author: JUSTICE INGLIS

text:
    HINSDALE GOLF CLUB, Appellant, v. ANTHONY W. KOCHANSKI et al., Appellees.—ANTHONY W. KOCHANSKI, Appellant, v. HINSDALE GOLF CLUB et al., Appellees.
    Second District
    Nos. 2—89—1087, 2—89—1097 cons.
    Opinion filed May 3, 1990.
    Rehearing denied June 19, 1990.

      Joseph S. Wright, Jr., of Martin, Craig, Chester & Sonnenschein, of Chicago, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield, and Dorothy M. Gunn, of Pollution Control Board, of Chicago (William D. Seith, Assistant Attorney General, of Chicago, of counsel), for respondent Pollution Control Board.
   JUSTICE INGLIS

delivered the opinion of the court:

Hinsdale Golf Club (Golf Club) and Anthony W. Kochanski have filed separate appeals from a final order entered by the Pollution Control Board (Board). The Golf Club appeals from the Board’s finding that its complained-of activity is subject to the Board’s noise regulations (No. 2—89—1087). Kochanski, who appeared pro se before the Board and this court, appeals from the Board’s finding on the merits of his noise complaint filed against the Golf Club (No. 2—89—1097). For purposes of review, this court has consolidated the two appeals.

On January 15, 1988, Kochanski filed a formal complaint with the Board against the Golf Club alleging that the skeet-shooting activities conducted on the facility emanates impulsive noise onto neighboring residential properties in violation of sections 900.102 and 901.104 of title 35 of the Administrative Code (Code) (35 Ill. Adm. Code §900.102 (1985); 35 Ill. Adm. Code §900.104 (Supp. 1988)). The Golf Club has conducted skeet shooting on its property since 1943. The activity is licensed by the Village of Clarendon Hills yearly for four-month terms commencing the beginning of November and running to the end of February. The Golf Club’s current schedule, revised about five or six years ago, restricts the shooting to Saturdays and Sundays between the hours of 11 a.m. and 3 p.m. The schedule includes organized events among the Club’s members as well as competition with other skeet clubs. About 20 to 50 shooters participate in the club’s skeet-shooting activities, which is restricted to club members. The Golf Club is a private club whose members are drawn from that portion of the general public who chose to apply for membership and pay the initiation fee.

The shooting occurs behind the clubhouse in the approximate center of the Golf Club grounds. Although the general area is flat, the grounds of the club roll, and the shooting occurs in a depression between two greens. Abutting the grounds on the northeast and east of the club is residential property, including property owned by Kochanski. Between the skeet-shooting field and the residential area is about 400 yards of Golf Club grounds, along which is a 10-foot to 12-foot-high berm, then two or three extensive rows of deciduous trees. A short distance to the east of the residential area is Illinois Route 83, a major highway carrying significant truck traffic. Thus, Kochanski’s property is situated between the Golf Club and the highway.

In an order dated January 21, 1988, the Board noted that section 25 of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1987, ch. HV-k, par. 1025) places certain restrictions on the Board’s ability to hear noise violation proceedings involving certain sporting activities. The pertinent language of section 25 states that “[n]o Board standards for monitoring noise or regulations prescribing limitations on noise emissions shall apply to any organized amateur or professional sporting activity.” (Ill. Rev. Stat. 1987, ch. llP/a, par. 1025.) To determine better whether it had authority to hear the complaint, the Board required the parties to file written documents discussing whether the complained-of activity is an “organized amateur or professional sporting activity.” The statutory definition of “organized amateur or professional sporting activity” is contained in section 3.25 of the Act and provides:

“ ‘Organized amateur or professional sporting activity’ means an activity or event carried out at a facility by persons who engaged in that activity as a business or for education, charity or entertainment for the general public, including all necessary actions and activities associated with such an activity. This definition includes, but is not limited to, skeet, trap or shooting sports clubs in existence prior to January 1, 1975, organized motor sports, and sporting events organized or controlled by school districts, units of local government, state agencies, colleges, universities or professional sports clubs offering exhibitions to the public.” Ill. Rev. Stat. 1987, ch. HV-k, par. 1003.25.

In response, the Golf Club filed a motion to dismiss on February 1, 1988, alleging that the skeet-shooting activity is an organized sporting activity within the meaning of the statute and, as such, is not subject to the Board’s regulations. The Club argues that it is not necessary that the sporting activity be open to the general public, as the statutory definition specifically includes “skeet, trap or shooting sports clubs” (Ill. Rev. Stat. 1987, ch. HV-k, par. 1003.25) and by its very definition “club” excludes the general public.

The Board disagreed, finding that the skeet-shooting activity in question does not fall within the statutory definition of organized amateur or professional sporting activity. In its order dated February 25, 1988, the Board stated that “[a]lthough the public may be able to apply for membership to the club, the shooting activities are carried out privately among members of the Hinsdale Golf Club.” The Board concluded that the shooting activity was, therefore, not “carried out *** for the general public” and that the Golf Club was not a “skeet, trap, or shooting sports club” within the statutory exception. Consequently, a majority of the Board denied the Golf Club’s motion to dismiss.

After considering the merits of Kochanski’s complaint, a majority of the Board ruled in favor of the Golf Club, finding no violation under either the numerical sound emissions standard (35 Ill. Adm. Code §901.104 (Supp. 1988)) or the narrative sound emissions standard (35 Ill. Adm. Code §900.102 (1985)). One Board member concurred with the majority’s opinion, agreeing that the matter should be dismissed but arguing that the complained-of activity was exempt from Board regulation. Two members dissented, arguing that the Board erred in finding that the complained-of activity did not violate noise regulations. These timely appeals ensued.

We first consider the contention raised by the Golf Club as its resolution may be dispositive of both appeals. The Golf Club contends that the Board erred in finding that the skeet-shooting activity did not fall within the statutorily exempt category of organized amateur sporting activity. The Board responds by maintaining that, in order to be exempt from Board regulation, the skeet club must benefit the general public. The Board contends that, while the definition of “club” does connote exclusion of the general public, under the statute a club can nonetheless fall within the exception if it offers a direct benefit for the general public.

