author: JUSTICE QUETSCH

text:
    RODNEY C. ZIMMER et al., Plaintiffs-Appellants, v. THE VILLAGE OF WILLOWBROOK et al., Defendants-Appellees.
    Second District
    No. 2 — 92—0053
    Opinion filed March 12, 1993.

      John R. Wimmer, of Downers Grove, for appellants.
    Gerald M. Gorski and Kenneth R. Menzel, both of Gorski & Good, of Wheaton, Allan C. Alongi, of Hinsdale, Francis J. Leyhane, of Condon, Cook & Roche, and Timothy M. Gallager, both of Chicago, and William E. Jegen, of William E. Jegen, P.C., of Glen Ellyn, for appellees.
   JUSTICE QUETSCH

delivered the opinion of the court:

Plaintiffs, Rodney and Phyllis Zimmer (the Zimmers) and Thaddeus and Grace Olech (the Olechs), sued defendant the Village of Wil-lowbrook (WiUowbrook) for flooding damages allegedly resulting from Willowbrook’s installation and enlargement of certain culverts near plaintiffs’ property. Plaintiffs also sued defendant Cecil Allen (AUen) for flooding damages allegedly resulting from a pond, culverts and drains which Allen constructed on his property. Plaintiffs further sought a mandatory injunction requiring Allen to remove the pond, culverts and drains from his land. The trial court granted Wil-lowbrook’s motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (111. Rev. Stat. 1991, ch. 110, par. 2 — 619), finding that plaintiffs’ cause of action was time barred by section 8 — 101 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (111. Rev. Stat. 1991, ch. 85, par. 8 — 101). The trial court granted Allen’s motion for summary judgment, finding that plaintiff’s legal cause of action against Allen was time barred by section 13 — 205 of the Code of Civil Procedure (111. Rev. Stat. 1991, ch. 110, par. 13 — 205), and that laches barred plaintiffs’ claim for equitable relief. Pursuant to Supreme Court Rule 304(a), the court made an express written finding that there was no just reason to delay enforcement or appeal. (134 111. 2d R. 304(a).) Plaintiffs appeal.

The issues raised on plaintiffs’ appeal from the trial court’s granting of Willowbrook’s section 2 — 619 motion to dismiss are: (1) whether the limitations period set forth under section 8 — 101 of the Tort Immunity Act or section 13 — 214(a) of the Code of Civil Procedure (111. Rev. Stat. 1991, ch. 110, par. 13 — 214(a)) applies in the action against Willowbrook; and (2) when the applicable limitations period begins to run. The issues raised on plaintiffs’ appeal from the trial court’s granting of Allen’s motion for summary judgment are: (1) whether the limitations period set forth under section 13 — 214(a) or section 13 — 205 applies in the action against Allen; (2) when the applicable limitations period begins to run; (3) whether laches bars plaintiffs’ action seeking equitable relief from the flooding of their property; and (4) whether Allen must own property adjacent to the Olechs in order to be held liable to the Olechs for negligent trespass.

I

We first consider plaintiffs’ claim against Willowbrook. Plaintiffs filed their first complaint against Willowbrook on August 8, 1989, and their second amended complaint on January 11, 1991. Plaintiffs own properties near Bentley Avenue and 65th Street, and they allege that Willowbrook enlarged one culvert on Bentley Avenue and installed one culvert on 65th Street “to allow storm water from no less than 80 culverts and 35 sump pumps to pass water onto the Zimmer property and the property of the other plaintiffs.” Plaintiffs complained that Willowbrook’s actions unreasonably altered and increased the volume and rate of the flow of water onto plaintiffs’ land. In affidavits filed in response to Willowbrook’s section 2 — 619 motion to dismiss, the Zimmers claimed that their property was flooded in the spring of 1987, the spring of 1990, and from the beginning of 1991 until the middle of June 1991. The Olechs claimed that their property was flooded in the spring of 1987,1990, and 1991.

In its motion to dismiss, Willowbrook asserted that plaintiffs’ action was time barred by section 8 — 101. Section 8 — 101 states:

“No civil action may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued.” 111. Rev. Stat. 1991, ch. 85, par. 8 — 101.

Willowbrook argued that plaintiffs’ cause of action accrued when Willowbrook replaced the culverts in 1981. Willowbrook contended that this case was factually analogous to Firestone v. Fritz (1983), 119 Ill. App. 3d 685. In Firestone, the defendant Fritz constructed a retaining wall and placed fill on his property. Approximately 20 years later, Fritz replaced the retaining wall with a new wall. The Firestones alleged that the retaining wall and fill caused surface water to drain onto their property in unnatural quantities, destroying their garage. The court held that any cause of action accrued upon the completion of the original retaining wall. The court stated:

“Whether, in Illinois, separate causes of action accrue at each successive injury by an unnatural overflow requires a further analysis of the cause of the overflow. When a structure is placed on dominant land which unreasonably increases the flow onto the servient land, a cause of action may accrue upon the completion of the structure if it is a permanent structure which is necessarily injurious by reason of its construction. [Citation.] If, however, the structure is not apparently injurious, but may be used in a way which may or may not result in injury, the cause of action does not accrue until the use of the structure causes injury. [Citations.] The fact that flooding may be uncertain in time, duration and extent does not prevent an improvement, which displays obvious potential to cause an unnatural overflow upon completion, from constituting an immediate, permanent injury. [Citations.]” Firestone, 119 Ill. App. 3d at 687-88.

The trial court agreed that the principles set forth in Firestone governed this case and that plaintiffs’ cause of action accrued at the time the replacement culverts were installed in 1981. The court decided that the one-year limitations period of section 8 — 101 applied. Plaintiffs therefore had until 1982 to bring their cause of action. Plaintiffs did not file their action against Willowbrook until August 1989. The trial court granted Willowbrook’s motion to dismiss.

Plaintiffs argue that section 13 — 214(a) is the applicable statute of limitations. Section 13 — 214 states in relevant part:

“As used in this Section ‘person’ means any individual, any business or legal entity, or any body politic.
(a) Actions based upon tort, contract or otherwise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property shall be commenced within 4 years from the time the person bringing an action, or his or her privity, knew or should reasonably have known of such act or omission.” (111. Rev. Stat. 1991, ch. 110, par. 13 — 214(a).)

Plaintiffs contend that a question of fact exists as to when they should have reasonably known of Willowbrook’s act or omission and therefore the trial court should not have granted Willowbrook’s motion for summary judgment.

The law in Illinois is well established that where there are two statutory provisions, one general and the other specific, the particular provision prevails. (Bowes v. City of Chicago (1954), 3 Ill. 2d 175, 205.) This is especially true where the specific provision was enacted more recently. (Bowes, 3 Ill. 2d at 205.) However, in this case, neither statutory provision can be considered “general.” This court has stated that section 8 — 101 is a “special” statute which supersedes any pertinent general limitations period. (Stanley v. Denning (1970), 130 Ill. App. 2d 628, 631.) Section 13 — 214(a) has been classified as a “specific” statute of limitations. Hernon v. E.W. Corrigan Construction Co. (1992), 149 Ill. 2d 190, 196.

Therefore, in order to determine which limitations period controls, we must decide which of these two statutory provisions is more specifically applicable to this case. Section 8 — 101 provides a limitations period for civil actions commenced against a local entity. (111. Rev. Stat. 1991, ch. 85, par. 8 — 101.) Section 13 — 214(a) is a more recent statute of limitations than section 8 — 101, and it expressly applies to any “body politic” which is sued in an action based on tort for an act or omission in the construction of an improvement to real property. 111. Rev. Stat. 1991, ch. 110, par. 13 — 214(a).

The primary rule of statutory construction requires that the intention of the legislature should be ascertained and given effect. (County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 151.) Courts should first look to the language of the statute as the best indication of the intent of the drafters. (County of Du Page, 109 Ill. 2d at 151.) Courts cannot declare that the legislature did not mean what the plain language of the statute imports. County of Du Page, 109 Ill. 2d at 151-52.

Our supreme court has held that the language of section 13— 214(a) clearly and unambiguously includes bodies politic within the ambit of the statute. (County of Du Page, 109 Ill. 2d at 151.) We determine that the legislature intended for section 13 — 214(a), which was enacted after section 8 — 101, to constitute a limited exception to section 8 — 101. Thus, actions against a body politic for an act or omission in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property must be brought within the limitations period set forth under section 13 — 214(a). 111. Rev. Stat. 1991, ch. 110, par. 13 — 214(a).

