an action by or against the tenant, if there is evidence of tenant conduct protected herein within one year prior to the alleged act of retaliation, that evidence shall create a rebuttable presumption that the landlord’s conduct was retaliatory.”

This section was passed on July 8, 1986, and became effective on October 15, 1986.

Section 9 — 207 of the Blinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 9 — 207) reads in relevant part:

“In all cases of tenancy for any term less than one year, other than tenancy from week to week, where the tenant holds over without special agreement, the landlord may terminate the tenancy by 30 days’ notice, in writing, and may maintain an action for forcible entry and detainer ***.”

This section was effective prior to the relevant effective date of July 1, 1971, of the home-rule provisions in the 1970 Constitution. (See Ill. Rev. Stat. 1971, ch. 80, par. 6.) Because the municipality of Chicago is a home-rule unit (see Ill. Const. 1970, art. 7, §6(a)) and the ordinance addresses the well-being of its citizens, we conclude that the ordinance supersedes the statute in this instance. See City of Evanston v. Create, Inc. (1981), 85 Ill. 2d 101, 113, 421 N.E.2d 196 (landlord-tenant relationship is a proper exercise of home-rule authority).

Plaintiff has also contended that because the ordinance does not explicitly state that month-to-month tenancies are within its scope, then it should be construed consistently with the State law which provides that month-to-month tenancies can be terminated without cause. However, chapter 5 — 12 of the Code specifically lists rental agreements which are excluded from the ordinance’s coverage, and month-to-month tenancies per se are not among these exclusions. (Chicago Municipal Code §5 — 12—020 (1991).) For this reason we conclude that month-to-month tenancies are within the scope of this ordinance.

Having concluded that the ordinance governs, we next address whether defendant has proven her cause of action in retaliatory eviction in the case at bar. Under the ordinance there is a rebuttable presumption that an eviction was retaliatory if this event occurred within one year of what could be construed as the tenant’s protected acts. Also under the ordinance, a landlord must comply with all the applicable provisions of the municipal code and promptly make all repairs to a premises to ensure compliance. (Chicago Municipal Code §5 — 12—070 (1991).) If the landlord fails to supply heat, exterminate rodents, and provide adequate light, then there is material noncompliance with section 5 — 12—070 (Chicago Municipal Code §5 — 12—110 (1991)). Under these circumstances, the tenant may recover damages (Chicago Municipal Code §5 — 12—110(e) (1991)), and deduct an appropriate amount, reflecting the reduced value of the premises, from each rental payment. Chicago Municipal Code §5 — 12—110(d) (1991).

In the case at bar defendant complained about the heat, lighting, and rodents within one year of receiving her September 29, 1990, 30-day notice from plaintiff. Plaintiff has not rebutted the ordinance’s presumption of retaliatory eviction by establishing a history of defendant’s chronic rent default, nuisance or other problems created by her possession of the premises. Plaintiff also admitted that prior to serving defendant with an eviction notice she had never served such a notice unless a tenant had defaulted in rental payment. Contrary to the trial court’s finding of fact, the record establishes that defendant’s rodent problem was never solved, nor was the heating problem resolved until defendant called for city intervention. We therefore conclude that the eviction was retaliatory in motive and that the trial court’s decision was against the manifest weight of the evidence and incorrect as a matter of law.

For the above reasons, the judgment of the circuit court of Cook County is reversed and the cause remanded for entry of judgment in defendant’s favor for costs and damages as provided by the ordinance.

Reversed and remanded.

EGAN, P.J., and McNAMARA and RAKOWSKI, JJ., concur.


author: JUSTICE O’CONNOR

text:
    RAYMOND EARL LEE, a Minor, by Ray Lee, his Father and Next Friend, Plaintiff-Appellant, v. INGALLS MEMORIAL HOSPITAL et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—91—0525
    Opinion filed October 26, 1992.

      Donald Y. Young, of Chicago, for appellant.
    Laura J. Ginett, Hugh C. Griffin, and Kathryn C. Wyatt, all of Lord, Bissell & Brook, of Chicago, for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff, Raymond Earl Lee, by his father and next friend, Ray Lee, sought damages from defendant, Ingalls Memorial Hospital, and codefendant, Dr. Jalai Abtahi, for injuries received because of defendants’ alleged negligence during Raymond’s birth at the hospital on February 27, 1977. At the ensuing trial, a jury returned a verdict against Dr. Abtahi for $3.3 million. The jury also returned a verdict in favor of the hospital. Plaintiff appeals from the jury’s verdict in favor of the hospital.

We affirm.

Cynthia Lee, Raymond’s mother, testified that she arrived at the hospital at 12:20 a.m. on February 27, 1977. Following her admission, two nurses performed a preliminary examination of her. Mrs. Lee did not recall being given any medication at this point. Later, Mrs. Lee was transferred to the labor room where she received medication intravenously. Not long after, Dr. Abtahi entered the room and told her to push. After pressing on her stomach, he told her that she had to be put to sleep. Mrs. Lee next saw Dr. Abtahi after she had recovered, and he informed her that he had experienced difficulty in delivering the baby’s shoulders and that he had had to “use some instruments.” Mrs. Lee stated that Raymond has trouble with his right arm, which he cannot use in a normal manner.

According to plaintiff’s expert, Dr. Ronald Lorenzini, Raymond’s birth was complicated by a condition known as dystocia, which arises when a baby’s shoulders cannot be delivered following the delivery of the infant’s head during the course of a normal birth. Lorenzini stated that the medical care and treatment afforded to Mrs. Lee in this case were not within the accepted standard of medical care. Specifically, Lorenzini faulted the hospital’s “injudicious” use of Pitocin and Dr. Abtahi’s “excess force.” Pitocin is an oxytocic drug which causes the uterus to contract forcefully and is used to stimulate labor. Lorenzini noted that, according to the hospital record of Raymond’s birth, Pitocin was given to Mrs. Lee intravenously at some time “predelivery.” Lorenzini stated that if Pitocin was given pursuant to a verbal order of the doctor, then no deviation from the standard of care occurred. Moreover, Lorenzini admitted that Pitocin has no relationship to the development of dystocia and that there was no indication that the administration of Pitocin to Mrs. Lee prior to Raymond’s delivery caused or contributed to the injury at issue. Lorenzini stated the child’s injury was due to Abtahi’s inappropriate use of forceps and excess force.

Dr. Abtahi testified that he received two telephone calls from the hospital on February 27, 1977, regarding Mrs. Lee’s labor. During one of the calls, he ordered Demerol, a painkiller, for Mrs. Lee. According to the nursing progress notes, no oxytocic drugs were administered to Mrs. Lee while she was in the labor room. Abtahi could not recall if he ordered Pitocin for Mrs. Lee. If he did order Pitocin verbally, there would not be a written order for it on Mrs. Lee’s chart. The only indication of such a verbal order would be an “X” on the delivery room record, which, in fact, appeared on Mrs. Lee’s chart. If, however, Pitocin was given to Mrs. Lee without his order, then a deviation from the accepted standard of care had occurred. During Raymond’s delivery, the baby’s shoulders became lodged behind Mrs. Lee’s pelvis. To facilitate the delivery, Abtahi used forceps and performed maneuvers. After the child was born, Abtahi noticed that the child’s right arm was injured.

Bettie Yale, one of the labor and delivery room nurses who attended Mrs. Lee on the night in question, testified that, after Mrs. Lee’s admission to the hospital, Dr. Abtahi was telephoned. At 1 a.m., Dr. Abtahi was called to come to the hospital because Mrs. Lee’s labor had progressed. Mrs. Lee was given Demerol intravenously pursuant to the doctor’s telephone order. Mrs. Lee was brought into the delivery room at 1:25 a.m. According to Yale, the labor was stimulated with the aid of Pitocin, which was given intravenously in the delivery room. Yale swore that she did not give Mrs. Lee Pitocin without an order from the doctor. During deliveries, Pitocin commonly is ordered verbally because the physician cannot take the time to write out a written order. In contrast, a written order is required if the drug is to be administered in the labor room.