The construction of a statute is a question of law. (Krall v. Secretary of State (1988), 168 Ill. App. 3d 478, 483.) A court’s function in interpreting statutory provisions is to ascertain and give effect to the legislative intent underlying the statute; thus, the court must look at the statute as a whole, taking into consideration its nature, its purposes and the evil the statute was intended to remedy. (Rodgers v. Department of Employment Security (1989), 186 Ill. App. 3d 194, 198.) Each word, clause, or sentence of a statute must not be rendered superfluous but must, if possible, be given some reasonable meaning. (Peoria Roofing & Sheet Metal Co. v. Industrial Comm’n (1989), 181 Ill. App. 3d 616, 620.) When the statutory language is clear and unambiguous, this court’s only function is to enforce the law as enacted by the legislature. Eckman v. Board of Trustees for the Police Pension Fund (1986), 143 Ill. App. 3d 757, 762.

While an agency’s construction of a statute will normally be given substantial weight and deference, it is not binding on a court where it is clearly erroneous, arbitrary, or unreasonable. (Krall, 168 Ill. App. 3d at 483-84.) Here, the Board held that, because the shooting activities are carried out privately among the Golf Club members, the statutory exception did not apply. The Board went on to state that “[n]or does *** the activity fall[ ] within the ‘sheet, trap, or shooting sports clubs in existence prior to January 1, 1975’ exception.” In its opinion, however, the Board did not explain the latter part of its holding, and we find that the explanation now given is unreasonable.

Prior to its 1981 amendment, section 25 provided:

“[N]o Board standards for monitoring noise or regulations prescribing limitations on noise emissions shall apply to sheet, trap or shooting sports clubs chartered and operational prior to January 1, 1975, which are situated in the same location in which they were situated prior to January 1, 1975 or to any sanctioned motor racing event at a motor racing facility in existence prior to January 1, 1975, or any other sporting event sanctioned by the American Athletic Union, the National Collegiate Athletic Association, or the Illinois High School Association.” (Ill. Rev. Stat. 1979, ch. IIIV2, par. 1025.)

Public Act 82 — 654 amended section 25 to provide simply that “no Board standards for monitoring noise or regulations prescribing limitations on noise emissions shall apply to any organized amateur or professional sporting activity.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. llU/a, par. 1025.) “Organized amateur or professional sporting activity” was then defined as:

“an activity or event carried out at a facility by persons who engaged in that activity as a business or for education, charity or entertainment for the general public, including all necessary actions and activities associated with such an activity. This definition includes, but is not limited to, sheet, trap or shooting sports clubs in existence prior to January 1, 1975, organized motor sports, and sporting events organized or controlled by school districts, units of local government, state agencies, colleges, universities or professional sports clubs offering exhibitions to the public.” Ill. Rev. Stat. 1981, ch. IIIV2, par. 1003(v).

From our reading of the history of the statute and its present language, it appears that Public Act 82 — 654 enlarged the types of activities excluded from the Board’s jurisdiction, not restricted them. Skeet-shooting clubs, regardless of their public involvement, were originally excluded, and we do not read Public Act 82 — 654 as limiting that exclusion.

It is well established that in construing a statute, the more specific terms prevail over the more general. (City of Lake Forest v. Pollution Control Board (1986), 146 Ill. App. 3d 848, 855.) Thus, the specific examples of the excluded activities provided in the second sentence of section 3.25 prevail over the more general definition provided in the first sentence.

Further, the Board’s argument that the phrase “offering exhibitions to the public” qualifies the listed examples in section 3.25 is without merit. We read the same phrase as only qualifying certain organized sporting events. That is, “organized amateur or professional sporting activity” includes, but is not limited to: (1) skeet, trap, or shooting sports clubs; (2) organized motor sports; and (2) sporting events organized by various listed entities including professional sports clubs which offer exhibitions to the public. Because the skeet-shooting activity at issue here clearly falls within the first-listed exception, it is thereby excluded from the regulatory purview of the Board. Consequently, the Board had no authority to hear the matter.

Given our finding that the Board’s regulations do not apply to the activity at issue, it is unnecessary for us to consider the correctness of the Board’s ruling finding that no violation existed.

For the reasons stated above, we reverse the Board’s decision and dismiss the complaint.

Reversed.

WOODWARD and McLAREN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LEWIS

license: Public Domain

text:
    SILICA SAND TRANSPORT, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Herman Miller, Appellee).—FRIEDERS TRUCKING, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Herman Miller, Appellee).
    Third District (Industrial Commission Division)
    Nos. 3—89—0134WC, 3—89—0146WC cons.
    Opinion filed April 30, 1990.

      Guy C. Fraker, of Costigan & Wollrab, of Bloomington, for Silica Sand Transport, Inc.
    Karen L. Kendall, of Heyl, Royster, Voelker & Allen, of Peoria, and Kevin J. Luther, of Heyl, Royster, Voelker & Allen, of Rockford, for Frieder’s Trucking, Inc.
    Peter F. Ferracuti, of Law Offices of Peter F. Ferracuti, P.C., of Ottawa, for appellee Herman Miller.
   JUSTICE LEWIS

delivered the opinion of the court:

An application for adjustment of claim pursuant to the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) was filed by Herman Miller, the claimant, for injuries sustained to his back on December 7, 1984, in the course of his employment with Frieders Trucking, Inc. (Frieders). The claimant had also filed two other claims for workers’ compensation against Frieders for back injuries which were incurred while in the course of his employment on July 8, 1983, and on June 12, 1984. All three adjustments for claims were filed on December 17, 1985. Subsequently, on January 30, 1987, the claimant filed a separate adjustment of claim against Silica Sand Transport, Inc. (Silica), for the same injuries incurred by him on December 7, 1984.