To determine whether section 13 — 214(a) applies in this case, though, we must decide whether Willowbrook’s actions constituted an “improvement” to real property. An improvement is “ ‘[a] valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes.’ ” (Cross v. Ainsworth Seed Co. (1990), 199 Ill. App. 3d 910, 921, quoting Hilliard v. Lummus Co. (7th Cir. 1987), 834 F.2d 1352, 1354 n.3.) Relevant criteria for determining what constitutes an improvement include: whether the addition was meant to be permanent or temporary, whether it became an integral component of the overall system, whether the value of the property was increased, and whether the use of the property was enhanced. St. Louis v. Rockwell Graphic Systems, Inc. (1992), 153 Ill. 2d 1, 4-5.

Willowbrook argues that it merely replaced previously existing culverts and that the replacement culverts are not an improvement to real property. In support of this argument, Willowbrook cites the affidavit of Thomas Bum, the public services supervisor for Willowbrook. Bum identified three culverts in the vicinity of Bentley Avenue and 65th Street. Bum stated that Willowbrook annexed the territory including the culverts on January 12, 1981, and that the culverts were in place on that date. Bum also stated that the sole actions taken by Willowbrook were to replace the 65th Street culvert in July 1981, and the Bentley Avenue culverts in July 1990, with culverts having the same diameter, alignment and location.

However, plaintiffs submitted affidavits from Thaddeus Olech and Rodney Zimmer, both of whom observed the replacement of the 65th Street culvert and the northernmost culvert on Bentley Avenue. Both men stated that the replacement culverts appeared to have larger diameters. Plaintiffs also submitted a letter from David P. Van Vooren, Willowbrook’s then director of public services, in which Van Vooren stated that the culvert on Bentley Avenue north of 65th Street “has been enlarged to 15 inches to meet Village standards.” Plaintiffs also submitted a letter from Van Vooren in which he stated that the 65th Street culvert “could have been brought up to Village Code, 15 inch, but I am unclear on this detail.”

Whether an item constitutes an improvement to real property is a question of law. The resolution of this question, though, is grounded in fact. (St. Louis v. Rockwell Graphic Systems, Inc., 153 Ill. 2d at 3.) The record here contains no evidence as to what extent, if any, a culvert of larger diameter improves drainage. Furthermore, we are unable to determine from the record whether the replacement culverts enhanced the value, beauty, or utility of real estate or otherwise adapted it for new or further purposes. (See Cross v. Ainsworth Seed Co., 199 Ill. App. 3d at 921; St. Louis v. Rockwell Graphic Systems, Inc., 153 Ill. 2d at 4-5.) Thus, the record provides an insufficient basis for determining as a matter of law whether the culverts constitute an improvement to real property. If, on remand, plaintiffs properly establish the culverts to be an improvement, then section 13— 214(a) will apply. If plaintiffs are unable to establish that the culverts are an improvement, then the one-year limitations period of section 8 — 101 will apply.

We next examine when the applicable limitations period begins to run. Our supreme court has recently clarified when a cause of action accrues for the overflow of water onto land. (Meyers v. Kissner (1992), 149 Ill. 2d 1.) In Meyers, plaintiff’s farmland was damaged from continuing erosion aggravated by earthen levees constructed and maintained by defendants. The defendants argued that plaintiff’s damage claim was time barred by section 13 — 205. (Meyers, 149 Ill. 2d at 7.) Neither party argued the applicability of section 13 — 214(a).

Section 13 — 205 states in relevant part:

“[A]ctions *** to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.” (111. Rev. Stat. 1991, ch. 110, par. 13 — 205.)

Defendants argued that plaintiff’s cause of action accrued from the time of completion of construction of the levees.

Our supreme court recognized that appellate courts, such as this one, have generally held that when a structure is placed on dominant land which unreasonably increases the flow onto servient land, the limitations period begins to run upon the completion of the structure if it is a permanent structure which is necessarily injurious by reason of its construction. Meyers, 149 Ill. 2d at 9, citing Gass v. Metro-East Sanitary District (1989), 186 Ill. App. 3d 1077, and Firestone, 119 Ill. App. 3d 685.

The court also recognized that this law developed from cases involving construction of a drainage channel by a sanitary district. (Meyers, 149 Ill. 2d at 9.) Those sanitary districts were vested with power to keep the water of the district within the banks of the channel and to prevent flooding of adjacent land. In Meyers, though, the flow of water was not subject to such regulation.

The court decided not to analyze whether the levees were a necessarily injurious, permanent structure. Instead it held that the case fell within the law of continuing nuisance and continuing trespass and that the five-year statute of limitations merely specifies the window in time for which damages may be recovered prior to the filing of the complaint. (Meyers, 149 Ill. 2d at 11.) Therefore, plaintiff was not barred from recovering damages for the five-year period preceding the filing of the complaint. (Meyers, 149 Ill. 2d at 11.) The court felt that such a view was more workable than that which was expressed in and developed from the sanitary district cases. Meyers, 149 Ill. 2d at 11.

Thus, we need not determine whether Willowbrook’s culverts are necessarily injurious permanent structures. Rather, we hold that this case falls within the rules applicable to continuing trespass. If the trial court ultimately rules that the four-year limitations period of section 13 — 214(a) applies, then plaintiffs would not be barred from recovering damages for the four-year period preceding the filing of the complaint. Plaintiffs filed their first complaint against Willowbrook on August 8, 1989, and their second amended complaint on January 11, 1991. Therefore* plaintiffs could seek to recover damages for the flooding in 1987,1990, and later.

However, if the trial court ultimately rules that the one-year limitations period of section 8 — 101 applies, then plaintiffs could only seek recovery for flooding alleged to have occurred in the spring of 1990 and later. Since plaintiffs did not bring their suit within one year of the initial flooding in 1987, they could not seek to recover damages resulting therefrom.

II

We next consider plaintiffs’ claim against Allen. Plaintiffs filed their first complaint against Allen on August 8, 1989, and their second amended complaint on January 11, 1991. Plaintiffs complained that in 1977, Allen constructed a pond on his property and installed culverts and pipes to expel water from the pond. Plaintiffs alleged that this construction drains and diverts a concentrated flow of water onto plaintiffs’ land, altering the natural flow and unreasonably increasing the volume and rate of flow of water onto plaintiffs’ land. In response to Allen’s interrogatories, the Zimmers stated that only one culvert runs from the pond onto their property and that it was installed when the pond was constructed in 1977. For purposes of this summary judgment motion, Allen accepted plaintiffs’ contentions concerning when the pond and culvert were installed.

The trial court held that plaintiffs’ legal cause of action was barred by section 13 — 205, which provides that actions to recover damages for an injury done to property must be commenced within five years after the cause of action accrued. (111. Rev. Stat. 1991, ch. 110, par. 13 — 205.) The court ruled that plaintiffs’ cause of action accrued in 1977, when Allen built the pond, and that plaintiffs’ action should have been brought by 1982. The trial court, therefore, granted Allen’s motion for summary judgment.

Plaintiffs argue that the controlling statute of limitations is section 13 — 214(a), which provides in pertinent part that an action based on tort against a person for an act or omission in the construction of an improvement to real property must be commenced within four years from the time the plaintiff knew or should reasonably have known of such act or omission. (111. Rev. Stat. 1991, ch. 110, par. 13— 214(a).) Plaintiffs contend that a question of fact exists as to when they should have reasonably known of Allen’s act or omission. Allen argues that even under section 13 — 214(a) plaintiffs’ action is time barred because the limitations period began to run when he built his pond in 1977.

Section 13 — 214(a) is a specific statutory provision and, if applicable, takes precedence over the general limitations period of section 13 — 205. (Commonwealth Edison Co. v. Walsh Construction Co. (1988), 177 Ill. App. 3d 373, 379.) To determine whether section 13— 214(a) applies in this case, we must decide whether Allen’s construction of a pond and culvert constitutes an improvement to real property. Plaintiffs allege that Allen constructed the pond in 1977 and deepened it three years later. The pond was used to hold water. The construction of this pond and culvert was an amelioration in the condition of the property, amounting to more than mere repairs and replacement. The construction of the pond and culvert certainly cost Allen labor, and it was intended to enhance the land’s value, beauty or utility. (See Cross v. Ainsworth Seed Co., 199 Ill. App. 3d at 921; St. Louis v. Rockwell Graphic Systems, Inc., 153 Ill. 2d at 4-5.) We hold that Allen’s construction of a pond and culvert constitutes an improvement to real property and that the limitations period of section 13 — 214(a) applies.

As discussed previously with respect to Willowbrook, Meyers holds that actions involving the overflow of water are to be analyzed using the rules of continuing trespass. (Meyers, 149 Ill. 2d at 11.) Thus, the four-year limitations period set forth in section 13 — 214(a) runs from the time each overflow occurs. Plaintiffs are not barred from recovering damages for the four-year period preceding the filing of the complaint. Since plaintiffs filed their first complaint on August 8, 1989, and their second amended complaint on January 11, 1991, they can seek to recover damages for the flooding in 1987, 1990, and later.