Roseanne Rooney was the other labor and delivery room nurse who attended Mrs. Lee on February 27. Rooney made entries on Mrs. Lee’s chart, noting her vital statistics and the medicinal orders received by phone from Dr. Abtahi. These drugs were noted on Mrs. Lee’s labor room record and on her “IV fluid sheet.” According to Rooney, Dr. Abtahi did not order Pitocin over the phone, and Mrs. Lee did not receive the drug in the labor room because if such an order had been given, Pitocin would have been noted on Mrs. Lee’s labor room record, on her medication record and on her IV fluid sheet. Mrs. Lee began receiving medicine intravenously at 1 a.m., and she was taken to the delivery room at 1:25 a.m. According to Mrs. Lee’s delivery room record, she was given Pitocin in the delivery room “predelivery” on the verbal order of Dr. Abtahi. Rooney swore that she did not administer Pitocin without the doctor’s order. Neither Rooney nor Yale could state positively that she entered the “X” on Mrs. Lee’s delivery room record, indicating that Pitocin had been administered.

Mary Sandra Weaver, the hospital’s coordinator of nursing policy and procedure, testified that, during 1977, 10 to 12 policies were in effect, one of which was an obstetric and gynecology policy book and one of which was a general nursing policy book. The obstetric and gynecology policy book applied only to nurses working in that specialty area. The general policy book governed the entire nursing department. According to Weaver, verbal and written order policy concerning the drug Pitocin would not be contained in the general nursing policy book because that drug is only administered in the specialty area of obstetrics and gynecology. Weaver identified the general nursing policy book revised on August 8, 1978. That particular policy made no reference to Pitocin. Weaver attempted to search for the policy manual in effect during the time in question, but could not locate it. Weaver did not know the practice of Pitocin administration in delivery room situations in 1977 because she was not a “labor/delivery” room nurse.

Both defendants’ experts testified that the “X” on the delivery room record indicated that Pitocin was administered to Mrs. Lee and that such a procedure comported with the standard of care. Both doctors testified that the administration of Pitocin did not cause or contribute to Raymond’s injury.

Following closing arguments, the jury returned the verdicts indicated above. The circuit court denied all post-trial motions, and this appeal followed.

Plaintiff first asserts that circuit court erred by refusing to allow certain rebuttal evidence. Plaintiff contends the hospital, at trial, claimed to be in compliance with applicable written hospital policies, contrary to the position it took during discovery, when it claimed that such policies did not exist. Specifically, plaintiff sought to admit the following interrogatory answer provided by the hospital during discovery:

“There is no hospital protocol for documentation of verbal orders for the date of this incident. The policy was written in 4/7/ 76, revised in 5/25/76, and revised in 8/8/78 and therefore it is unclear from the 1978 policy what policy was in effect in 1976 and therefore this policy will not be turned over as it is an irrelevant post-occurrence policy.”

The circuit court refused to admit this answer into evidence during rebuttal.

Generally, the allowance of rebuttal evidence lies within the discretion of the circuit court, and its ruling on the issue will not be set aside absent an abuse of discretion. (Danhof v. Richland Township (1990), 202 Ill. App. 3d 27, 559 N.E.2d 1155, appeal denied (1991), 136 Ill. 2d 542, 567 N.E.2d 330.) Here, the hospital claimed it complied with the policies contained in its Obstetrics and Gynecology Policy and Procedure Manual which was in effect in 1977. This was produced to plaintiff during discovery and was referred to by the various witnesses at trial. Mary Sandra Weaver, the hospital’s coordinator of policy during the time in question, testified that she was unable to locate any general written policy for verbal orders prior to the one effective August 8, 1978. We have examined the testimony presented and the material produced during discovery and find that circuit court did not abuse its discretion in this matter because the hospital’s position at trial was consistent with the answers given during discovery.

Plaintiff further argues that the circuit court erred in admitting the testimony of Mary Sandra Weaver, the hospital’s coordinator of nursing policy, because no foundation was laid as to Weaver’s opinion regarding the hospital’s policies in 1977.

After carefully reviewing Weaver’s testimony, we are satisfied that Weaver did not render any opinions regarding compliance with the standard of care nor did she give any opinion as to how a verbal order for Pitocin should be entered on the delivery room chart. In fact, Weaver stated that she did not know how Pitocin was administered in the labor and the delivery room because she was not a “labor/delivery” nurse. Weaver merely testified that the hospital did indeed have policy manuals with regard to the various nursing departments. Weaver, as the hospital’s coordinator of nursing policy, was certainly competent to identify which policy manual governed which particular nursing department. No error occurred as a result of Weaver’s testimony.

Finally, plaintiff contends that the circuit court, by striking a portion of his expert’s testimony, improperly prevented him from establishing the theory of his case.

Prior to trial, Dr. Lorenzini was deposed by the hospital. During the deposition, the following questions and answers were given:

“Q. ‘Does Pitocin have any relationship to the development of the shoulder dystocia?’
A. ‘No, sir.’
Q. ‘Was the Pitocin or the use of Pitocin any part of a mechanism of injury in this case?’
A. ‘No, sir.’
Q. ‘Doctor, is there any indication that the delivery of Pitocin used prior to delivery caused or contributed to this child’s injury?’
A. ‘No, sir.’
Q. ‘Do you have any criticism of the nursing care or the hospital care afforded to this patient?’
A. ‘This patient was given Pitocin. There’s no documentation that Pitocin was used in any of the medication order sheets.’
Q. T thought we had commented in an earlier point after a lot of discussion about the Pitocin that had no relationship to the injury to the fetus?’
A. ‘Correct.’
‘So if that’s a criticism, it is a criticism that does not relate to the injury in this case?’
Answer: ‘Correct.’ ”

Before the beginning of the trial, the circuit court entered an order, pursuant to Supreme Court Rule 220(d) (134 Ill. 2d R. 220(d)), which stated that no expert would be allowed to “go beyond the testimony that has been disclosed in their depositions.” During his testimony at trial, however, Dr. Lorenzini attempted to state that the administration of Pitocin caused Dr. Abtahi to use forceps and apply the excessive force. The hospital objected to this testimony, arguing that Lorenzini’s testimony contradicted the opinions he previously had given in his deposition.

Supreme Court Rule 220(d) (134 Ill. 2d R. 220(d)) safeguards against an expert witness from testifying during direct examination in a manner inconsistent "with the facts known or the opinions disclosed during discovery. The rule also prevents the expert from going beyond the fair scope of the opinions or facts given at the deposition. (Baird v. Adeli (1991), 214 Ill. App. 3d 47, 573 N.E.2d 279, appeal denied (1991), 141 Ill. 2d 536, 580 N.E.2d 108; Bart v. Union Oil Co. (1989), 185 Ill. App. 3d 64, 540 N.E.2d 770, appeal denied (1989), 128 Ill. 2d 661, 548 N.E.2d 1066.) To that end, Rule 220 was promulgated so as to allow litigants the opportunity to discover and rely upon the opinions of the experts retained by their opponents. (134 Ill. 2d R. 220, Committee Comments.) Thus, an expert’s testimony is restricted to the opinions expressed in the expert’s deposition. (Zajac v. St. Mary of Nazareth Hospital Center (1991), 212 Ill. App. 3d 779, 571 N.E.2d 840.) As a result, any opinion expressed by an expert in addition to the opinion expressed in his deposition must be excluded. See Ramos v. Pyati (1989), 179 Ill. App. 3d 214, 534 N.E.2d 472.

Plaintiff’s counsel, at oral argument, maintained that the hospital, during its deposition, failed to ask Dr. Lorenzini the proper questions regarding the “intervening sequence” between the injury and the administration of the drug and, as a result, should not now be allowed to benefit from that failure. We disagree.