The arbitrator considered all of the claimant’s claims at a hearing held on April 6, 1987. The arbitrator found that the claimant’s current condition of ill-being was primarily the result of the claimant’s accident of December 7, 1984, awarded the claimant temporary total disability benefits (TTD), and determined that this award did not bar a further hearing for a determination of additional TTD and of permanent disability. The arbitrator found that Frieders was the loaning employer and Silica was the borrowing employer of the claimant at the time of the claimant’s injury, and that Silica, in its lease agreement with Frieders, had agreed to provide workers’ compensation insurance for employees borrowed by Silica from Frieders. However, the arbitrator held that, because Frieders failed to comply with a condition precedent of the lease agreement, Frieders was only entitled to 50% reimbursement from Silica for the benefits paid to the claimant. The arbitrator further held that the notice of the accident was timely given to Frieders and that this notice served as notice to Silica. In addition to awarding the claimant TTD, the arbitrator imposed section 19(1) penalties (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(7)) in the sum of $2,500 and attorney fees, pursuant to section 16 (Ill. Rev. Stat. 1985, ch. 48, par. 138.16), up to $5,000 against Silica.

A review of the arbitrator’s decision was sought before the Industrial Commission. Prior to the review hearing, Frieders filed a petition for reimbursement which was considered by the Commission at the hearing on review. The Commission affirmed the arbitrator’s determination that an employer/employee relationship existed between the claimant and both Frieders and Silica on December 7, 1984, and that Silica had borrowed the claimant from Frieders. The Commission determined that the claimant was a loaned employee, notwithstanding Frieders’ failure to obtain Silica’s prior approval of the claimant as was required under the lease agreement, and Silica’s lack of knowledge of the substitution of the claimant for an approved employee. The Commission affirmed the arbitrator’s finding that timely notice of the claimant’s accident to Frieders served as notice to Silica, and that Silica was not prejudiced by the lack of actual notice. The Commission increased Frieders’ reimbursement from Silica from 50% and determined that Frieders was entitled to be wholly reimbursed for payments to the claimant for workers’ compensation benefits and for medical expenses. The Commission also found that Frieders was entitled to reimbursement for its expenses and reasonable attorney fees, but because Frieders failed to present evidence upon which to make a determination of attorney fees, the Commission did not award an amount for the attorney fees. The Commission reversed the arbitrator’s award of section 19(7) penalties and attorney fees pursuant to section 16 against Silica. Lastly, the Commission determined that this cause should be remanded to the arbitrator for further proceedings for a determination of the claimant’s entitlement to permanent disability in accordance with the holding of Thomas v. Industrial Comm’n (1980), 78 Ill. 2d 327, 399 N.E.2d 1322.

On appeal, the circuit court confirmed the Industrial Commission’s decision. Separate appeals were filed in this court by Frieders and by Silica and, upon the motion of the parties, these appeals were consolidated for consideration. The issues raised by Silica on appeal are whether the Industrial Commission’s determination that a loaned employee relationship existed between Silica and the claimant was against the manifest weight of the evidence, and whether Silica was given timely notice of the claimant’s accident. The issue raised by Frieders on appeal is whether the Industrial Commission erred in denying Frieders reimbursement for its reasonable attorney fees.

At the hearing before the arbitrator, the claimant testified that on December 7, 1984, he was employed by Frieders as a truck driver. He had been hired by Frieders in April 1983, and prior to that time, he had been employed by Silica. When the claimant went to work for Frieders, he was given a preemployment physical which showed that he had no preexisting back problems.

On July 8, 1983, while unloading his truck, the claimant suffered a back injury. The claimant reported his injury to Frieders. As a result of this injury, the claimant was off work for a week and was prescribed pain pills and muscle relaxants. When he returned to work a week later, his back appeared to be normal.

The claimant testified that on June 21, 1984, he again hurt his back while unloading empty pallets at Frieders’ garage. He did not consult a doctor for this injury, but he took the remaining pain pills previously prescribed for his prior back injury. He did not miss any work as a result of this accident.

On December 7, 1984, the claimant came into Frieders’ garage to wash his truck. Joseph Frieders asked the claimant if he would “make a run,” since Jack Ellis, who normally was scheduled to do the job, was unavailable because of personal reasons. The claimant agreed and drove to the Indiana/Illinois border, where he picked up Ellis’ truck. The claimant drove the truck to Michigan City, Indiana, and obtained a load of sand which he transported to Grand Rapids, Michigan. After the claimant unloaded the sand with a 20-foot product hose, the claimant attempted to dislodge the hose from the snow and gravel where it had become caught. When the claimant pulled the hose, he fell to his knees with a severe pain in his back. The' claimant managed to drive his truck back to Frieders’ garage, and when he arrived home, he notified Joseph Frieders of his accident. Subsequently, the claimant underwent an unsuccessful chemonucleolysis on his spine in 1985, and, in 1986, a laminectomy was performed. The claimant had not worked since December 8, 1984.

The claimant admitted that, although he drove the truck on December 7, 1984, he signed Jack Ellis’ name to the bill of lading. The claimant had been advised to sign Ellis’ name to avoid inner-office problems. However, the claimant was paid for the trip.

Marilyn Risch, president of Silica, testified that a one-year lease agreement between Silica and Frieders was in effect on December 7, 1984, and that the lease agreement was substantially similar in its provisions to other contracts entered into by Frieders and Silica in the past. The lease agreement provided that, upon Silica’s request, Frieders would provide the equipment and the driver to transport Silica’s goods from one destination to another. Silica had its own trucks and drivers, but, on occasion, when extra trucks and drivers were needed, Silica would use Frieders’ trucks and drivers, per the parties’ contract. The lease agreement further provided that Frieders was the registered owner of the leased vehicles, but that Silica was to have exclusive “possession, control and use” of the vehicles; that Frieders was responsible for fire, theft or damage to the trucks and for the maintenance and storage of the vehicles; that Frieders was to pay for all State and Federal licenses and permits; that Frieders was responsible for any fines assessed which were due to improper equipment or the operation of the leased equipment; that Frieders’ vehicles were to be painted and lettered with Silica’s colors; that Frieders was responsible for the hiring, compensating and discharging of the employees operating the vehicles; and that Silica was responsible for providing insurance, including workers’ compensation insurance, unless Frieders elected to reject Silica’s insurance coverage. If Frieders refused Silica’s insurance, Frieders was to sign a hold harmless agreement and was to provide the same insurance coverage as Silica had offered. Frieders elected to accept Silica’s insurance coverage, and Silica deducted for workers’ compensation premiums from its payments to Frieders after the work was performed. According to Risch, workers’ compensation premiums were deducted from their payment to Frieders for the transporting of the load of sand on December 7, 1984, but Silica’s insurance carrier had denied the claimant coverage of his claim.