We next consider plaintiff’s argument that the trial court erred by granting summary judgment against their request for a mandatory injunction against Allen. The trial court ruled that laches barred plaintiffs’ claim for equitable relief. In Meyers, though, oftr supreme court held that in actions seeking equitable relief from the flooding of one’s property, absent extraordinary situations, laches will not act as a bar prior to the running of the 20 years it takes to create a prescriptive right to flood the land of another. (Meyers, 149 Ill. 2d at 12.) In this case, plaintiffs’ suit was filed 12 years after Allen constructed his pond and two years after the flooding initially occurred. Thus, plaintiffs filed their suit within the 20-year time period. Whether any “extraordinary situations” exist that would allow Allen to assert the defense of laches prior to the running of the 20-year time period is a question of material fact. Therefore, the trial court erred by granting summary judgment against plaintiffs’ request for a mandatory injunction against Allen.

Finally, we reject Allen’s contention that summary judgment was properly granted against the Olechs because their property is not adjacent to Allen’s land. One can be liable under trespass for causing a thing to enter the land of another through a negligent act. (Dial v. City of O’Fallon (1980), 81 Ill. 2d 548, 556.) Allen has not cited any authority to support his argument that he must own property adjacent to the Olechs in order to be held liable under negligent trespass of waters.

Furthermore, since Allen was the party moving for summary judgment, he had the burden of establishing that there were no issues of material fact and that he was entitled to judgment as a matter of law. (Becovic v. Harris Trust & Savings Bank (1984), 128 Ill. App. 3d 107, 119.) However, questions of material fact exist as to whether Allen drains and diverts a concentrated flow of water onto the Olechs’ land, altering the natural flow, and unreasonably increasing the volume and rate of flow of water onto the Olechs’ property. Therefore, summary judgment against the Olechs is not appropriate merely because their property is not adjacent to Allen’s land.

Accordingly, the orders, of dismissal and summary judgment, of the circuit court of Du Page County are reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

WOODWARD and GEIGER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GREEN JUSTICE COOK,

license: Public Domain

text:
    CONTRACTORS’ READY-MIX, INC., Plaintiff-Appellee, v. EARL GIVEN CONSTRUCTION COMPANY, INC., et al., Defendants-Appellants.
    Fourth District
    No. 4 — 92—0282
    Opinion filed February 18, 1993.
    Modified on denial of rehearing April 14, 1993.

      COOK, J., specially concurring.

      The Leiter Group, of Peoria (William C. Connor, of counsel), for appellant Earl Given Construction Company, Inc.
    Brent H. Gwillim, of Heyl, Royster, Voelker & Allen, of Peoria (Karen L. Kendall, of counsel), for appellant First Midwest Bank.
    Mohan, Alewelt, Prillaman & Adami, of Springfield (Cheryl Stickel Neal, of counsel), for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On April 1, 1991, plaintiff Contractors’ Ready-Mix, Inc. (Ready-Mix), filed suit in the circuit court of Logan County against Earl Given Construction Company, Inc. (Given), First Midwest Bank/West-em Illinois, N.A./Lincoln, as trustee of a certain land trust (owner), Guardian Life Insurance Company of America (INA), and unknown owners and nonrecord claimants. Count I was against all defendants seeking foreclosure of a mechanic’s lien for materials furnished by Ready-Mix to Given, a general contractor on a project to erect a Wal-Mart store on premises of the owner at Lincoln. INA was alleged to be a mortgagee of those premises. Count II was solely against Given and sought a money judgment against Given for the amount unpaid for the furnishing of those materials.

Ready-Mix, the supplier of materials to Given, filed a motion for summary judgment as to both counts. The owner moved for summary judgment as to count I. On March 15, 1992, the circuit court denied the owner’s amended motion for summary judgment and entered a joint and several summary judgment in favor of Ready-Mix against both defendants as to count I providing for foreclosure upon and sale of the premises to satisfy a mechanic’s lien against the premises in the sum of $108,450.59, which included attorney fees and court costs. Section 28 of the Act requires that when a subcontractor or supplier of materials sues to foreclose a mechanic’s lien, both the owner and general contractor must be made parties and are jointly and severally liable. 111. Rev. Stat. 1989, ch. 82, par. 28.

This judgment did not rule upon count II. The court made a finding that no just reason existed to delay enforcement or appeal of the judgment upon count I. (134 111. 2d R. 304(a).) The owner and Given have appealed. We reverse the summary judgment in favor of Ready-Mix and remand for further proceedings.

A brief summary of various provisions of the Act is necessary to an understanding of the facts. Section 21 of the Act (111. Rev. Stat. 1989, ch. 82, par. 21) provides for a lien for subcontractors and suppliers of material for the unpaid amount of the value which they have furnished to the premises. That section also states that an owner shall not “be compelled to pay a greater sum for or on account of the completion of *** [an] improvement than the [contract price], unless payment be made to the contractor *** in violation of the rights and interests of the persons intended to be benefited by this [A]ct” (HI. Rev. Stat. 1989, ch. 82, par. 21). Section 32 of the Act similarly states:

“No payments to the contractor or to his order of any money or other considerations due or to become due to the contractor shall be regarded as rightfully made, as against the sub-contractor, laborer, or party furnishing labor or materials, if made by the owner without exercising and enforcing the rights and powers conferred upon him in sections 5, 21 and 22 of this act.” (111. Rev. Stat. 1989, ch. 82, par. 32.)

Section 27 of the Act provides that when an “owner or his agent is notified as provided in [the Act], he shall retain” from money to be paid the contractor enough to pay the subcontractor, supplier or worker to whom money is due. 111. Rev. Stat. 1989, ch. 82, par. 27.

Section 5 of the Act provides that before an owner makes payments to a contractor, the owner shall require the contractor to give the owner an affidavit setting forth “the names and addresses of all parties furnishing materials and labor, and of the amounts due or to become due [to] each.” (Emphasis added.) (111. Rev. Stat. 1989, ch. 82, par. 5.) Section 24 of the Act states that subcontractors, including those furnishing materials, “may at any time after making his or her contract with the contractor, and shall within 90 days after the completion thereof *** cause a written notice of his or her claim and the amount due or to become due thereunder, to be sent” in certain ways to the owner or its contractor. (Emphasis added.) (HI. Rev. Stat. 1989, ch. 82, par. 24.) We will discuss section 22 of the Act (111. Rev. Stat. 1989, ch. 82, par. 22) later.

The owner does not dispute the sufficiency of the record to support a summary judgment for Ready-Mix as long as that judgment is in the sum of $127.25 plus a reasonable amount for costs and attorney fees. The owner maintains it complied with all the pertinent statutory provisions which would absolve it of liability except that arising from a section 5 affidavit of Given in regard to amounts due to Ready-Mix which indicates $127.25 was due or would become due to Ready-Mix to complete the contract. Ready-Mix’s position is twofold. It first maintains that the owner did not take sufficient statutorily required steps to prevent its being required to pay sums over and above the contract price in the amount awarded by the trial court. Second, Ready-Mix asserts that if both parties met in full the requirements of the Act in order to protect themselves, the intent of the Act and the equities are with it. The circuit court’s decision was based on the latter contention of Ready-Mix. Given objects only to the amount of fees awarded Ready-Mix.

Summary judgment is permissible only when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show” all material elements of fact are conclusively shown to exist in favor of the party seeking summary judgment. (111. Rev. Stat. 1991, ch. 110, par. 2 — 1005(c).) The facts shown of record arise mostly from uncontested affidavits. The significant events begin with a contract being entered into between the owner and Given sometime prior to June 30, 1990, for erection of the Wal-Mart store on the owner’s premises. Given then entered into an oral contract with Ready-Mix to provide concrete materials for the project as required by Given. Given agreed to pay Ready-Mix a reasonable price, finance charges of 2% per month on all balances remaining unpaid for more than 30 days, and attorney fees or costs of collection on the account. Ready-Mix received two payments from Given of $62,888.12 and $83,465.75, respectively, for materials delivered through September 14,1990.

Ready-Mix did not receive payment of $77,102.77 for materials delivered September 14, 1990, through October 27, 1990, its last date of performance. Ready-Mix submitted monthly statements to Given indicating the amount unpaid plus finance charges. On October 25, 1990, Given served the owner with a document purporting to be a waiver of Given’s lien for $280,800 worth of work which Given had completed to that date. The lower portion of the document was an affidavit on behalf of Given, listing the sum of $127.25 as the amount due Ready-Mix. The affidavit stated “the items mentioned include all labor and material required to complete said work according to plans and specifications” (emphasis added). This affidavit met the requirements of section 5 of the Act.