Dr. Lorenzini was asked several times, during his deposition, whether Pitocin “caused or contributed to” or was “any part of a mechanism of” Raymond’s injury. He consistently responded that it did not. He also agreed that Pitocin had no “relationship” to the injury at issue. Given these responses to the questions, we cannot say that the hospital failed to question Lorenzini adequately. The deposition questions, as noted above, clearly invited Lorenzini to make a causal connection between Pitocin and the excess force used by Dr. Abtahi. Apparently, Lorenzini did not have that opinion at the time of the deposition. However, at trial, Lorenzini stated that “when Pitocin was administered to this patient, the contractions became very quick, forceful, and promoted the doctor to use the forceps to protect the infant’s head with the delivery of the infant as he so stated.” This opinion was contrary to the opinion given in the deposition. Accordingly, the circuit court did not err in refusing to allow Lorenzini to testify beyond the scope of his deposition testimony. See Chicago & Illinois Midland Ry. Co. v. Crystal Lake Industrial Park, Inc. (1992), 225 Ill. App. 3d 653, 588 N.E.2d 337; Marshall v. Osborn (1991), 213 Ill. App. 3d 134, 571 N.E.2d 492; Stringham v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 312, 536 N.E.2d 1292, appeal dismissed (1989), 127 Ill. 2d 642, 541 N.E.2d 1115.

For the foregoing reasons, the judgment of the circuit court must be affirmed.

Affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN CHANDLER, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—2669
    Opinion filed October 28, 1992.

      Rita A. Fry, Public Defender, of Chicago (Mark Stein, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Barbara Jones, and Michael D. Oppenheimer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Following a bench trial, defendant, Stephen Chandler, was found guilty of unlawful use of a weapon by a felon and sentenced to six years in the Illinois Department of Corrections. Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1(a).

The following issues are before this court for review: (1) whether the policeman’s search of defendant’s vehicle was proper; and (2) whether defendant was found guilty of possession of an unlawful weapon beyond a reasonable doubt. We affirm.

On May 3, 1989, at approximately 12:30 a.m., defendant was driving a car owned by his friend, Lorenzo Davis, with the bright headlights on. Chandler was proceeding west on Roosevelt Road near Pulaski. At that time, police officer Jack Granadon and his partners were driving west on Roosevelt Road near Pulaski in an unmarked police car. Officer Granadon noticed a vehicle traveling behind him with bright headlights on. Officer Granadon observed the vehicle follow his car for one-half to three-quarters of a block. Officer Granadon then pulled the police car over to the curb in order to allow the vehicle to pass. As the vehicle proceeded past the police car, the officers activated their emergency lights, signalled the driver to pull over and stopped the vehicle at 1141 S. Kildare.

After the police stopped the vehicle in question, defendant exited the vehicle and approached the officers’ car. Dion Plantón, who was a passenger in the vehicle, remained seated. Officer Granadon’s partner told defendant that he was driving -with bright lights on and he asked defendant to present his driver’s license. Defendant said that he did not have a driver’s license. Defendant was then arrested for driving without a license and driving with his bright headlights on.

Officer Granadon then walked to the passenger side of defendant’s car and asked Plantón to get out. As Plantón opened the door, the interior overhead light came on and Officer Granadon observed a small caliber automatic pistol on the floor of the driver’s side. Officer Granadon told the other officers about the gun, placed Plantón under arrest and then recovered the gun. Plantón was not charged with any crime stemming from this event.

Defendant was later charged with unlawful use of a weapon by a felon. (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1(a).) Defendant later moved to suppress the gun obtained as a result of the policeman’s search of his vehicle. At the hearing on the motion, the State argued that the police were justified in ordering Plantón out of the car and in conducting an inventory search of the interior of the vehicle because defendant did not have a driver’s license.

Defendant argued that the State failed to prove that he knew of and had possession of the gun found in the car. Defendant testified that prior to being stopped by the police, he had just driven his friend Lorenzo Davis to Cook County Hospital in Davis’ car, because Davis had suffered an asthma attack. Defendant further testified that the police never asked to see his driver’s license. Defendant also maintained that the gun did not belong to him.

The court denied defendant’s motion to suppress and the case proceeded to trial. In denying defendant’s motion to suppress, the court found that defendant was arrested pursuant to a proper custodial arrest as he did not have a driver’s license and was driving with bright headlights on, and that the gun was properly seized because it was in plain view.

At trial, the evidence was received by stipulation. It was stipulated that the gun the police found was a .25-caliber automatic handgun loaded with one live round. It was also stipulated that defendant had been convicted of possession of a stolen motor vehicle in 1986 and sentenced to three years in the Illinois Department of Corrections. It was further stipulated that Officer Granadon’s testimony would be the same as it was at the hearing on defendant’s motion to suppress. Officer Granadon testified as to the events described above. It was also agreed that defendant would testify in the same manner as he did at the hearing on the motion. For impeachment purposes, it was stipulated that defendant was convicted of burglary in 1980 and was sentenced to two years’ probation, and that he was convicted of the unlawful use of a weapon in 1981 and was sentenced to two years’ imprisonment in the Illinois Department of Corrections.

The court found defendant guilty of unlawful use of a weapon by a felon because he was driving and knew of the gun as it was in plain view. Defendant was sentenced to six years in the Illinois Department of Corrections. The court considered defendant’s prior criminal record during the sentencing hearing. The weapon charge was enhanced to a felony due to one of defendant’s prior convictions, and the felony sentence was increased to an extended term based upon another prior conviction. A timely notice of appeal was filed on September 29, 1989. This appeal followed.

First, we will address the issue of whether the policeman’s search of defendant’s vehicle was proper. Defendant contends that there was no justification to search the car until Officer Granadon improperly ordered Plantón out of the vehicle. Defendant maintains that the right to enter a vehicle may not be predicated upon the fact that the police discover a reason to arrest or search the passenger after illegally ordering the passenger out of the car. The State maintains that defendant’s contention lacks merit because the gun was discovered as a result of a valid warrantless search of defendant’s car under the plain view exception to the general rule prohibiting warrantless searches.

“It is well established that under certain circumstances the police may seize evidence in plain view without a warrant.” (Coolidge v. New Hampshire (1971), 403 U.S. 443, 465, 29 L. Ed. 2d 564, 582, 91 S. Ct. 2022, 2037.) “The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure.” Coolidge, 403 U.S. at 466, 29 L. Ed. 2d at 583, 91 S. Ct. at 2038.

In People v. Huth (1977), 45 Ill. App. 3d 910, 914-15, 360 N.E.2d 408, 411-12, this court held that a police officer did not abridge the defendant’s fourth amendment rights by searching the defendant and the passengers remaining in the vehicle, after the defendant was stopped for failing to signal before making a right-hand turn and the defendant was unable to produce a valid driver’s license. The court reasoned that “[s]uch circumstances warranted the officer’s reasonable belief that he was dealing with a criminal rather than a mere traffic violator.” (Huth, 45 Ill. App. 3d at 915, 360 N.E.2d at 412.) The court in Huth concluded that “[t]he subsequent seizure of the contraband *** in plain view [on the floor of the defendant’s car] and its introduction into evidence did not violate defendant’s constitutional rights.” Huth, 45 Ill. App. 3d at 915, 360 N.E.2d at 412.

The present case is analogous to Huth. In the present case, the police stopped defendant for driving with bright headlights on, just as the defendant in Huth was stopped for a traffic law violation. In the present case, as in Huth, defendant then exited the vehicle, approached the officers, and was unable to present a valid driver’s license. In both Huth and the present case, the officers subsequently approached the vehicles, asked the passengers to exit the vehicles, and found an incriminating object inside of the car in plain view.

Upon applying the ruling in Huth, we find that the seizure of the gun found in plain view in defendant’s vehicle did not abridge defendant’s constitutional rights because the gun was discovered as a result of a valid warrantless search of defendant’s vehicle under the plain view exception to the rule prohibiting warrantless searches.

Next, we will address the issue of whether defendant was properly found guilty of possession of an unlawful weapon beyond a reasonable doubt. Defendant contends that the statutory presumption that articles found inside of a vehicle are within the possession of any passengers in the vehicle cannot be applied in order to prove his knowledge of the existence of a weapon pursuant to People v. Davis (1977), 50 Ill. App. 3d 163, 167-68, 365 N.E.2d 1135, 1138-39. The State maintains that defendant has waived his right to consideration of this matter by this court because he failed to make a specific objection at trial at the time of the alleged improprieties and he failed to make an objection in his motion for a new trial. If we find that this issue was not waived, the State argues in the alternative that defendant’s contention is meritless because defendant was proven guilty of unlawful possession of a weapon beyond a reasonable doubt.