The lease agreement between Silica and Frieders also contained the following provision:

“No leased vehicle shall be operated by any person other than an employee of contractor [Frieders] having been approved and on file by the Company [Silica], as required by the Interstate Commerce Commission.”

Risch testified that the language “having been approved and on file” with Silica meant that the Frieders’ driver had come into Silica’s office and had filled out an application, had had an Interstate Commerce Commission (ICC) physical, had had a “road test,” had had a written test, had had an inquiry made into past employers, and had supplied any other documents Silica might require. The claimant had not done any of these and was not on the approved driver list for Silica. Risch admitted that the claimant had worked for Silica for five years and that he had voluntarily left her employment on April 1,1983.

Risch had not known that the claimant had driven for Silica as a loaned employee until December of 1985, when her secretary received a call that the claimant had been injured on December 7, 1984, while driving a truck for Silica. According to Silica’s records for that date, Jack Ellis’ name appeared on their documents. Risch admitted that the mileage record of December 7, 1984, had Jack Ellis’ name on it, but she did not believe the handwriting was Ellis.’ Risch also admitted that it was possible that other nonapproved drivers had been substituted for an approved driver on previous occasions; however, Silica was unaware of when this may have occurred.

Joseph Frieders, the president of Frieders, testified that Frieders had done business with Silica for approximately 18 years. Frieders also provided trucks and drivers to other companies. Frieders corroborated that under the parties’ contract, he was responsible for the hiring, the compensating, and the discharging of employees, and for operating and servicing the equipment; but, that it was Silica’s responsibility to provide the workers’ compensation insurance.

Frieders’ understanding of the phrase “approved and on file” contained in the lease agreement was that the driver had had a Department of Transportation physical, had had a “road test” and a written test on file, and had met the other- requirements of the ICC. The claimant had met all of those requirements while he was employed by Frieders, and the documentation showing compliance with these requirements was kept in Frieders’ office.

Frieders testified that the claimant had driven for Silica on three previous occasions: on December 27, 1983, on December 30, 1983, and on June 12, 1984. On those dates, the claimant had substituted for the driver who regularly ran those trips. According to Frieders, other drivers had been substituted for the trips for Silica, and it was customary for the substituting driver to sign the regular driver’s name to the necessary documents for the trip. Frieders had discussed substituting drivers with Silica’s operations manager or dispatcher on different occasions during the years, but he could not recall a specific date on which he had done so. Frieders named Chuck Graves and Mel Ahrens as the Silica employees with whom he had discussed substituting drivers, and that these persons had agreed to the substitution. Frieders stated that it was Silica’s operations managers who had told him that the substituted drivers should sign the regularly assigned driver’s name to the trip documents to avoid internal problems with Silica. According to Frieders, if Silica was “in a bind” about getting a load transported, Silica was more lenient about using a substitute driver, since Silica’s main concern was getting the job done.

When Frieders was shown the mileage sheet for December 7, 1984, Frieders acknowledged that Ellis’ name appeared on the document, but he believed that the handwriting was his own. Frieders confirmed that it was the claimant who had driven the truck for Silica on December 7, 1984, and not Ellis, and that Frieders had received payment from Silica for this trip. Frieders could not recall specifically discussing the substitution of the claimant for Ellis on December 7, 1984, with Silica.

The remaining evidence presented at the hearing before the arbitrator consisted of the medical records of the claimant regarding his injury, and since the claimant’s injury is not at issue here, we need not reiterate that evidence. At the review hearing before the Industrial Commission, the claimant testified that he had not returned to any gainful employment, and he presented the additional medical expenses incurred by him since the arbitration hearing.

On appeal, neither Silica nor Frieders contests the claimant’s award of workers’ compensation benefits, but they dispute who is liable for the payment of those benefits. Silica contends that the Industrial Commission’s determination that Frieders, the loaning employer, was entitled to reimbursement from Silica, the borrowing employer, for compensation payments and medical expenses made to the claimant was against the manifest weight of the evidence. The thrust of Silica’s argument is that because Frieders violated the parties’ express agreement which set forth the conditions for borrowing employees, a lending situation did not arise under the contract and Silica was not liable as the borrowing employer.

Our first consideration is whether the evidence supported the Industrial Commission’s conclusion that Silica was a borrowing employer and Frieders was a lending employer. Silica claims that the facts of this case do not support this determination.

A loaned employee’s status is a question of fact for the Industrial Commission, and the determination made by the Industrial Commission will not be overturned unless its finding is against the manifest weight of the evidence. (A.J. Johnson Paving Co. v. Industrial Comm’n (1980), 82 Ill. 2d 341, 412 N.E.2d 477.) According to Larson, “[t]he closest cases are those in which the business of the general employer consists largely of the very process of furnishing equipment and employees to others” (1C A. Larson, Workmen’s Compensation §48.23, at 8 — 458 (1986)), a situation such as exists in this case. The most important factor in determining a loaned employee’s status is whether the borrowing employer had the right to control the loaned employee’s work. (A.J. Johnson Paving Co., 82 Ill. 2d 341, 412 N.E.2d 477; Area Transport Co. v. Industrial Comm’n (1984), 123 Ill. App. 3d 1096, 465 N.E.2d 533.) However, also to be considered is whether a contract of hire, either express or implied, existed between the borrowing employer and the employee. A.J. Johnson Paving Co., 82 Ill. 2d 341, 412 N.E.2d 477.