Given’s section 5 affidavit also stated that the then balance on its contract with the owner was $308,800. On November 2, 1990, the owner paid Given $280,800, leaving $28,000 remaining on the total contract price. On November 22, 1990, the subject property was apparently sold, and the purchaser apparently paid Given $60,290 on November 30, 1990. An affidavit attached to the owner’s revised motion for summary judgment indicates that the $60,290 payment was intended to include the $28,000 due on the original contract for construction. On January 25, 1991, which was 90 days after Ready-Mix’s last delivery of materials to the construction site, Ready-Mix mailed its notice of mechanic’s lien to the owner as required by section 24 of the Act.

The owner does not dispute that the record shows Ready-Mix has done everything required to perfect a mechanic’s lien in substantially the amount awarded if the owner has not complied with the various statutory provisions necessary to protect it from having to pay money over and above the contract price. The owner maintains, however, that it has complied with all of those provisions except that it should have withheld $127.25 from the amount paid Given in order for that sum to be available to pay Ready-Mix. Ready-Mix disputes this contention and also maintains that even if that is so, the interests of the parties should be balanced in a way that would support the trial court’s decision. We begin our analysis by examining the owner’s compliance with the various statutory provisions.

We consider first the owner’s compliance with, section 5 of the Act. Ready-Mix points out that the lien waiver on the same form as the affidavit was headed by the words “WAIVER OF LIEN TO DATE” in large letters while the designation of the section 5 affidavit as “CONTRACTOR’S AFFIDAVIT” was in somewhat smaller letters. Ready-Mix contends the owner should have understood that the affidavit was intended to refer, in regard to Ready-Mix, only to the amount owed up to that date. Ready-Mix also points out that it furnished over 57 cubic yards of concrete to the project two days after Given executed the section 5 affidavit. We do not agree that the owner was required to make any assumptions which were contrary to the wording of the affidavit because of the wording of the lien waiver. The record does not indicate that the owner knew of the furnishing of the additional concrete when it made payment to Given a few days later.

The portion of the October 25, 1990, document, which was described as a waiver, acknowledged payment by the owner to Given of the sum of $280,800 which, according to the undisputed record, left the sum of $28,000 of the contract price remaining to be paid. The record shows that the $280,800 payment was actually made on November 2, 1990. The jinal payment of $28,000 was made by the owner to Given on November 30, 1990. Ready-Mix makes no contention that the owner was required to obtain an additional section 5 affidavit before making the $28,000 payment. Where, as here, a prior section 5 affidavit of the contractor had stated that “the items mentioned [in that affidavit] include all labor and material required to complete said work," no further section 5 affidavit was required to justify payment by the owner to the contractor. (Emphasis added.) See Berkshire Warehouse Co. v. Hilger & Co. (1915), 268 Ill. 463, 469, 109 N.E. 287, 289; Sanaghan v. Lawndale National Bank (1967), 90 Ill. App. 2d 254, 259, 232 N.E.2d 546, 549.

We hold that, except for the owner’s failure to withhold $127.25 from the sum which it paid Given on November 2, 1990, the owner complied with the requirements of section 5 of the Act when the owner obtained Given’s section 5 affidavit on October 25, 1990, and then paid Given $280,800 on November 2,1990.

Ready-Mix makes no contention that section 21 of the Act is, of itself, dispositive of its claim. It points out that section 21 does state that payment by owners to general contractors made in violation of section 5 or 24 of the Act are wrongfully made. Suggestion has been made that one of the powers which the owner had under sections 5 and 21 of the Act, which section 32 of the Act required the owner to exercise before making payment to Given, was to require lien waivers from Ready-Mix. If this was done, Ready-Mix would likely have required the owner to hold back sufficient money to protect its claim before executing the waiver. However, the only reference in section 21 of the Act to lien waivers concerns the use of lien waivers in regard to improvement to the owner-occupied residence lived in by a single family.

Ready-Mix does contend that section 22 of the Act directly supports its position. It relies upon the portion of section 22 which states as follows:

“When the contractor shall sub-let his contract or a specific portion thereof to a sub-contractor, the party furnishing material to or performing labor for such sub-contractor shall have a lien therefor; and may enforce his lien in the same manner as is herein provided for the enforcement of liens by sub-contractors. Any sub-contractor shall, as often as requested in writing by the owner, or contractor, or the agent of either, make out and give to such owner, contractor or agent, a statement of the persons furnishing material and labor, giving their names and how much, if anything, is due or to become due to each of them, and which statement shall be made under oath if required.” (Emphasis added.) 111. Rev. Stat. 1989, ch. 82, par. 22.

Ready-Mix points out that section 32 of the Act requires owners to exercise their rights under section 22 before making payments to contractors in order to make those payments properly. Ready-Mix maintains that the previously recited provision from section 22 authorized the owner to require Ready-Mix to give it a statement of the amount owed Ready-Mix by Given. This contention does not properly interpret the language of section 22. That section concerns the liens of those furnishing labor and materials to subcontractors. Here, Ready-Mix was furnishing materials for the general contractor, Given. The request which section 22 permits owners to make of the contractors, subcontractors and suppliers of material concerns the amount owed by those entities to their suppliers and sub-subcontractors and not the amount owed by the general contractor to those entities. The purpose of section 22 is to give those furnishing labor and materials to subcontractors the same protection that subcontractors and those furnishing materials directly to the general contractor have under section 5 of the Act.

The other specific section of the Act upon which Ready-Mix relies directly is section 24. As we have indicated, it states that one furnishing labor or materials to a contractor “may at any time after making [a] contract with the contractor, and shall within 90 days after the completion thereof” give a notice, in a manner described therein, to the owner as to the amount due or to become due thereunder and to whom it is due. (Emphasis added.) (111. Rev. Stat. 1989, ch. 82, par. 24.) Section 27 of the Act then requires an owner receiving such a notice to “retain from any money due or to become due the contractor” amounts sufficient to pay the amounts due to those furnishing labor or materials. (111. Rev. Stat. 1989, ch. 82, par. 27.) Ready-Mix seemingly asserts that by giving the owner section 24 notice on January 29, 1991, at the last part of the 90-day period, this notice rendered the owner’s previous payments to Given on November 2,1990, wrongful.

Ready-Mix’s theory of the effect of a section 24 notice given any time before the end of the 90-day period is not supported by any precedent and was rejected in Sanaghan, where the court stated:

“If security in the payment could not be obtained until the expiration of the 60-day period [the then-existing statutory provision], it is difficult to see how the financing of such construction could be had. It is common knowledge that the construction industry operates on credit, and this was understood by those who prepared and enacted the Mechanics’ Lien Act.” (Sanaghan, 90 Ill. App. 2d at 262, 232 N.E.2d at 551.)

We agree with the logic of Sanaghan and its interpretation of the operation of section 24. Ready-Mix relies upon McCann Construc tion Specialties Co. v. Alan Construction Co. (1973), 12 Ill. App. 3d 206, 298 N.E.2d 222. Some language there would seem friendly to the theory that a material supplier or subcontractor can preserve a lien by a timely section 24 statement, even though the owner has made prior payment to the contractor based upon a faulty section 5 affidavit. However, in McCann the lien was sought only to the extent of sums which were being retained by the owner.

The Sanaghan interpretation of section 24 of the Act is consistent with provisions of sections 21 and 27 of the Act. Section 21 lists as a circumstance where an owner’s payment to the contractor is wrongful, the situation where a section 24 notice is given showing sums due and “thereafter” subcontracting work is done or material furnished for sums set forth in the notice and payment is made to the contractor. Section 27 of the Act requires an owner to retain money due a contractor to the extent he or she is “notified as provided in [the Act].” (Emphasis added.) 111. Rev. Stat. 1989, ch. 82, par. 27.

We hold that Ready-Mix’s section 24 notice to the owners did not render wrongful payments made by the owner to Given prior to the owner’s receipt of that notice. Ready-Mix maintains that the owner had actual notice of amounts owed by Given to Ready-Mix well before the section 24 notice was given. This arises from an affidavit furnished by Ready-Mix concerning information furnished to Jeff Eirenberg, purportedly an agent of the owner. However, nothing in the affidavit indicates Eirenberg was contacted until January 4, 1991, which was more than a month after the owner’s last payment on the contract price.