We find that defendant waived his right to review of this issue. A defendant preserves his right to appeal the trial court’s disposition of a matter by objecting to the alleged impropriety in a timely manner, and by mentioning the specific objection in his motion for a new trial. (People v. Enoch (1988), 122 Ill. 2d 176, 186-88, 522 N.E.2d 1124, 1129-32.) “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” 134 Ill. 2d R. 615(a).

There is no evidence that the trial court committed plain error. There is a statutory presumption that the presence in an automobile other than a public omnibus of any weapon is prima facie evidence that the weapon is in the possession of, and is being carried by, all persons in said automobile at the time such weapon is found. (Ill. Rev. Stat. 1989, ch. 38, par. 24—1(d).) Where a defendant has been found guilty by a trial court, all evidence is to be considered in the light most favorable to the prosecution upon judicial review. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Schorle (1990), 206 Ill. App. 3d 748, 759, 565 N.E.2d 84, 91.) Upon examining the record in light of the statute, the United States Supreme Court’s standard for construction of evidence adduced at trial and other existing case law, we conclude that the trial court did not commit plain error when it applied the statutory presumption and found defendant guilty after the close of the evidence. (See People v. Hood (1971), 49 Ill. 2d 526, 529-30, 276 N.E.2d 310, 312-13; People v. Davis (1977), 50 Ill. App. 3d 163, 167-68, 365 N.E.2d 1135, 1138-39.) Defendant therefore has waived his right to judicial review of this issue.

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

Affirmed.

GREIMAN, P.J., and CERDA, J., concur.


text:
    CANTEEN CORPORATION, Plaintiff-Appellee, v. FORMER FOODS, INC., f/k/a Tommy Lasorda Foods, Inc., Defendant-Appellant.
    First District (3rd Division)
    No. 1—91—0437
    Opinion filed October 28, 1992.

      Torshen, Sehoenfield & Spreyer, Ltd. (Jerome H. Torshen, Mark K. Schoenfield, and James K. Genden, of counsel), and Sugar, Friedberg &
      Felsenthal (Richard A. Sugar and Andrew B. David, of counsel), both of Chicago, for appellant.
    Sidley & Austin, of Chicago (James A. Hardgrove and John M. Breen, of counsel), for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant, Former Foods, Inc., previously known as Tommy Lasorda Foods, Inc. (TLF), sought damages in an arbitration proceeding from plaintiff, Canteen Corporation (Canteen), for plaintiff’s alleged breach of contract. The arbitration panel awarded defendant a $524,553.12 judgment and granted plaintiff a $16,151 setoff. On July 19, 1990, plaintiff filed an action in the circuit court to vacate the arbitration award pursuant to sections 12 and 15 of the Uniform Arbitration Act and the common law. (Ill. Rev. Stat. 1989, ch. 10, pars. 112, 115.) Defendant subsequently moved to confirm the award pursuant to section 11 of the Uniform Arbitration Act. (Ill. Rev. Stat. 1989, ch. 10, par. 111.) On January 18, 1991, the trial court granted plaintiff’s motion to vacate the award. Defendant now appeals. We reverse and grant defendant’s motion to confirm the arbitration award.

The following issues are before this court for review: (1) whether the arbitration panel’s refusal to hear evidence of defendant’s actions subsequent to November 30, 1987, violated section 12(a)(4) of the Uniform Arbitration Act (Ill. Rev. Stat. 1989, ch. 10, par. 112(a)(4)); (2) whether the trial court applied the correct standard of review for an arbitration award pursuant to section 12(a)(3) of the Uniform Arbitration Act (Ill. Rev. Stat. 1989, ch. 10, par. 112(a)(3)); (3) whether the trial court erred in vacating defendant’s arbitration award where an arbitration panel found that plaintiff breached a requirements contract with defendant by terminating its requirements purchase of popcorn from defendant, without giving defendant 30 days to cure, and where the panel then held that plaintiff’s termination of the contract was proper; (4) whether the trial court erred when it held that the arbitration panel exceeded its authority and committed a gross error of law by disregarding the 30-day written notice and opportunity to cure provision; (5) whether the trial court erred in ruling that the arbitrators committed a gross error of law when they disregarded the language of the contract by ignoring plaintiff’s timely reinstatement of requirements purchasing and defendant’s actions which rendered its own performance impossible prior to the expiration of any cure period; and (6) whether the arbitration panel committed gross error by awarding damages to defendant which included expenses which defendant did not incur, and expenses which defendant saved by mitigating its damages.

On August 22, 1986, TLF and Canteen entered into a requirements contract whereby TLF was to be the exclusive supplier of microwaveable popcorn to be sold in vending machines owned or serviced by Canteen. In section 4 of the contract, TLF warranted that “Lasorda’s microwave popcorn shall be of the same or better quality than that currently sold by Canteen and meet industry quality standards.” Section 4 also provided that “[i]f Lasorda fails to provide a satisfactory product which meets Canteen’s standards in quality and is competitively priced, Canteen may terminate this agreement in accordance with Section 12.” Section 12 of the agreement provides as follows:

“12. Termination for Cause and Right to Cure. Each party hereto reserves the right, in case the other party fails to carry out any conditions of this Agreement, to cancel the Agreement after due demand in writing addressed to the other party. If at the end of thirty (30) days from the date of the receipt of such demand, the other party has not complied with the demand, the Agreement shall immediately end, without necessity of any other steps being taken.”

Section 16 of the contract provided that the contract “is to be *** governed and construed according to the laws of the State of Illinois.” Section 19 of the agreement provided that “[a]ny controversy or claim arising out of or related to this Agreement, or breach thereof, shall be settled by binding arbitration in Illinois.”

TLF and Canteen tested the popcorn before it was made available for sale to the public. Canteen began delivering the popcorn to its vending machines during the summer of 1987. Soon thereafter, Canteen learned from several of its customers that the popcorn supplied by TLF was defective. Canteen then informed TLF that it had received complaints from its clients concerning the quality of the popcorn. TLF maintained that any problems were not caused by the poor quality of its product, but by Canteen’s failure to recalibrate the microwave ovens adjacent to its vending machines so that the ovens would heat the popcorn at an optimal temperature. Dan Krypan, a vice-president of Canteen, responded to TLF by writing the following letter dated October 12, 1987, to Angelo Demetriou, president of TLF:

“Dear Angelo:
We are finding it increasingly difficult to maintain and support the exclusive use of Lasorda popcorn in Canteen’s vending operations.
The same complaints we’ve reviewed many times over the last six weeks continue to come in by phone and mail; leaking packaging, burned bags and product, unpopped kernels and general dissatisfaction.
Many clients have demanded that Lasorda popcorn be removed and the original competitive brand brought back. In every case, this followed complaints by client employees at the affected location. While we were able to delay or diffuse this situation in some cases, there is an undercurrent of resentment there that can erupt at any moment.
Specifically to the point, we find that our sales have declined from 20% to 40% where we carry Lasorda as the only popcorn. That figure truly understates the actual effect, since we have put Lasorda into our glassfront machines, where our tests show we would normally get a 26% lift.
In summary, while we wish to continue the program, client demands for removal and field operations reports of substantial sales losses, compels a re-evaluation of our position and requires that we no longer provide Lasorda exclusivity.”

Canteen later recalibrated the microwave ovens adjacent to its vending machines. On October 12, 1987, Canteen unilaterally ceased to purchase popcorn from TLF.

TLF then telephoned Canteen to object to the termination of Canteen’s requirements purchasing. On October 16, 1987, Krypan wrote to James Atsaves, the chief executive officer of TLF. Krypan’s letter reiterated previous allegations that the popcorn supplied by TLF was poor in quality.

Later that month, Atsaves wrote to Krypan on behalf of TLF in response to Canteen’s letters dated October 12, 1987, and October 16, 1987. In Atsaves’ letter dated October 26, 1987, he reiterated his objection to Canteen’s termination of requirements purchasing. Atsaves reminded Krypan that the contract provided that “Canteen was to buy Lasorda popcorn exclusively.”