The evidence in this case supported the Industrial Commission’s finding that the claimant was a loaned employee and that Silica was the borrowing employer. First, there was sufficient evidence to show that Silica had the right to control the manner of work performed. The lease agreement itself stated that Silica had “exclusive possession, control and use” of the vehicles borrowed from Frieders. Silica also, under the lease agreement, required Frieders to paint the trucks borrowed by Silica with Silica’s logo. Silica was responsible to pay not only workers’ compensation insurance on the drivers provided by Frieders, but Silica had also assumed responsibility for other insurance required by the ICC. Likewise, although this provision was not complied with in this case, Silica normally had the right to preapprove the drivers who were borrowed. Additionally, since the claimant had previously worked for Silica, it is a reasonable inference that the claimant would have been an acceptable driver to Silica. Silica also instructed the driver of the truck as to the pick-up point and the final destination of the load to be transported. We also note that it was while the claimant was performing Silica’s work of unloading the sand that the claimant was injured.

With regard to the existence of a contract for hire between the claimant and Silica, we further conclude that the evidence supported the determination that a contract for hire did exist. Frieders’ business was to supply drivers and trucks to businesses who needed goods transported and lacked sufficient equipment to do so, and Frieders had expressly contracted with Silica for this service under the lease agreement. Because of the nature of Frieders’ business, it could be inferred that the claimant agreed to drive for others. It can also be inferred that the claimant knew that the trip of December 7, 1984, was for Silica, as the claimant obtained Jack Ellis’ truck for the trip, and this truck was painted with Silica’s colors. Thus, the claimant either had expressly agreed to a contract of hire with Silica through Frieders’ lease agreement, or he had impliedly agreed by his actions. Therefore, the Commission’s finding that there was a lending/borrowing relationship between Silica and Frieders was not against the manifest weight of the evidence.

Silica has also argued that Frieders’ violation of the provision of the lease agreement requiring Silica’s preapproval of the borrowed driver negated the claimant’s loaned employee status in its entirety, as this provision was a “condition precedent” of the contract. We find no merit to Silica’s argument. Usually, a failure of one party to perform a “condition precedent” of a contract excuses the other party from fulfilling its obligations under the contract, and it is determined that there is no contract as a result. Here, the contract had been substantially performed in that Frieders had done the work requested by Silica and Silica had paid Frieders for the work. It would be unfair and unrealistic to determine, after Silica had obtained the benefits of the contract, that the provision of which it complains was a substantial one which excused Silica’s performance under the contract and that a loaning situation did not exist. This is especially true, where, as here, there is no evidence that this provision of the lease agreement was strictly enforced.

Having determined that Silica was a borrowing employer and Frieders a loaning employer of the claimant, we must next determine which employer was liable for the payment of the claimant’s workers’ compensation benefits. Generally, when a lending employer and a borrowing employer situation exists, the statute provides that both employers are jointly and severally liable to the employee, but as to the liability between the two employers, the borrowing employer is primarily liable and the lending employer is secondarily liable. (Ill. Rev. Stat. 1985, ch. 48, par. 138.1(a)(4); A.J. Johnson Paving Co. v. Industrial Comm’n (1980), 82 Ill. 2d 341, 412 N.E.2d 477.) If the borrowing employer fails to pay the benefits awarded to the claimant, then the loaning employer must pay and the loaning employer has the right to seek reimbursement from the borrowing employer. (Fort Dearborn Cartage Co. ex rel. Chubb & Son, Inc. v. Rooks Transfer Co. (1985), 136 Ill. App. 3d 371, 483 N.E.2d 618.) However, the statute also provides that this right to reimbursement can be waived by an agreement “to the contrary” between the two employers. Ill. Rev. Stat. 1985, ch. 48, par. 138.1(a)(4); Fort Dearborn Cartage Co. ex rel. Chubb & Son, Inc., 136 Ill. App. 3d 371, 483 N.E.2d 618.

Therefore, it must be determined whether the lease agreement between Frieders and Silica was an “agreement to the contrary.” Silica and Frieders’ lease agreement provided that Silica was to furnish workers’ compensation for employees loaned to Silica by Frieders. The lease agreement stated as follows:

“Contractor [Frieders] agrees to pay $250.00 deductible for each accident, which will be deducted from the Contractor’s revenue. Company [Silica] shall provide a written explanation and itemization of any deductions for Cargo loss or damage, or PL & PD, from compensation due the Contractor. Insurance coverage will terminate at Contractor’s termination date. If Contractor refuses Company insurance protection, Contractor must sign a Hold Harmless Agreement and provide the Company the same coverage as shown on the Certificate of Insurance, and show Company as an added insured on Contractor’s policy. Said Hold Harmless Agreement attached as ‘Schedule B.’
(a) Contractor, [signed] Joseph F. Frieders, requests: _, refuses:
Company’s Aetna Life & Casualty Insurance protection for Workmen’s Compensation Policy No. 08C32850CCA, at the rate of 5.88 per hundred.”

Clearly, a fair and reasonable construction of this language was that Silica was liable for workers’ compensation and that Frieders accepted Silica’s insurance coverage.

Since the lease agreement imposed the same liability as section 1(a)(4), in that Silica, as the borrowing employer, was to assume the liability for the employees borrowed from Frieders, the lease agreement was not an “agreement to the contrary” which shifted liability for workers' compensation benefits from Silica to Frieders. Therefore, because there was no contract to the contrary, Silica, as a borrowing employer, was liable for the claimant’s workers’ compensation benefits under section 1(a)(4) as well as under the contract.

We also note that the Commission and the arbitrator determined that Frieders had breached the parties’ contract. If, arguendo, Frieders breached the parties’ contract, Silica’s recourse is in a cause of action for breach of contract; however, as this is not the forum for a breach of contract case, we will not discuss this matter further or determine the merits of such an action here.

Silica’s second issue on appeal is that it was not provided timely notice of the claimant’s accident as required under section 6(c) of the Workers’ Compensation Act. (Ill. Rev. Stat. 1985, ch. 48, par. 138.6(c).) Silica contends that it received notice approximately one year after the accident, more than the 45 days’ notice required by the statute, and that, therefore, the claimant’s recovery against Silica was barred, or alternatively, that it was unduly prejudiced by the lack of actual notice.