In rendering its decision the circuit court stated:

“Under the special set of circumstances presented here, this Court is drawn to the conclusion that Plaintiff’s claim for judgment is more meritorious. Did the owner use ‘reasonable precautions’? Did the owner have notice ‘from any source’? In whose favor should the balance of hardships lie? This Court does not believe [the] owner used reasonable precautions. [The] owner knew from prior payments that Plaintiff was a major sub-contractor. That would seem to obviate the argument that Plaintiff could have served some sort of written notice at anytime after the Plaintiff became involved in the project. This Court believes [the] [o]wner had notice as well from an unpaid balance listed on the 10 — 25—90 Section 5 Affidavit. This Court is of the opinion that, on a project of this size, it would have been prudent for [the] owner to exercise its rights under Section 22 to request a lien waiver from this major subcontractor; notice and knowledge of its existence can certainly be imputed to the owner. Therefore, under Plaintiff’s theory, the alleged final payment was not ‘rightfully made’ pursuant to Section 32. Further, reading the various sections as applied to the unique circumstances involved here, and considering the conflicting policy statements re[:] owners, contractors and subs, the balance of the hardships is tipped here in favor of the Plaintiff. Again, this Court believes, under these circumstances, that it was unreasonable for [the] owner to rely solely on the 10 — 25—90 Section 5 Affidavit.”

We do not agree with the portion of the circuit court’s analysis which indicates that section 22 of the Act authorizes an owner to require a lien waiver from any party. As we have indicated, we conclude that section 22 does not even authorize an owner to require a statement from a material supplier of the amount owed it by the contractor. Nevertheless, we recognize a well-established practice whereby prudent owners and contractors often demand lien waivers to support their payments to persons entitled to them. In any event, we deem the court’s analysis is a very conscientious attempt to be fair to the parties by some sort of balancing of the equities. Ready-Mix urges us to uphold this determination.

In maintaining that the circuit court properly balanced the interests of the parties here, Ready-Mix relies upon general language in First Federal Savings & Loan Association v. Connelly (1983), 97 Ill. 2d 242, 454 N.E.2d 314. In that case, the supreme court upheld against the mortgagee of four apartment buildings the mechanic’s lien claim of one who had furnished carpentry in all four apartment buildings. The issue presented was whether the lien claimant’s claim met the requirements of section 7 of the Act (see 111. Rev. Stat. 1979, ch. 82, par. 7) when a single claim was filed for the four properties. In holding that a requirement that separate claims should have been filed was unreasonable, the court stated:

“Once the contractor has complied with the statutory prerequisites, however, the Mechanics’ Liens Act should be liberally construed in order to carry out its remedial purpose. (111. Rev. Stat. 1979, ch. 82, par. 39.) This court has recognized that the purpose of the Act ‘is to permit a lien upon premises where a benefit has been received by the owner and where the value or condition of the property has been increased or improved by reason of the furnishing of labor and materials.’ Colp v. First Baptist Church (1930), 341 Ill. 73, 76-77[, 173 N.E. 67, 68].” Connelly, 97 Ill. 2d at 246, 454 N.E.2d at.316.

Ready-Mix maintains the owner had actual notice of Given’s substituted debt for material furnished for the premises when the owner made final payments to Given. We have determined the record does not establish this. The circuit court correctly pointed out that the owner could have been more prudent in making its payments but we do not deem that significant. Here, unlike in Connelly and Colp v. First Baptist Church (1930), 341 Ill. 73, 173 N.E. 67, the issue is to determine the rights between an owner and a supplier to the contractor, both of whom have complied with statutory requirements. Section 21 provides that an owner shall not be required to pay more than the contract price when it does not make wrongful payments to the contractor. No similar provision of the Act says that the subcontractor or supplier who follows the Act is necessarily entitled to a lien. Rather, section 21 of the Act states that the rights of the subcontractor and supplier are subject to the provisions of section 5 of the Act.

Accordingly, we hold that despite general language in Connelly and Colp and, no doubt, in other cases, where both an owner and a subcontractor or supplier to the general contractor have both followed statutory requirements, the owner is protected against a lien for amounts unpaid by the contractor to the subcontractor or supplier. Where, as here, the owner has made some wrongful payments, the subcontractor or supplier is entitled to a mechanic’s lien to the extent of those payments. Here, the owner wrongfully paid out the sum of $127.25 and Ready-Mix is entitled to a mechanic’s lien but only to that extent.

Given directs most of its argument to upholding the lien awarded Ready-Mix. However, it asks reversal of the judgment to the extent of the amount of attorney fees awarded. It contends a portion of the fees were awarded for Ready-Mix’s defense of a separate case between it and Given. Whatever the rights of Ready-Mix are for attorney fees between itself and Given in regard to other litigation, no matter how related to that here, we do not deem this fee to be one which can be properly added to a claim against the owner for a mechanic’s lien. Given also complains about the hearsay nature of an affidavit in support of its fee. As the case must be remanded for further proceedings, we need not decide this question.

Accordingly, we reverse the summary judgment in favor of Ready-Mix and remand for further proceedings. We could reduce the judgment to the sum of $127.25 together with attorney fees and costs and then order foreclosure and sale but Ready-Mix correctly points out that this would be unfair to it. Such a ruling would be nearly the same as a summary judgment for owner, which was refused by the circuit court.

Reversed and remanded.

STEIGMANN, P.J., concurs.

JUSTICE COOK,

specially concurring:

I agree with the decision to affirm in part, reverse in part, and remand with instructions, and basically agree with what is said in the majority opinion.

The Act attempts to balance rights and duties of owners, subcontractors (materialmen), and others. On some projects the parties are careful to fully exercise their rights under the Act; on other projects they are not. The Act seeks a fair result in each case. Losses are not always placed on owners, nor are they always placed on subcontractors. There are steps which an owner may take under the Act to protect itself, but an owner is not required to avail itself of every protection the Act affords. The same is true for subcontractors. The Act provides a minimal level of protection in those cases where neither the owner nor the subcontractor takes advantage of the discretionary protections available.

On the last day possible, 90 days after it made its final delivery of materials in this case, Ready-Mix mailed its notice of mechanic’s lien to the owner, then recorded its claim of lien. A subcontractor may give the owner written notice of its claim (and thereby protect itself against subsequent disbursements) any time after the subcontractor enters into its contract with the general contractor, but no later than 90 days after the subcontractor’s completion of the contract. (DI. Rev. Stat. 1989, ch. 82, par. 24.) Once the subcontractor’s notice is timely given, the owner must retain “from any money due or to become due the contractor” an amount sufficient to pay the subcontractor. Payments made after the notice without retaining sufficient money to pay the subcontractor are illegal. (111. Rev. Stat. 1989, ch. 82, par. 27.) Still, even if the subcontractor never gives notice to the owner, it is the owner’s duty, before making any payments, to require the general contractor to provide a written statement listing the subcontractors and amounts due or to become due each. (111. Rev. Stat. 1989, ch. 82, pars. 5, 21.) The owner must then ensure that the subcontractors listed are paid the amounts shown; the owner is protected against subcontractors not listed or amounts understated unless those omissions are with the knowledge or collusion of the owner. 111. Rev. Stat. 1989, ch. 82, par. 27.

Ready-Mix could have prevented any loss here by giving a subcontractor’s notice to the owner before making any deliveries. Ready-Mix was not required to give that notice, however, and could still claim its rights under sections 5 and 21, relying on the general contractor to disclose the amounts due it. The owner perhaps could have prevented loss by demanding final lien waivers, but had no affirmative duty to do so. In the absence of prior notice by the subcontractor, the owner’s only duty was the duty imposed by sections 5 and 21: to require a written statement by the contractor, and to ensure the amounts listed were paid. The owner complied with that duty here, except to the extent of $127.25. Both the owner and Ready-Mix could have done more, but it is Ready-Mix which is seeking relief, which is asking that the owner pay twice. The Act provides no justification for shifting the loss from Ready-Mix to the owner in this case.

The argument could be made that section 32 of the Act requires an owner to always insist on lien waivers. That section provides that no payments shall be regarded as rightfully made “if made by the owner without exercising and enforcing the rights and powers conferred upon him in sections 5, 21 and 22 of this act.” (111. Rev. Stat. 1989, ch. 82, par. 32.) The problem with that argument is that sections 5 and 21 simply mention lien waivers, apparently in connection with work on an existing owner-occupied single-family residence (not the situation here), and do not give the owner any particular right or power to use them. The Act does not define lien waivers, or explain their effect. The term “final lien waiver” is not used in the Act. An owner might avoid problems by making the general contractor and subcontractors joint payees on the owner’s payment checks, or by using some type of escrow, but those rights or powers again are not “conferred” by the Act. If section 32 were read to impose on owners a duty to require lien waivers every time a payment is made, the Act would no longer balance rights and duties between owners and subcontractors, but would place all burdens on owners who failed to obtain lien waivers. Section 24, dealing with subcontractors’ notices, would become meaningless — a subcontractor would be protected irrespective of whether it sent its notice before the owner made payment. Compliance with sections 5 and 21 would likewise provide no protection for the owner.


author: JUSTICE SLATER

text:
    ROCK ISLAND COUNTY, as Trustee, et al., Plaintiffs-Appellees, v. RICHARD BOALBEY, Defendant-Appellant.
    Third District
    No. 3 — 92—0370
    Opinion filed March 19, 1993.
    Rehearing denied April 14, 1993.
    Richard M. Boalbey, of Rock Island, appellant pro se.