Several days later, Atsaves wrote to Krypan again. The following letter written by Atsaves was dated November 3, 1987:

“Dear Dan:
This letter is to inform you that [TLF] currently stands ready to continue to fulfill our exclusive contract with your company for microwave popcorn. It is our position that all of the problems which we are aware of and have control over (and are not your company’s responsibility) detailed in your [letters dated] October 12th and October 14th have now been resolved. Therefore unless we are formally notified to the contrary, we stand ready to fulfill our part of the exclusive contract and in turn expect Canteen to support its end of the contract by retracting any information (verbal or written) which could be interpreted as rescinding [TLF’s] exclusive contract.
In my letter to you dated October 26, 1987, I detailed all of your complaints and our response to them. It is our opinion that all of these complaints which you have permitted us to respond to have been answered and resolved. Based upon our telephone conversation on October 26, 1987, we did not view your letter to Angelo J. Demetriou — dated October 12 or your letter to me— dated October 14th as an official cancellation notice per Section 12 of our contract, because there was no reference to the contract, it was somewhat ambiguous and you told me these letters were to remain in Corporate and not be given to anyone outside of Chicago. Despite your assertion it has now come to my attention from various sources that Canteen has issued either a verbal or written cancellation of our exclusive contract with your company. We feel this is a direct violation of Section 12 of our contract which provides both parties with a period of 30 days to cure any violation of the contract prior to cancellation.
While we wish to avoid any legal avenues open to us, I must remind you that our 5 year contract with your company is the centerpiece of the business plan of our company. It was and remains, the major support for the success or failure of this company.”

Canteen responded to Atsaves’ letter by refusing to reinstate exclusive requirements purchasing of popcorn from TLF. Canteen, however, continued to purchase popcorn from TLF on a nonexclusive basis.

Upon hearing of Canteen’s refusal to reinstate requirements purchasing, TLF notified its shareholders and Tommy Lasorda Advance Packaging Company (Advance Packaging), TLF’s packer, that Canteen refused to purchase its requirements from TLF. Subsequently, TLF’s shareholders refused to provide additional funds to the company. In addition, Advance Packaging increased its price for services rendered to TLF and adopted more restrictive credit terms for the company.

On November 9, 1987, Canteen offered to introduce TLF popcorn to the field as a “preferred” product. Under this plan, Canteen would “aggressively support” the product while TLF worked to upgrade the quality of its popcorn with the ultimate goal of TLF becoming Canteen’s exclusive supplier again. On November 13, 1987, Atsaves rejected this proposal and instead demanded that Canteen pay TLF damages or purchase the company. On November 23, 1987, TLF can-celled its license agreement with Thomas Lasorda because the company was unable to pay the celebrity.

On November 25, 1987, Ken Davidson, Canteen’s purchasing director, informed Atsaves that Canteen would resume purchasing its requirements from TLF. This conversation was documented in a contemporaneous memorandum drafted by Davidson. Immediately following notice to TLF on November 25, Les Lenzner, Canteen’s vending operations director^ instructed all of Canteen’s field operators that TLF was to be “our exclusive popcorn.”

On November 30, 1987, TLF cancelled its outstanding orders for raw materials. In December of 1987, TLF ceased operations. TLF then invoked the arbitration clause in the contract in an effort to obtain $1,669,815.87 for damages it suffered as a result of Canteen's refusal to perform pursuant to the requirements contract. TLF alleged that Canteen breached section 12 of the agreement by terminating its requirements purchasing without giving TLF 30 days to cure. TLF maintained that the breach occurred when Canteen unilaterally declared that it would no longer abide by the exclusivity provision. The dispute was heard by a panel of three arbitrators. The first portion of the hearing addressed the issue of liability while the second phase of the hearing focused exclusively upon the issue of damages.

During the arbitration hearing, Atsaves testified that Canteen refused to resume requirements purchasing. TLF maintained that Canteen’s failure to restore exclusivity was demonstrated by its business records. TLF further alleged that Canteen’s own witnesses agreed that TLF’s continuing demands for exclusivity would not have made sense if Canteen had already agreed to resume requirements purchasing. One of the arbitrators noted that the evidence of Canteen’s purchases from TLF did not reflect an increase which should have followed a reinstatement of requirements purchasing.

In addition, TLF alleged that Canteen officials admitted to TLF that its field personnel were hostile to mandates that they use an exclusive supplier. TLF asserted that Canteen refused to purchase popcorn exclusively from TLF due to its own field personnel’s resistance to mandates for exclusive purchasing. In addition, Atsaves testified that he was told by Canteen that “no matter what happened, [Canteen] wasn’t going to turn around and re-mandate it *** even though Canteen felt the product had been corrected.”

Four witnesses testified on behalf of Canteen concerning the popcorn’s defects. Canteen also maintained that TLF’s own documents confirmed that its product was defective. These documents include data from tests conducted by TLF in September of 1987. Canteen alleged that the documents revealed that a substantial percentage of the bags of popcorn charred when tested in a microwave oven, including those bags which were heated in the optimal manner recommended by TLF.

Finally, Canteen alleged that in November of 1987, it offered to replace the requirements contract with a minimum purchase arrangement, it then reinstated exclusivity with TLF and it offered to assist TLF by purchasing the company’s inventory after TLF ceased to operate, but that TLF refused these offers. In addition, Canteen maintained that there was no “field resistance” to TLF popcorn or any other products purchased by Canteen exclusively.

The arbitrators refused to permit oral testimony by witnesses for Canteen concerning any events which occurred after November 30, 1987, on the grounds that such evidence was derived from settlement negotiations between Canteen and TLF. This ruling prevented Canteen from presenting testimony to support its allegation that TLF failed to respond to Canteen’s offer to replace the contract with a minimum purchase arrangement, and Canteen’s reinstatement of exclusivity. Canteen offered into evidence certain handwritten notes taken during discussions concerning these matters without objection by TLF or the panel. The arbitrators, however, precluded any testimony concerning the notes.

During the portion of the hearing concerning damages, the arbitrators solicited legal briefs from the parties on the issue. TLF argued that its damages amounted to $1,669,813, while Canteen attempted to show that defendant suffered no damage. Both parties submitted briefs and reply briefs. In addition, each party retained an expert who prepared a written report analyzing the proper measure of damages. These reports were submitted into evidence in lieu of direct testimony from the experts. Each expert was cross-examined by opposing counsel. Furthermore, plaintiff’s records of its purchases from 1987 through 1989 were introduced into evidence. George Bunda, plaintiff’s senior purchasing clerk for vended products, testified to the accuracy and derivation of the sales volume figures, and the appropriate sales price per unit for calculating damages. Atsaves then testified as to TLF’s per-unit prices and costs as well as its overhead.

At the end of the hearing, the arbitrators expressly found that TLF tendered nonconforming goods to Canteen. During the course of the hearing, however, the panel noted that there was clear evidence that Canteen terminated exclusive purchasing rather than merely suspending performance. In addition, the arbitrators noted that Canteen failed to utilize alternative remedies such as seeking cover for the defective product, or rejecting nonconforming popcorn. The panel awarded TLF a $524,553.12 judgment for lost profits less $16,151 owed to Canteen in unpaid rebates. The arbitrators did not explain the manner in which they calculated defendant’s award.

On July 19, 1990, Canteen filed a petition to vacate the arbitration award in the circuit court of Cook County pursuant to sections 12 and 15 of the Uniform Arbitration Act. (Ill. Rev. Stat. 1989, ch. 10, pars. 112, 115.) Prior to ruling on this cause, the trial court articulated the standard of review for an arbitration award as established in Garver v. Ferguson (1979), 76 Ill. 2d 1, 389 N.E.2d 1181.