Section 6(c) provides in pertinent part as follows:

“Notice of the accident shall be given to the employer as soon as practicable, but not later than 45 days after the accident. ***
* * *
No defect or inaccuracy of such notice shall be a bar to the maintenance of proceedings on arbitration or otherwise by the employee unless the employer proves that he is unduly prejudiced in such proceedings by such defect or inaccuracy.
Notice of the accident shall give the approximate date and place of the accident, if known, and may be given orally or in writing.” (Ill. Rev. Stat. 1985, ch. 48, par. 138.6(c).)

This rule has been held to be jurisdictional and a prerequisite for maintaining a proceeding under the statute; however, a claim is only barred if no notice whatsoever has been given. (Luckenbill v. Industrial Comm’n (1987), 155 Ill. App. 3d 106, 507 N.E.2d 1185.) If some notice has been given, but the notice is defective or inaccurate, then the employer must show that he has been unduly prejudiced. (Luckenbill, 155 Ill. App. 3d 106, 507 N.E.2d 1185.) Here, timely notice was given to Frieders; however, it was not until Frieders’ insurance carrier called Silica, approximately one year after the accident, that Silica was given notice.

The statute and case law do not provide guidance in the situation, such as here, where there is a lending employer and a borrowing employer, as to which employer an injured employee must give notice of an accident. In many cases, the employee is injured while on the premises of the borrowing employer, and the borrowing employer is either present or is notified by the employee at the time the employee received his injury, thereby providing sufficient notice of the accident. In this case, neither employer nor any of its representatives were present to witness and document the claimant’s injury.

The Industrial Commission found that Frieders was given timely notice of the claimant’s injury and that this notice served as notice to Silica. The Commission further found that Silica was not prejudiced by the “lack of actual notice.” We find, under the circumstances presented here, that the Commission’s determination was correct. In this case, timely notice was given to Frieders by the claimant. The claimant cannot be expected to know the legal ramifications of which employer he should notify, and to hold that the failure of the claimant to notify Silica would bar the claimant’s recovery would be inherently unfair. We find that the notice given by the claimant to Frieders must be construed to be an inaccurate or defective notice to Silica, but was otherwise properly given, and that Silica must show that it was unduly prejudiced by the defective or inaccurate notice.

Larson has stated, in his discussion on excusing failure to provide proper notice, as follows:

“As to notice of injury, however, both courts and legislatures have been inclined to ask whether either of the two purposes of the notice statute has miscarried because of the lack of literal compliance [with the notice provisions], the two purposes being the facilitation of prompt medical attention and the provision of opportunity for immediate investigation of the circumstances of the accident.” (2B A. Larson, Workmen’s Compensation §78.30, at 15 — 108, 15 — 110.)

Thus, in considering whether Silica was unduly prejudiced by lack of actual notice, we must consider whether the twofold purpose of giving notice was met under the circumstances presented here.

The evidence in this case revealed that the claimant received prompt medical attention, thereby alleviating the parties’ potential liability. Further, it is not apparent from the record that the notice given to Frieders prevented or inhibited the opportunity to investigate the circumstances of the claimant’s accident. Frieders cannot have known with any certainty that it would not be held liable for the payment of the claimant’s workers’ compensation benefits. Thus, it can be inferred that Frieders had thoroughly investigated the circumstances of the claimant’s accident to assure that workers’ compensation benefits were warranted in this case. Silica does not contend that Frieders did not do so, but simply argues that it was “totally deprived of any opportunity to preserve a defense.” However, Silica was present at all the proceedings conducted in this case, and it does not appear from the record that Silica was unable to present an adequate defense. Further, Silica’s claim of undue prejudice is undermined by the fact that Silica did not appeal the Industrial Commission’s determination that the claimant’s injuries were compensable under the Workers’ Compensation Act. Silica has not met its burden of proof of demonstrating undue prejudice since Silica has only speculated that it was prejudiced, and it has not supported its speculation with factual prejudice. (McLean Trucking Co. v. Industrial Comm’n (1978), 72 Ill. 2d 350, 381 N.E.2d 245.) Therefore, we conclude that the Industrial Commission’s determination that notice of the claimant’s accident to Frieders served as notice to Silica was not erroneous.

Lastly, we consider the issue raised by Frieders on appeal. Frieders contends that the Industrial Commission erred when it was denied reimbursement from Silica for its reasonable attorney fees pursuant to section 1(a)(4). (Ill. Rev. Stat. 1985, ch. 48, par. 138.1(a)(4).) Our reading of the Industrial Commission’s order compels us to conclude that Frieders misread what the Industrial Commission decided regarding this issue. In the Commission’s order, it stated:

“Pursuant to [section] 1(b)(4) of the Act, Frieders is also entitled to reimbursement from Silica Sand for reasonable attorneys’ fees and expenses in any hearings before the Commission to secure such reimbursement. However, there is no evidence from which the Commission can determine the amount of reasonable attorneys’ fees and expenses.”

From this language it is apparent that the Commission did not deny Frieders reimbursement for its attorney fees, but that the Commission lacked adequate information upon which to base an award. The sole evidence presented by Frieders regarding attorney fees was the following statement contained in its petition for reimbursement: “Reasonable Attorney Fees *** $2,925.92.” This information was insufficient to support its request for attorney fees and expenses or to show the reasonableness of the amount requested.

The language of the statute provides that a loaning employer is entitled to reimbursement for “reasonable attorneys’ fees.” (Ill. Rev. Stat. 1985, ch. 48, par. 138.1(4).) Research of what is meant by “reasonable attorneys’ fees” fails to disclose any workers’ compensation cases on this; however, logic dictates that the standard of what is reasonable for attorney fees in other cases is appropriate in workers’ compensation cases. In determining the reasonableness of attorney fees, it has been held that factors to be considered include the skill and standing of the attorney employed, the nature of the cause and the complexity of the issues, the time and labor required, and the usual and customary charge in the community. See Baker v. City of Granite City (1983), 112 Ill. App. 3d 1096, 446 N.E.2d 531.

Frieders did not present any evidence as to the number of hours spent by its attorney, as to the type and the necessity of the services rendered, or as to the hourly rate assessed for the services performed. The burden of showing the reasonableness of the attorney fees was Frieders and Frieders did not provide sufficient proof of its claim. The Industrial Commission’s determination that the information presented was insufficient to make an award of attorney fees was therefore not erroneous.