    Dennis Faust, Assistant State’s Attorney, of Rock Island, for appellee Rock Island County.
    Stephen P. Schrimpf, of Edwardsville, for appellee Lester Carlson.
   JUSTICE SLATER

delivered the opinion of the court:

The plaintiffs, Rock Island County, as trustee, and Lester Carlson, filed a petition for tax deed to the property of the defendant, Richard Boalbey, to recover delinquent taxes for 1987 and prior years. It further appears from the brief record before this court that the defendant thereafter filed a number of motions which challenged the plaintiffs’ action on several grounds. The trial court ultimately granted the plaintiffs’ petition and denied the defendant’s various motions. The defendant appeals.

On appeal, the pro se defendant raises several arguments, among them that the circuit court lacked jurisdiction; that he was denied his right to a jury trial; that the trial court’s decision was arbitrary and violated the “principles of constitutionalism”; and that the property tax violates the fifth and fourteenth amendments to the United States Constitution and several sections of article 1 of the Illinois Constitution. He further argues that the manner in which tax dollars are applied violates the United States and Illinois Constitutions; that Rock Island has an unconstitutional form of government which therefore has no taxing power; and that section 216 of the Revenue Act (111. Rev. Stat. 1991, ch. 120, par. 697) titled “Liens of Taxes” violates the “takings” clauses of the United States and Illinois Constitutions. Finally, the defendant argues that sections 253 and 272a of the Revenue Act (111. Rev. Stat. 1991, ch. 120, pars. 734, 753a) are unconstitutional as applied to him, and that section 245 of the Revenue Act (111. Rev. Stat. 1991, ch. 120, par. 726) is vague or, alternatively, that the “amount of the penalty (interest) is in violation of section [245].”

In his statement of facts, the defendant merely notes what he apparently argued before the trial court without any citation to the record. Additionally, the record on appeal consists of only the common law record. In the argument portion of his brief, the defendant makes conclusory statements without citation to authority or references to the record. Following the argument portion, the defendant concludes his brief with a list of general citations to authorities which he does not relate back to his argument. We find that the defendant’s brief and the record on appeal are inadequate to review any of the defendant’s contentions.

While pro se litigants are held to a lesser standard in complying with the rules for appealing to the appellate court, there is a minimum which even they must meet before the appellate court can adequately review the lower court’s decision. For example, the burden is on the appellant to provide a record of the trial court proceedings sufficient for reviewing the issues raised on appeal. (Davis v. Allstate Insurance Co. (1986), 147 Ill. App. 3d 581, 498 N.E.2d 246.) In the absence of an adequate record, it is presumed that the trial court’s judgment conformed with the law and had a sufficient factual basis. Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958.

Here, the defendant has only filed the common law record with this court. He has failed to file a report of proceedings or bystander’s report pursuant to Supreme Court Rule 323 (134 Ill. 2d R. 323). Thus, the record does not reflect what evidence the trial court heard concerning the plaintiffs’ and defendant’s contentions. In the absence of such a record, we must presume the trial court had ample grounds supporting its determination.

We further note that the defendant’s brief fails to comply with the rules for appellate briefs set forth in Supreme Court Rule 341 (134 Ill. 2d R. 341).

Rule 341(e) sets forth a basic outline for an appellant’s brief. The defendant’s brief meets few of these criteria. Most notably, his brief does not comply with subparagraph (6), which concerns the statement of facts, and subparagraph (7), which concerns the structure of the argument portion of the brief. In sum, we find that the brief submitted by the defendant fails to articulate an organized and cohesive legal argument for this court’s consideration. See 47th & State Currency Exchange, Inc. v. B. Coleman Corp. (1977), 56 Ill. App. 3d 229, 371 N.E.2d 294.

Accordingly, the judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

McCUSKEY, P.J., andBRESLIN, J., concur.


author: JUSTICE STOUDER

text:
    WILLIAM McNEIL, Plaintiff-Appellant, v. ARTHUR BREWER, Defendant-Appellee.
    Third District
    No. 3 — 92—0595
    Opinion filed March 19, 1993.

      William McNeil, of Joliet, appellant pro se.

    Roland W. Burris, Attorney General, of Springfield (Daniel N. Malato, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The pro se plaintiff, William McNeil, filed a medical malpractice suit against the defendant, Dr. Arthur Brewer. McNeil is an inmate at the Stateville Correctional Center and Dr. Brewer is the medical director of the facility. The trial court dismissed McNeil’s complaint “for want of prosecution for plaintiff’s failure to appear.” McNeil appeals. We reverse and remand the cause for further proceedings consistent with this opinion.

The record shows that McNeil’s complaint alleged that Dr. Brewer authorized and conducted infectious disease research and experiments through which McNeil contracted the hepatitis virus. The record also reveals that McNeil filed a “legal demand for court appearance” requesting that he be allowed to appear at a status call scheduled for July 24,1992.

This request was not ruled on by the trial court, and on July 24, 1992, the court issued an order dismissing McNeil’s medical malpractice claim. The court did not rule on the merits of McNeil’s claim. Instead, it dismissed the claim because of McNeil’s failure to appear.

On appeal, McNeil argues that the trial court erred in dismissing his claim. Specifically, he contends that the court was aware that he was a prisoner who could not be present at the status call unless the court provided for his appearance.

The dismissal of an action for want of prosecution is within the sound discretion of the trial court and should not be disturbed unless there has been an abuse of that discretion. However, it is error to dismiss where a satisfactory explanation of the delay has been given and there has been no intentional or willful disregard of any directions of the court. In re Marriage of Dague (1985), 136 Ill. App. 3d 297, 483 N.E.2d 322.

In the case at hand, the Attorney General’s office concedes that the appropriate disposition of this case may be to remand for further consideration of McNeil’s claim. We find that remand is appropriate. Here, McNeil was incarcerated at the time of the status call and he had requested to be allowed to appear on that date. As such, the record clearly shows that McNeil had a satisfactory explanation for his failure to prosecute.

Although it concedes that perhaps the cause should be remanded, the Attorney General’s office nonetheless argues in the alternative that this court should affirm the trial court’s decision. Specifically, the Attorney General contends that the trial court could have dismissed McNeil’s complaint for his failure to comply with section 2 — 622 of the Code of Civil Procedure (735 ILCS 5/2-622 (West 1992)).

We note that it is the duty of the trial court to determine whether the pleadings comply with the statute. We also note that noncompliance with the section in question does not automatically require the trial court to dismiss the claim with prejudice. The court is given discretion to dismiss based on the circumstances and facts of each case. See Wasielewski v. Gilligan (1989), 189 Ill. App. 3d 945, 546 N.E.2d 15.

Therefore, since this issue involves questions of fact for the trial court to decide, we decline to address the merits of the issue.

Accordingly, the judgment of the- circuit court of Will County is reversed and the cause remanded for further proceedings consistent with this decision.

Reversed and remanded.

SLATER and BRESLIN, JJ., concur.


author: PRESIDING JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MAURICE BROWN, Defendant-Appellant.
    Third District
    No. 3 — 92—0608
    Opinion filed March 19, 1993.

      Thomas A. Karalis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Judith Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Maurice Brown, pled guilty to unlawful possession of less than 15 grams of a substance containing cocaine (720 ILCS 570/402(c) (West 1992)). The trial court imposed a six-year term of imprisonment, a $225 street value fine, a $500 statutorily required assessment, a $50 crime lab fee, and a $131.34 public defender fee. Brown appeals.

On appeal, Brown raises two issues. First, he contends the trial court erred in concluding that his statutory $5-per-day credit for pretrial incarceration could not be used to offset the mandatory $500 assessment. Second, Brown contends the $225 street value fine was excessive.

We begin by noting that the $500 assessment was imposed pursuant to section 411.2 of the Illinois Controlled Substances Act (720 ILCS 570/411.2 (West 1992)). Section 411.2 does not specifically state that assessments cannot be offset by the general $5-per-day credit against fines provided for in section 110 — 14 of the Code of Criminal Procedure of 1963. (See 725 ILCS 5/110 — 14 (West 1992).) Had the legislature clearly intended to exclude section 411.2 from such credits, the legislature could have specifically made such an exclusion. (See, e.g., 725 ILCS 240/10(c) (West 1992).) Therefore, we conclude that Brown’s $5-per-day credit for pretrial incarceration which is allowed by section 110 — 14 should have been used to offset his $500 assessment.