The trial court ruled that the arbitrators “exceeded their authority and committed gross error in finding [Canteen] in breach of the contract.” In making this ruling, the court relied upon the arbitrators’ determination that “Canteen had grounds to terminate the contract for nonconforming goods.” The trial court held that Canteen had a clear legal right to suspend its performance and await adequate assurances of conforming future performance from TLF, and that Canteen had “suspended performance” and demanded adequate assurances pursuant to section 2 — 609 of the Uniform Commercial Code (Code) (Ill. Rev. Stat. 1989, ch. 26, par. 2 — 609).

In addition, the court found that the arbitrators committed a gross error by interpreting the contract as “either exclusive or *** terminated,” thereby limiting Canteen’s remedies for the tender of nonconforming goods to termination of the contract. The trial court further reasoned that by limiting Canteen in this manner, the arbitrators “manifestly disregarded” the language of sections 4 and 12 of the contract and ignored applicable law governing the contractual limitation of remedies.

The trial court also found that “[t]ermination under Section 12 of the agreement with its 30-day cure period was not [Canteen’s] sole remedy for the tender of nonconforming popcorn,” on the basis that section 2 — 719 of the Code required an express statement that a remedy is the sole remedy available. Ill. Rev. Stat. 1989, ch. 26, par. 2— 719.

The trial court further ruled that “even assuming that Canteen did breach the agreement by suspending exclusivity,” the 30-day period for cure never commenced because TLF did not demand cure or send Canteen the contractually required written notice of termination. The trial court concluded that the arbitrators therefore exceeded their authority by “disregarding the 30-day written notice provision for termination of the agreement.” Furthermore, the trial court held that the arbitrators committed a gross error when they disregarded the termination clause by failing to acknowledge that “Canteen reinstated exclusivity prior to 30 days after the receipt of the first letter.”

The trial court also concluded that TLF rendered its own performance under the contract impossible by terminating its licensing agreement with Tommy Lasorda on November 23, 1987, “before any cure period could have expired.”

Finally, the trial court held that the arbitrators exceeded their authority and committed a gross error of law “by not applying the [Code] as required by Section 16 of the contract,” because said section provides that the contract “is to be signed, governed and construed according to the laws of the State of Illinois.” See Ill. Rev. Stat. 1989, ch. 26, par. 1 — 101 et seq.

On January 18, 1991, the trial court entered an order granting Canteen’s motion to vacate the arbitration award. Because of the above ruling, the court did not address the issue of whether the arbitrators calculated TLF’s damages correctly. This appeal followed.

First, plaintiff contends that the arbitrators’ refusal to hear material evidence concerning events which occurred in December of 1987 violated section 12(a)(4) of the Uniform Arbitration Act. (Ill. Rev. Stat. 1989, ch. 10, par. 112(a)(4).) Specifically, plaintiff claims that it was prejudiced because the arbitrators refused to consider evidence of information elicited during settlement negotiations between the parties, including defendant’s business plans and financial statements. Defendant maintains that the panel’s exclusion of the evidence did not constitute a gross error of law.

Section 12(a)(4) of the Uniform Arbitration Act provides as follows:

“§12. Vacating an award, (a) Upon application of a party, the court shall vacate an award where:
* * *
(4) The arbitrators *** refused to hear evidence material to the controversy *** as to prejudice substantially the rights of a party[.]” Ill. Rev. Stat. 1989, ch. 10, par. 112(a)(4).

Upon judicial review of an arbitration order, an appellate court must presume that the arbitrators did not exceed their powers. (Burd, Inc. v Stoneville Furniture Co. (1985), 134 Ill. App. 3d 149, 154, 479 N.E.2d 962, 965.) Allegations that an arbitrator refused to hear material evidence need not be addressed by a court of review where the record fails to show that the arbitrators excluded any material evidence offered by the parties. Rauh v. Rockford Products Corp. (1991), 143 Ill. 2d 377, 390, 574 N.E.2d 636, 643.

In the present case, plaintiff has failed to meet its burden of rebutting the presumption that the arbitrators acted within their powers because the record shows that the evidence which the arbitrators declined to consider was immaterial to the resolution of the dispute before them. The questions presented to the arbitration panel were whether Canteen breached its contract with TLF, and whether TLF could obtain damages from Canteen as a result of Canteen’s breach. Plaintiff sought to submit defendant’s financial statements and evidence of defendant’s business plans to the panel. The arbitrators, who were in the best position to make determinations with regard to the materiality of the evidence, ruled that the evidence in question was irrelevant. We agree. The information in question was generated by defendant and obtained by plaintiff during the month of December 1987. The record shows that plaintiff breached the contract on October 12, 1987, by terminating its exclusive requirements purchasing of popcorn from defendant. The evidence which plaintiff attempted to submit to the arbitrators was generated over one month after plaintiff’s alleged breach, and several weeks after a cure period would have ended had plaintiff invoked the remedy provided in section 12 of the contract on the date of its breach. The arbitration panel’s refusal to hear the evidence submitted by plaintiff, therefore, did not substantially prejudice plaintiff’s rights. Accordingly, we rule that the arbitrators did not violate section 12(a)(4) of the Uniform Arbitration Act (Ill. Rev. Stat. 1989, ch. 10, par. 112(a)(4)) by refusing to hear the evidence in question.

Next, defendant contends that the trial court erred by applying the wrong standard of review to the arbitration order and by substituting its own evaluation of the facts and its own interpretation of the contract between the parties. Plaintiff maintains that the trial court applied the proper standard of review for an arbitration award and that it correctly determined that the arbitrators exceeded their authority and committed numerous errors of law.

It is well settled in Illinois that petitions to vacate arbitration awards will be granted only in extraordinary circumstances. Judicial review of an arbitrator’s award is more limited in scope than an appellate court’s review of a trial court’s decision. (Bernhardt v. Polygraphic Co. of America (1986), 350 U.S. 198, 203, 100 L. Ed. 199, 205, 76 S. Ct. 273, 276; Garver v. Ferguson (1979), 76 Ill. 2d 1, 7-8, 389 N.E.2d 1181, 1183.) “[J]udges[ ] have no power to reach and determine the merits of an arbitration award merely because of strong disagreement with the arbitrator’s interpretation of the contract.” (Hollister, Inc. v. Abbott Laboratories (1988), 170 Ill. App. 3d 1051, 1062, 524 N.E.2d 1035, 1042.) Section 12(a)(3) of the Uniform Arbitration Act provides as follows:

“§12. Vacating an award, (a) Upon application of a party, the court shall vacate an award where:
* * *
(3) The arbitrators exceeded their powers[.]” Ill. Rev. Stat. 1989, ch. 10, par. 112(a)(3).

The Illinois Supreme Court articulated the appropriate standard of review for an appeal of an arbitration award pursuant to section 12(a)(3) of the Uniform Arbitration Act (Ill. Rev. Stat. 1989, ch. 10, par. 112(a)(3)) in Garver (76 Ill. 2d at 9-10, 389 N.E.2d at 1184). The Garver court stated:

“[T]he question for the court is whether the construction of the contract made by the arbitrator is a reasonably possible one that can seriously be made in the context in which the contract was made. Stated affirmatively, if all fair and reasonable minds would agree that the construction of the contract made by the arbitrator was not possible under a fair interpretation of the contract, then the court would be bound to vacate or refuse to confirm the award.”

The Garver court reasoned that “[a] long line of cases has established that an arbitrator’s award will not be set aside because of his errors in judgment or mistakes of law or fact.” (Garver, 76 Ill. 2d at 7, 389 N.E.2d at 1183. See also Burchell v. Marsh (1854), 58 U.S. (17 How.) 344, 349, 15 L. Ed. 96, 99; Kalish v. Illinois Education Association (1988), 166 Ill. App. 3d 406, 409, 519 N.E.2d 1031, 1032.) The Garver court emphasized that “[wjhenever possible a court must construe an award so as to uphold its validity.” Garver, 76 Ill. 2d at 10, 389 N.E.2d at 1184.

In keeping with the Garver decision, this court has held that there is a presumption that the arbitrators below did not exceed their powers. (Burd, 134 Ill. App. 3d at 154, 479 N.E.2d at 965.) We have also ruled that the party challenging an arbitration award bears the burden of establishing that the award was improper by “clear, strong and convincing evidence.” Hollister, 170 Ill. App. 3d at 1062, 524 N.E.2d at 1042; Burd, 134 Ill. App. 3d at 154, 479 N.E.2d at 965.