We note that Frieders contends that the Commission should have awarded the amount of attorney fees specified in its petition for reimbursement, without justification of its reasonableness, as the reasonableness of the attorney fees was never disputed. Since Silica challenged Frieders’ right to any reimbursement and denied that it was a borrowing employer, it cannot be said that the attorney fees were not in dispute.

For the foregoing reasons, the judgment of the circuit court of La Salle County confirming the Industrial Commission’s decision is affirmed.

Affirmed.

BARRY, P.J., and McNAMARA, WOODWARD, and McCullough, jj., concur.


author: JUSTICE WOMBACHER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOUGLAS N. WASHBURN, Defendant-Appellant.
    Third District
    Nos. 3—89—0012 through 3—89—0015
    Opinion filed January 10, 1990.
    Rehearing denied June 14, 1990.
    Kenneth A. Kozel, of Petz & Kozel, of La Salle, for appellant.

      Joseph Navarro, State’s Attorney, of Ottawa (Terry A. Mertel and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOMBACHER

delivered the opinion of the court:

Following a jury trial, defendant Douglas N. Washburn, Jr., was found guilty of speeding (Ill. Rev. Stat. 1987, ch. 95hk, par. 11 — 601) and driving with a breath-alcohol concentration of .10 or more (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501(a)(1)). The defendant was found not guilty of driving under the influence of alcohol. (Ill. Rev. Stat. 1987, ch. 951/s, par. 11 — 501(a)(2).) The defendant was sentenced to a fine of $750 and a one-year term of probation. Defendant also had his driver’s license revoked by the Secretary of State. Defendant appeals.

The record reveals the following information. Defendant was southbound on Illinois Route 351 near U.S. Route 6 at approximately 1:55 a.m. on May 17, 1988. Illinois State trooper Tim Reppin was northbound on Route 351 and observed the defendant’s vehicle coming toward him. Trooper Reppin estimated that the defendant was travelling in excess of the posted 30-mile-per-hour speed limit and activated his radar unit. The radar unit indicated that the defendant was travelling 37 miles per hour. The trooper allowed the defendant’s automobile to pass, made a U-turn and eventually stopped the defendant several blocks away.

The defendant displayed behavior and symptoms consistent with being under the influence of alcohol. As a result, Trooper Reppin asked the defendant to perform several field sobriety tests. The defendant was unable to satisfactorily complete these tests. Trooper Reppin then placed the defendant under arrest for driving under the influence of alcohol and speeding.

The defendant was administered a breathalyzer test at 2:27 a.m. The test results indicated that the defendant’s blood-alcohol content, as measured from his breath, was .17. Later the same day, the defendant was charged by complaint with driving with an alcohol concentration in his breath of .10 or more.

At trial the defendant’s wife testified that at 3 a.m. on May 17, 1988, the defendant appeared to be “in control.” The defendant testified that he had been at his brother’s house the night in question and that he had consumed some alcoholic beverages prior to 11 p.m. At approximately 2 a.m., the defendant left his brother’s house to check on the closing of a tavern he owned in La Salle. The defendant testified that his difficulty in performing the field sobriety tests was the result of an operation that he had that replaced a bone in his neck with a piece of bone from his hip. The defendant also testified that he wears a bottom plate denture; that this denture retains odors; and that this was why the trooper smelled alcohol on his breath.

The jury returned a guilty verdict in regard to the speeding and driving with an alcohol concentration in the breath of .10 or more charges and a not guilty verdict in the driving under the influence charge. Defendant appeals, raising several errors.

The defendant initially contends that no probable cause existed to stop his vehicle. The defendant maintains that the stop of his vehicle was a roving patrol sham stop and was, therefore, illegal. We cannot agree.

A traffic violation generally provides sufficient basis to warrant an investigatory stop by the police. (People v. Houlihan (1988), 167 Ill. App. 3d 638, 521 N.E.2d 277.) In the instant case, Trooper Reppin testified that as the defendant’s vehicle approached, he estimated that it was travelling at a speed in excess of the posted speed limit of 30 miles per hour. The trooper activated his radar unit, which indicated that the defendant’s vehicle was travelling at a speed of 37 miles per hour.

The defendant contends that a difference of seven miles per hour in speed is not discernible. We view it differently and feel that the focus should not be on the seven miles per hour but rather on the relation of the alleged speed to the posted speed limit. In this situation the defendant was travelling 120% of the posted speed limit. We are of the opinion that many people, especially trained law enforcement officers, are able to estimate when a vehicle is travelling in excess of the speed limit. Here, Trooper Reppin had such a suspicion, activated his radar unit and confirmed that suspicion. Since the trooper stopped the vehicle for a discernible traffic violation, probable cause existed for the stop and the stop was lawful.

The defendant next raises three issues attacking the constitutionality of section 11 — 501 (Ill. Rev. Stat. 1987, ch. 95^2, par. 11 — 501). This section provides, in pertinent part:

“§11 — 501. Driving while under the influence of alcohol, other drug, or combination thereof.
(a) A person shall not drive or be in actual physical control of any vehicle within this state while:
1. The alcohol concentration in such person’s blood or breath is 0.10 or more based on the definition of blood and breath units in Section 11 — 501.2;
2. Under the influence of alcohol;
3. Under the influence of any other drug or combination of drugs to a degree which renders such person incapable of safely driving; or
4. Under the combined influence of alcohol and any other drug or drugs to a degree which renders such person incapable of safely driving.” (Ill. Rev. Stat. 1987, ch. 95V2, par. 11-501.)

This section also provides that the Secretary of State shall revoke the driving privileges of any person convicted under this section.

The defendant first argues that the revocation of a driver’s license for driving with an alcohol concentration in the breath of .10 or more is excessive and unconstitutional. The defendant asserts that “driving under the influence of alcohol” is a more culpable offense than “driving with an alcohol concentration in the breath of .10 or more.” The defendant argues that since he was only found guilty of the latter offense, it is improper to revoke his driver’s license. In effect, the defendant maintains that he is being punished for being under the influence of alcohol when he was convicted of driving with an alcohol concentration in the breath of .10 or more.