Turning our attention to Brown’s contention that the $225 street value fine was excessive, we note Brown failed to raise this objection at either his sentencing hearing or in his motion to reconsider sentence. Since no objection to the amount of the street value fine was brought to the trial court’s attention, we deem this issue waived. See People v. Schaefer (1989), 188 Ill. App. 3d 317, 543 N.E.2d 894.

Accordingly, the judgment is modified so that the $725 owed by the defendant for his $500 assessment and $225 street value fine is offset by the $685 credit resulting from his 137 days of pretrial incarceration. The remainder of the judgment of the circuit court of Will County is affirmed.

Affirmed in part; reversed in part.

SLATER and LYTTON, JJ., concur.


text:
    THE PEOPLE ex rel. EDWARD A. BURMILA, JR., State’s Attorney of Will County, Petitioner-Appellant, v. NINE HUNDRED SIX DOLLARS IN UNITED STATES CURRENCY et al., Respondent-Appellee.
    Third District
    No. 3 —92—0233
    Opinion filed March 23, 1993.

      Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Kenneth A. Grnacek, of Kalian & Grnacek, of Joliet, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The State filed a petition seeking the forfeiture of $906 in United States currency. The trial court denied the petition. The State appeals.

The record reveals the forfeiture petition alleged that the $906 was seized by law enforcement officers after they had negotiated the exchange of the money for cannabis. In his answer, the respondent, Thomas Parsons, alleged, inter alia, that the $906 was not subject to forfeiture because he had not committed a felony. He noted that he had only been charged with and pled guilty to the Class A misdemeanor of attempted possession of cannabis with intent to deliver. 111. Rev. Stat. 1991, ch. 56V2, par. 705(b); ch. 38, par. 8 — 4.

At the hearing on the forfeiture petition, the State argued that the money was forfeitable because the respondent intended to exchange it for cannabis. (111. Rev. Stat. 1991, ch. 561k, par. 705(b).) The respondent countered that under section 12(a)(5) of the Cannabis Control Act, a felony violation was required for the money to be forfeit-able. (111. Rev. Stat. 1991, ch. h&k, par. 712(a)(5).) The trial court dismissed the State’s petition, concluding that section 12(a)(5) was intended to apply only to felonies.

On appeal, the State contends that the trial court erred in dismissing the forfeiture petition. The State argues that the trial court erroneously concluded that the forfeiture statute required a felony conviction as a prerequisite to the entry of an order of forfeiture.

Section 12(a)(5) of the Cannabis Control Act provides for the forfeiture of:

“(5) everything of value furnished or intended to be furnished by any person in exchange for a substance in violation of this Act, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used, or intended to be used, to commit or in any manner to facilitate any felony violation of this Act.” 111. Rev. Stat. 1991, ch. BGVb, par. 712(a)(5).

A close reading of the plain language of this statute reveals that there are two main groups of forfeitable materials. The first group consists of those things of value which were to be exchanged for an illegal substance. The second group consists of those monetary items which are used to commit or facilitate a felony.

Section 12(a)(5) provides that property intended to be exchanged for cannabis is forfeitable, regardless of whether it was part of a felony transaction. However, property which merely facilitated an offense may be seized only if the offense constituted a felony violation of the Cannabis Control Act. See 111. Rev. Stat. 1991, ch. SG1/^, pars. 712(aX3), (a)(4), (a)(5).

In the instant case the $906 was forfeitable since it was intended to be exchanged for cannabis. Accordingly, the trial court erred in requiring a felony violation.

The judgment of the circuit court of Will County is reversed.

Reversed.

McCUSKEY, P.J., and BARRY, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTIN AGUIRRE, Defendant-Appellant.
    Third District
    No. 3 —92—0040
    Opinion filed March 19, 1993.

      Scott R. Guido, of Gary L. Gearhart & Associates, of La Salle, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet, and Joan M. Kripke, of Chicago (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Following a jury trial, defendant Martin Aguirre was convicted of two counts of unlawful delivery of a controlled substance (111. Rev. Stat. 1991, ch. 56x/2, par. 1401) and sentenced to two concurrent terms of 10 and 8 years in prison. On appeal defendant argues that: (1) he was denied a fair trial due to the State’s improper use of peremptory challenges during jury selection; (2) the trial court erred in instructing the jury on the theory of accountability; (3) he was entrapped into committing the charged offenses; and (4) he was not proven guilty beyond a reasonable doubt. We affirm.

Count I of the indictment charged that on March 18, 1991, the defendant and Alfredo Diaz delivered more than 15 but less than 100 grams of a substance containing cocaine. Count II alleged that on March 8, 1991, defendant and Alfredo Diaz delivered more than 1 but less than 15 grams of a substance containing cocaine.

At the close of voir dire, defense counsel made a motion to discharge the jury, claiming that the State had used peremptory challenges to exclude two Hispanic members of the venire on the basis of their race. (See Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.) Following a hearing, the court denied the motion.

At trial, Special Agent William Fuentes testified that in March of 1991, he was working as an undercover narcotics agent for the Illinois State Police. He became acquainted with defendant and Alfredo Diaz through an informant. Fuentes stated that he first saw defendant on March 4 when he purchased cocaine from Diaz. On March 8, Fuentes called the residence of the defendant and Diaz in order to arrange another cocaine purchase. When defendant answered the phone, Fuentes said that he was a friend of Diaz and asked defendant if he could purchase an “eight ball” (one-eighth of an ounce) of cocaine. Defendant told Fuentes that he could purchase an “eight ball” for $250. Fuentes and defendant agreed to meet at 7 p.m. that evening to complete the transaction at a location designated by defendant.

At approximately 7 p.m., Fuentes arrived at the prearranged location in his undercover vehicle. He saw defendant and Diaz in a blue Honda automobile. Defendant and Diaz then entered Fuentes’ vehicle. Diaz sat in the front passenger seat, and the defendant sat in the backseat. Diaz handed Fuentes a plastic bag containing a white powdery substance. Fuentes then took $250 from his pocket. Defendant took the money and handed it to Diaz. Fuentes then asked what the price would be for one ounce of cocaine, and defendant told him that the price would be $1,300 per ounce, decreasing to $1,200 if Fuentes bought 10 ounces. Fuentes said that he wanted to buy 10 ounces, and defendant said he would need 7 to 10 days to acquire that amount.

At approximately 2 p.m. on March 18, Fuentes called the defendant’s residence and spoke with defendant. Fuentes asked if he could purchase five ounces on the 18th, and another five on another date. Defendant told Fuentes that he only had three ounces to sell. Fuentes and defendant agreed to meet at 7 p.m. that evening to complete the transaction. Defendant suggested they meet in a Wendy’s parking lot.

That evening, Fuentes met the defendant and Diaz in the Wendy’s parking lot. Defendant and Diaz got into Fuentes’ car. Diaz then handed Fuentes a dark plastic bag containing three small bags. Each of the small bags contained a white powdery substance. Fuentes asked about the quality of the cocaine, and defendant replied that it was good. Defendant told Fuentes that the price for the cocaine was $3,900. Fuentes then gave a signal and a surveillance team of police officers approached and arrested defendant and Diaz.

The testimony of members of the surveillance teams established that defendant and Diaz entered Fuentes’ vehicle during the two transactions, but the surveillance officers were unable to see what transpired inside the car. The State presented evidence to establish that the bags given to Fuentes contained cocaine.

Defendant testified on his own behalf. He admitted that he spoke to Fuentes on the phone on March 8 and March 18 and that he was present during the two transactions. Defendant stated that Diaz was the one selling the cocaine and that he (defendant) was merely acting as a translator for Diaz. He testified that the only reason he spoke to Fuentes on the phone was because Diaz did not speak English. His only involvement was as an interpreter. He stated that he had never sold drugs and that he did not receive any compensation for translating for Diaz.

We first address defendant’s contention that the trial court erred in denying his Batson motion. During voir dire, the State exercised two peremptory challenges to dismiss Joseph Alvarez and Fernando Acosta. Defendant contends that the State failed to articulate legitimate race-neutral explanations for the removal of these two Hispanic members of the venire.

Batson established a three-step analysis to determine whether or not the State used its peremptory challenges to remove prospective jurors on the basis of race. (Batson v. Kentucky (1986), 476 U.S. 79, 97, 90 L. Ed. 2d 69, 88, 106 S. Ct. 1712, 1723.) First, the defendant must establish a prima facie showing of discrimination. Second, if the defendant made the requisite showing, the burden shifts to the State to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court then “will have the duty to determine if the defendant has established purposeful discrimination.” Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88-89,106 S. Ct. at 1724.