Although the trial court cited Garver before rendering its decision, the court committed reversible error because it disregarded the strict standard of review for arbitration awards mandated in Garver. In the present case, the arbitrators had the opportunity to hear the testimony of the witnesses, to assess their credibility, and to consider over 100 exhibits. The arbitrators found that defendant tendered nonconforming goods to plaintiff, but that plaintiff terminated its exclusive purchasing from defendant instead of suspending its performance and giving defendant an opportunity to cure. The panel also found that plaintiff failed to utilize alternative remedies available in the Code. Ill. Rev. Stat. 1989, ch. 26, par. 1 — 101 et seq.

There was ample evidence in the record to support the arbitrators’ conclusions. The letter written by Krypan dated October 12, 1987, was evidence that plaintiff terminated exclusive requirements purchasing from defendant. Furthermore, on November 9, 1987, plaintiff conceded that it offered to reintroduce defendant’s popcorn into the market as a “preferred” product with the ultimate goal of defendant becoming plaintiff’s exclusive supplier again. Finally, witnesses for defendant testified during the arbitration hearing that plaintiff refused to reinstate exclusivity. The above evidence combined justifies the arbitrators’ award.

The trial court invaded the province of the arbitrators. The trial court substituted its own construction of the contract and interpretation of the facts for the finding made by the arbitration panel. The trial court held that the arbitrators exceeded their authority and committed a gross error of law when they found that plaintiff breached the contract. The trial court also ruled that plaintiff had in fact suspended the contract and demanded adequate assurances. In addition, the trial court found that the panel committed a gross error when it manifestly disregarded sections 4 and 12 of the contract, and when it ignored law governing the contractual limitation of remedies. The trial court ruled that plaintiff had reinstated exclusivity, but that defendant rendered its own performance impossible by terminating its licensing agreement with Thomas Lasorda. On the basis of the aforementioned findings, the trial court vacated the arbitrators’ award.

Although the trial court disagreed with the panel’s conclusions, the trial court erred in vacating defendant’s arbitration award because all fair and reasonable minds would not agree that the panel’s construction of the contract was impossible under a fair interpretation of the contract. Plaintiff has failed to establish that the trial court correctly ruled that the arbitrators exceeded their authority and committed numerous errors of law, or that the panel’s award was improper. Plaintiff, therefore, has failed to overcome the presumption in favor of the validity of the arbitrators’ decision. Accordingly, we rule that the trial court erred by failing to apply the proper standard of review and by substituting its own evaluation of the facts and its own interpretation of the contract between the parties.

Next, defendant alleges that the trial court erred in vacating its award since it was reasonable for the panel to conclude that plaintiff breached the contract by terminating exclusivity without giving defendant 30 days to cure. Defendant maintains that the abrogation of exclusivity terminated the contract for the following reasons: (1) exclusivity is an essential term of a requirements contract and the arbitrators acknowledged that exclusivity was the essence of the agreement; (2) evidence .presented to the panel which showed that the 30-day cure provision was not plaintiff’s sole remedy prohibited plaintiff from unilaterally terminating exclusive purchasing; (3) plaintiff’s withdrawal of exclusivity breached the contract; (4) the trial court erred in assuming that plaintiff could or even attempted to invoke section 2— 609 of the Code (Ill. Rev. Stat. 1989, ch. 26, par. 2 — 609); and (5) there was evidence that plaintiff did not cure its breach.

Plaintiff, however, maintains that the trial court correctly ruled that the arbitrators committed a gross error of law and disregarded the contract because the panel, after finding that plaintiff breached the contract, held that plaintiff could terminate the agreement but could not suspend its performance. In support of its argument, plaintiff alleges that the panel found that defendant tendered nonconforming goods in breach of the quality standards expressly warranted in the contract, and because the arbitrators disregarded the language of the agreement and Illinois law when they limited plaintiff’s available remedies with respect to nonconforming goods.

We agree with defendant. We find that the trial court erred when it vacated defendant’s award, because the arbitrators properly concluded that plaintiff breached the contract when it terminated its requirements purchasing from defendant in violation of section 12 of the agreement.

The essence of a requirements contract is the buyer’s obligation to obtain its requirements for specified goods by purchasing the goods exclusively from the seller. The quantity of goods that a buyer agrees to purchase is an essential term of a sales contract. (Ill. Rev. Stat. 1989, ch. 26, par. 2—201(1).) If the buyer’s quantitative obligation cannot be measured, the contract is not enforceable. (Ill. Rev. Stat. 1989, ch. 26, par. 2—201(1); Ray Dancer, Inc. v. D M C Corp. (1988), 175 Ill. App. 3d 997, 1004, 530 N.E.2d 605, 610.) In a requirements contract, the buyer’s obligation to purchase is. not measured by a specified quantity of goods, but by the agreement to purchase said goods exclusively from the seller. (Ill. Rev. Stat. 1989, ch. 26, par. 2—306.) A requirements contract which does not obligate the buyer to obtain all of its requirements from the seller is illusory. (Ray Dancer, 175 Ill. App. 3d at 1004, 530 N.E.2d at 610. See also J. Calamari & J. Perillo, Contracts §4—19, at 166 (2d ed. 1977); 1A A. Corbin, Contracts §157, at 40 (2d ed. 1963); 1 S. Williston, Contracts §§104A, 105A, at 402, 420 (3d ed. 1957).) On October 12, 1987, plaintiff declared that it would not honor the exclusivity provision of the contract. When plaintiff stopped purchasing popcorn exclusively from defendant, it terminated the requirements contract. Without exclusivity there was no quantity term left in the contract. Since the contract had no other quantity term, plaintiff’s termination of exclusivity constituted a breach of the contract. Regardless of whether defendant tendered nonconforming popcorn, plaintiff was not entitled to terminate exclusivity without giving defendant written notice and 30 days to cure.

The trial court ruled that plaintiff “chose to suspend performance and demand adequate assurances, in compliance with section 2—609 of the Code, due to the reasonable grounds for insecurity.” Upon viewing the evidence in the present case in the context of the ruling in Garver, we find that the trial court’s finding was erroneous. The arbitrators expressly found that plaintiff’s actions in October of 1987 constituted a breach of contract. The record supports this conclusion. Section 12 of the contract substituted the requirement of a 30-day cure period for the Code provision that would have allowed plaintiff to suspend performance and await adequate assurances. Furthermore, plaintiff never invoked section 2—609. (Ill. Rev. Stat. 1989, ch. 26, par. 2—609.) The Code permits the parties to a contract to substitute their own remedies for the remedies specified in the Code. Specifically, section 2—719(1)(a) of the Code provides:

“§2 — 719. Contractual Modification or Limitation of Remedy. (1) Subject to the provisions of subsections (2) and (3) of this Section and of the preceding section on liquidation and limitation of damages,
(a) the agreement may provide for remedies in addition to or in substitution for those provided in this Article ***.” Ill. Rev. Stat. 1989, ch. 26, par. 2—719(1)(a).

The parties substituted their own remedy whereby plaintiff could be released from its obligation to purchase popcorn exclusively from defendant. The parties bargained for a method of terminating' the contract which was contrary to the procedure prescribed by section 2—609 of the Code. (Ill. Rev. Stat. 1989, ch. 26, par. 2—609.) The termination provision chosen by the parties only allowed plaintiff to cease its performance after written notice to defendant and a cure period. The contract prohibited plaintiff from immediately ceasing to perform. In sum, the contract, while preserving other Code remedies, substituted the notice and 30-day cure provision of section 12 for section 2—609 of the Code. (Ill. Rev. Stat. 1989, ch. 26, par. 2—609.) The trial court’s ruling was also erroneous because the record does not substantiate the trial court’s finding that plaintiff attempted to invoke the remedy provided in section 2—609 of the Code. Plaintiff’s letter dated October 12, 1987, in which it terminated exclusivity, does not mention section 2—609 of the Code or demand assurances. (Ill. Rev. Stat. 1989, ch. 26, par. 2—609.) The trial court, therefore, committed reversible error when it substituted its conclusions for those of the arbitrators and ruled that plaintiff’s letter dated October 12, 1987, constituted an exercise of a remedy available under section 2—609 of the Code. Ill. Rev. Stat. 1989, ch. 26, par. 2—609.