At the hearing on defendant’s motion, the court determined that defendant had established a prima facie showing of discrimination and asked the prosecutor to provide reasons for excluding Mr. Alvarez and Mr. Acosta. The State’s Attorney gave the following explanation regarding Mr. Alvarez:

“What the reason [sic] I exercised my peremptory challenge against this guy was because, your Honor, I felt that I had seen him as a witness or friend of a witness in another case approximately — I don’t even know what case it was.
But before I came [sic] the narcotics chief, I was involved in a lot of gang crimes and lot of gang activity. And my feeling was that I recognized this person from another time, but I wasn’t sure when.”

The prosecutor explained her challenge of Mr. Acosta as follows:

“The most important thing that I remember about Mr. Acosta, and why I exercised my peremptory challenge is because of the way he answered questions.
He either said yes or no, he didn’t offer any type of explanation as to anything. He was very tight lipped. It was my impression, your Honor, that he was not happy or excited or interested in the proceedings at all. And I got that from his demeanor in the way he acted in the courtroom. He gave short, crisp, sharp answers.
I thought he was the type — and he acted like he was not happy to be there. And I thought that since the State is the one that brings a person to court to serve on a jury, that he might hold some type of hostility toward the State. I remember him sitting back, chewing his gum and not a happy person. He seemed a mean individual to me, and that is why I excused him.”

The trial court found the prosecutor’s reasons to be race-neutral and denied the defendant’s motion to discharge the jury.

The State makes a number of arguments in response to defendant’s Batson claim. We agree with the State’s contention that it was not against the manifest weight of the evidence for the trial court to find the prosecutor’s reasons for exclusion to be race-neutral.

Initially, we note that a prosecutor’s explanation of the use of a peremptory challenge must be clear, legitimate, and race-neutral. (Batson, 476 U.S. at 97-98, 90 L. Ed. 2d at 88-89, 106 S. Ct. at 1723-24.) However, the explanation need not rise to the level that justifies a challenge for cause. (People v. Baisten (1990), 203 Ill. App. 3d 64, 560 N.E.2d 1060.) “Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” (Hernandez v. New York (1991), 500 U.S. 352, 360, 114 L. Ed. 2d 395, 406, IllS. Ct. 1859, 1866.) The trial judge has a twofold responsibility concerning the explanations of the prosecutor: to assess the genuineness of the prosecutor’s assertions and to determine whether those assertions are indeed legitimate and race-neutral. (People v. Mack (1989), 128 Ill. 2d 231, 238-39, 538 N.E.2d 1107, 1111.) Whether the State has met its burden is a question of fact, turning largely on the credibility of the prosecutor. (Hernandez, 500 U.S. at 365, 114 L. Ed. 2d at 409, 111 S. Ct. at 1869.) The trial judge’s determination is therefore entitled to great deference and will not be disturbed on review unless it is against the manifest weight of the evidence. People v. McDonald (1988), 125 Ill. 2d 182, 530 N.E.2d 1351.

The prosecutor stated that she excluded Mr. Alvarez because she recognized him from an earlier case which possibly involved gang activity. This explanation, if true, was certainly a legitimate and race-neutral reason for exercising a peremptory challenge. The trial judge was in the best position to assess the genuineness of the prosecutor’s assertions, and we will not disturb his findings. See People v. Buford (1992), 235 Ill. App. 3d 393, 601 N.E.2d 1099.

The prosecutor excluded Mr. Acosta because he was “tight-lipped” and seemed “uninterested” in the proceedings. Courts reviewing Batson claims have repeatedly approved the exercise of peremptory challenges on the basis of an individual’s courtroom conduct or demeanor. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453; People v. Mack (1989), 128 Ill. 2d 231, 538 N.E.2d 1107; People v. Lovelady (1991), 221 Ill. App. 3d 829, 582 N.E.2d 1217.) Our supreme court has held that demeanor “has anciently been regarded as being of significance. The demeanor of a prospective juror has traditionally been a factor of importance in jury selection.” (Young, 128 Ill. 2d at 20, 538 N.E.2d at 457.) A peremptory challenge was held to be legitimate where the prosecutor stated that he “was not too happy with [the venireperson’s] demeanor and how he answered the questions.” (People v. Talley (1987), 152 Ill. App. 3d 971, 987, 504 N.E.2d 1318, 1328; see also People v. Peters (1986), 144 Ill. App. 3d 310, 494 N.E.2d 853 (juror’s hesitation in responding to questions); People v. Buford (1992), 235 Ill. App. 3d 393, 601 N.E.2d 1099 (juror interrupted questioning to get cough drop).) In light of the acceptance of courtroom demeanor as a legitimate basis for a peremptory challenge, we cannot say that the prosecutor failed to give a legitimate, race-neutral reason for excluding Mr. Acosta.

Based on the record before us, and in view of the deference to be accorded to the trial judge’s findings in these matters, we find the evidence supports the trial court’s determination that the prosecutor did not engage in purposeful discrimination. We therefore affirm the trial court’s denial of defendant’s Batson motion.

Defendant next contends that the trial court erred in instructing the jury that he could be found guilty based on the law of accountability. Defendant argues that he could not be held accountable for the conduct of Diaz because his only involvement in the drug transactions was as a translator. As the State points out, defendant failed to raise this argument in his post-trial motion. It is well settled that in order to preserve an issue for review, the defendant is required to object at trial and raise the issue in his post-trial motion. (People v. Clark (1992), 231 Ill. App. 3d 571, 596 N.E.2d 642.) Defendant has therefore waived this argument.

Even if we were to address defendant’s argument, we would reject it. A person is accountable for the conduct of another when, either before or during the commission of an offense, with the intent to promote or facilitate its commission, he solicits, aids, or abets another in the planning or commission of that offense. (111. Rev. Stat. 1991, ch. 38, par. 5 — 2(c).) Only slight evidence of accountability is needed to justify the giving of an accountability instruction. People v. Faysom (1985), 131 Ill. App. 3d 517, 475 N.E.2d 945.

Even if defendant were merely a translator for Diaz as he claims, he was certainly aiding Diaz in the commission of the offense. One who acts as an interpreter or translator during a drug transaction is certainly facilitating the commission of the crime. Moreover, the record indicates that defendant did more than merely act as an interpreter. Defendant actually arranged the drug deals with Agent Fuentes. On both occasions he negotiated the entire transaction and quoted the prices for the different amounts of cocaine. It was the defendant who selected the times and locations for the completion of the drug transaction. Finally, defendant was actually present during both transactions. In light of this evidence, it was entirely proper for the trial judge to give the accountability instruction.

Defendant next argues that he was entrapped into committing the charged offenses. The well-established rule in Illinois is that the entrapment defense is not available to a defendant who denies committing the offense charged. (People v. Gillespie (1990), 136 111. 2d 496, 557 N.E.2d 894; People v. Fleming (1971), 50 Ill. 2d 141, 277 N.E.2d 872.)

“The logical reasoning behind the long-standing entrapment defense rule is that it is both factually and legally inconsistent for a defendant to deny committing the offense and then to assert as a defense that he committed the offense, but only because of incitement or inducement by the authorities.” Gillespie, 136 Ill. 2d at 501, 557 N.E.2d at 897.

In the case at bar, defendant denied that he committed either of the charged offenses. Thus, the defense of entrapment is unavailable to him. Parenthetically, we note that even if defendant had properly raised the defense of entrapment, we would reject his argument since his conversations with Agent Fuentes clearly show his predisposition to commit the crimes charged. See People v. Martin (1991), 219 Ill. App. 3d 1064, 580 N.E.2d 575.

Finally, we address defendant’s contention that he was not proven guilty beyond a reasonable doubt. When faced with a challenge to the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

We believe the evidence presented at trial was sufficient to support defendant’s convictions for unlawful delivery of a controlled substance. As discussed above, the undisputed evidence showed that defendant negotiated and arranged two cocaine sales with an undercover officer and was then present when the transactions took place. Even if the jury chose to believe .defendant’s claim that he only acted as a translator during the transactions, the jury could still have reasonably found defendant guilty on an accountability theory. Factors to consider in determining a defendant’s accountability include proof that the defendant was present during the commission of the crime without opposing or disapproving it, maintaining a close affiliation with his or her companions after the offense, and failing to report the crime. (People v. Haynes (1991), 223 Ill. App. 3d 147, 583 N.E.2d 1177.) All of these factors weigh against the defendant in this case. The evidence was sufficient to support the jury’s verdict.

Defendant also appeals the denial of his motions for a directed verdict at the close of the State’s case and again after the defense had rested. In light of our finding that defendant was proven guilty beyond a reasonable doubt, we affirm the trial court’s denial of the motions.

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

Affirmed.

BARRY and LYTTON, JJ., concur.