In addition, we find that plaintiff never cured its breach. The testimony of Atsaves, coupled with plaintiff’s letter dated October 16, 1987, and evidence of other communications between plaintiff and defendant, was sufficient justification for rejecting plaintiff’s position.

The construction of the contract made by the arbitrators was reasonable. All fair and reasonable minds would not agree that the arbitrators’ construction of the contract was impossible under a fair interpretation of the agreement. The trial court substituted its own construction of the contract and interpretation of the facts for the finding made by the arbitration panel. Plaintiff has failed to demonstrate that the trial court overcame the presumption in favor of the arbitrators’ decision. Accordingly, we hold that the trial court erred in vacating defendant’s award on the basis that the arbitrators committed gross errors of law.

Defendant next contends that the trial court erred in finding that the arbitrators exceeded their authority because the record supports the panel’s conclusion that it complied with section 12 of the contract when it demanded in writing that plaintiff restore exclusive requirements purchasing. Plaintiff maintains that the trial court correctly ruled that the arbitration panel exceeded its authority and committed a gross error of law by disregarding the 30-day written notice and opportunity to cure provision in section 12 of the contract.

We hold that the trial court erred when it overturned the arbitration panel’s finding. The record amply supports the arbitrators’ conclusion that defendant, in compliance with the contract, demanded in writing that plaintiff restore exclusivity and cease breaching the contract. The trial court erred when it ruled that “[e]ven assuming that Canteen did breach the agreement by suspending exclusivity, the 30-day time period never began to run, as no demand or written notice of termination was received from defendant.” Defendant notified plaintiff in writing on two separate occasions that it had no right to terminate its requirements purchasing of popcorn. Written notice came in a letter dated October 26, 1987. This letter clearly stated that plaintiff had no grounds to justify terminating exclusivity from defendant. The letter demanded that plaintiff restore exclusivity. This letter alone constitutes written notice and a demand to cure. The second letter written by defendant was dated November 3, 1987. In this letter, defendant insisted that plaintiff cure its breach of its obligation to buy popcorn exclusively from it. The letter stated that plaintiff was in “direct violation of [the] contract which provides both parties with a period of 30 days to cure any violation of the contract prior to cancellation.”

It is ironic that plaintiff, which abrogated its contractual obligation to purchase its requirements from defendant, without any notice or cure period, argued before the trial court that it could not be held liable for its breach because defendant allegedly did not give the 30-day notice required by section 12 of the contract. Moreover, plaintiff's argument is incorrect. The record shows that the arbitration panel had a sufficient basis for concluding that defendant satisfied the requirements enunciated in section 12 of the agreement.

Plaintiff has failed to demonstrate by clear and convincing evidence that the arbitration panel’s ruling was improper. The panel’s construction of the contract was reasonable, and all reasonable minds would not agree that the arbitrators’ construction of the contract was impossible. Given the standard of review which the trial court was required to apply, the panel’s conclusion should not have been overturned.

Next, defendant alleges that the trial court erred in vacating its award because the trial court relied upon its beliefs that plaintiff restored exclusivity and that defendant terminated its relationship with Thomas Lasorda before any cure period could have ended as the basis for vacating the arbitrators’ award. Plaintiff maintains that the trial court correctly ruled that the arbitrators committed gross error and disregarded the language of the agreement by ignoring its timely cure, and defendant’s behavior which rendered defendant’s own performance impossible before the expiration of any cure period.

The trial court asserted that “Canteen reinstated exclusivity prior to the 30 days after the receipt of the first letter.” The trial court found that the arbitrators committed a gross error in determining that Canteen breached the contract based upon this conclusion. The trial court’s determination is contrary to the record. As we noted above, plaintiff never resumed its exclusive purchasing from defendant. Another reason given by the trial court for vacating the arbitrators’ award was its belief that defendant’s “own performance was impossible before any cure period could have expired,” as Thomas Lasorda terminated the agreement on November 23, 1987. The record shows that defendant did not sign a termination agreement with Lasorda on November 23, 1987. While it received a draft of a termination agreement on that date, it delayed executing the document until December of 1987 in the hope that a restoration of exclusivity would make this unnecessary.

“[J]udges[ ] have no power to reach and determine the merits of an arbitration award merely because of strong disagreement with the arbitrators’ interpretation of the contract.” (Hollister, 170 Ill. App. 3d at 1062, 524 N.E.2d at 1042.) Again, the trial court erroneously substituted its own interpretation of the facts for the reasonable conclusions of the arbitrators. In so doing, the trial court violated Carver and committed reversible error.

Finally, plaintiff contends that the arbitrators committed gross error by awarding damages which included overhead expenses which defendant did not incur and which it saved through mitigation. Defendant maintains that the arbitration panel’s award should be confirmed because the arbitrators applied the correct standard of damages and there was sufficient evidence to support the order.

We agree with defendant. The reasons discussed above which require the reversal of the portion of the order vacating the award also require reversal of the the trial court’s denial of defendant’s motion to confirm. The arbitrators concluded that plaintiff owed defendant gross damages of $524,533.12, less $16,151 in unpaid rebates. The arbitrators did not explain their award. “It is well settled that arbitrators need not provide explanations or rationale to show how their conclusions were reached.” (Braun/Skiba, Ltd. v. Orchard Partnership (1988), 177 Ill. App. 3d 331, 335, 532 N.E.2d 405, 407.) Subsequently, the trial court denied defendant’s motion for an order confirming the arbitration award pursuant to section 11 of the Uniform Arbitration Act. Ill. Rev. Stat. 1989, ch. 10, par. 111.

Section 11 of the Uniform Arbitration Act (Ill. Rev. Stat. 1989, ch. 10, par. 111) states that the court “shall confirm an award” unless the party opposing the award establishes one of the limited grounds for vacating the award specified in section 12(a) of the Uniform Arbitration Act (Ill. Rev. Stat. 1989, ch. 10, par. 112(a)). Section 12(a) of the Uniform Arbitration Act makes the following relevant provision:

“§12. Vacating an award, (a) Upon application of a party, the court shall vacate an award where:
(1) The award was procured by corruption, fraud, or other undue means;
(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any one of the arbitrators or misconduct prejudicing the rights of any party;
(3) The arbitrators exceeded their powers;
(4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of Section 5, as to prejudice substantially the rights of a party.” (Ill. Rev. Stat. 1989, ch. 10, par. 112(a).)

Plaintiff has failed to establish one of the aforementioned grounds as justification for vacating defendant’s award.

In addition, the record in the arbitration proceeding, the parties’ briefs on the issue of damages, the testimony of witnesses, and the reports submitted by expert witnesses gave evidence sufficient to substantiate the arbitrators’ award. We may infer that the arbitrators considered the volume of defendant’s sales and/or the profit per each unit of popcorn sold in order to determine the amount of the damage award. It is also likely that the arbitrators attempted to distinguish between appropriate overhead and fixed cost factors and those costs which were not appropriate in their final award. Defendant claimed lost profits of almost $1.7 million. The final award of the arbitrators amounted to less than one-third of this figure. The precision of the arbitrators’ monetary award, exemplified by their calculation of the rebates due plaintiff, indicates that the arbitrators carefully weighed the evidence and considered the applicable law.

It cannot be said that no reasonable and fair mind would agree with the arbitrators’ award. The trial court, therefore, committed reversible error when it failed to confirm the award in accordance with Carver and section 11 of the Uniform Arbitration Act. (Ill. Rev. Stat. 1989, ch. 10, par. Ill.) Accordingly, the arbitrators’ award to defendant should not be disturbed.

For the aforementioned reasons, we reverse the trial court’s order of January 18, 1991, and grant defendant's motion to confirm the arbitration award.

Reversed.

GREIMAN, P.J., and CERDA, J., concur.