The defendant assumes that his revocation of a driver’s license is a punishment, i.e., part of his sentence. He is mistaken. The revocation of one’s driver’s license by the Secretary of State is part of the regulatory measures under the police power of the State governing traffic upon the highways. It is not part of the punishment administered by the court. People v. Finley (1974), 21 Ill. App. 3d 335, 315 N.E.2d 229; People v. Jenkins (1970), 128 Ill. App. 2d 351, 262 N.E.2d 105; People v. Kobylak (1943), 383 Ill. 432, 50 N.E.2d 465.

The State’s power to regulate traffic on its highways has long been recognized. (Chicago Park District v. Canfield (1939), 370 Ill. 447, 19 N.E.2d 376.) The exercise of such power must bear some substantial relation to the public good. (Chicago Park District, 370 Ill. 447, 19 N.E.2d 376.) We are of the opinion that the legislature properly exercised its power in making revocation of a driver’s license mandatory regardless of how section 11 — 501 is violated.

The defendant’s second contention is that the “punishment,” i.e., revocation of his driver’s license, to be imposed for driving with an alcohol concentration in the breath of .10 is unconstitutionally vague. As noted above, revocation of one’s driver’s license is not punishment for the offense, but rather a collateral regulatory consequence of a section 11 — 501 conviction. What defendant intends to argue on appeal is that section 6 — 205 (Ill. Rev. Stat. 1987, ch. 95V2, par. 6 — 205 (mandatory revocation of license or permit — hardship cases)) and section 11 — 501 (Ill. Rev. Stat. 1987, ch. 95%, par. 11— 501) are in conflict such that the defendant did not know that a violation of section 11 — 501 would result in revocation of his driver’s license. The defendant’s contention fails to withstand analysis.

Section 6 — 205 (Ill. Rev. Stat. 1987, ch. 95%, par. 6 — 205) provides, in pertinent part:

“§6 — 205. Mandatory revocation of license or permit-Hardship cases, (a) Except as hereinafter provided, the Secretary of State shall forthwith revoke the license or permit of any driver upon receiving a report of such driver’s conviction of any of the following offenses:
* * *
2. Violation of Section 11 — 501 of this Code or a similar provision of a local ordinance relating to the offense of operating or being in physical control of a vehicle while under the influence of alcohol, other drug, or combination thereof * * * ff

The defendant reads this section as “[vjiolation of Section 11 — 501 of this Code * * * relating to the offense of operating or being in physical control of a vehicle while under the influence of alcohol, other drug, or combination thereof.” The defendant contends that since operating a vehicle with an alcohol concentration in the breath of .10 or more is not present in the language, section 6 — 205 doesn’t advise the public that a section 11 — 501 conviction for operating a vehicle with an alcohol concentration in the breath of .10 or more will result in a revocation of their driver’s license.

In construing a statute, a court must ascertain and give' effect to the legislature’s intent. (Dornfeld v. Julian (1984), 104 Ill. 2d 261, 472 N.E.2d 431.) We believe the defendant has misconstrued this section. We think it is clear that the Secretary of State is directed to revoke the license of any person convicted under either section 11 — 501 or a local ordinance similar to section 11 — 501. This interpretation provides for uniform regulatory treatment throughout the State for persons convicted under section 11 — 501 or a section 11 — 501-type local ordinance.

The defendant’s third attack on the constitutionality of section 11 — 501 alleges that the aspect of the statute which proscribes driving with an alcohol concentration in the breath of .10 or more is unconstitutionally vague. The appellate court, in People v. Kappas (1983), 120 Ill. App. 3d 123, 458 N.E.2d 140, has already addressed this issue. Kappas held that the statute in question is an absolute liability offense and that the proscribed conduct, driving with a breath-alcohol content of .10 or more, is manifestly clear. We agree with this holding and therefore reject the defendant’s argument on this point.

The defendant raises several other issues on appeal. After careful consideration of both parties’ oral arguments, briefs and the record before us, we are of the opinion that these issues are without merit.

For the reasons listed above, the decision of the circuit court of La Salle County is affirmed.

Affirmed.

HEIPLE, P.J., and BARRY, J., concur.


author: PRESIDING JUSTICE HEIPLE

text:
    FIRST NATIONAL BANK OF JOLIET et al., Plaintiffs-Appellees and Cross-Appellants, v. THE COUNTY OF GRUNDY, Defendant-Appellant and Cross-Appellee (Goose Lake Association, Intervener and Defendant-Appellant).
    Third District
    No. 3—89—0274
    Opinion filed May 4, 1990.
    Rehearing denied June 15, 1990.

      David W. Neal, State’s Attorney, of Morris (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellant County of Grundy.
    Robert H. Adcock, of Adcock & Dobbs, Ltd., of Morris, and Anthony C. Raccuglia, Cynthia M. Raccuglia, and James A. McPhedran, all of Anthony C. Raccuglia & Associates, of Peru, for appellant Goose Lake Association.
    Jack M. Siegel, of Siegel & Warnock, of Chicago, for appellees.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

This action was brought by the subdivider of the proposed Botomika subdivision seeking judicial review of the Grundy County Board’s (the Board’s) denial of the subdivider’s preliminary plat. The Goose Lake Association, a group of 600 owners or residential lots in subdivisions adjoining the proposed Botomika subdivision, was granted leave to intervene as a defendant. The three-count complaint sought the following relief: count I sought a writ of mandamus to force the county into approving the preliminary plat of the subdivision; count II sought relief under section 1983 of the Federal Civil Rights Act (42 U.S.C. §1983 (1979)); and count III sought a declaratory judgment declaring that the subdivider was entitled to have the preliminary plat of the subdivision approved by the county. Prior to trial, the defendant Grundy County was granted summary judgment on count II. Following a bench trial, the trial court found that the plaintiff subdivider was entitled to relief under counts I and III, and directed issuance of a writ of mandamus addressed to Grundy County mandating approval of the preliminary plat of Botomika subdivision. Defendant Grundy County and intervenor Goose Lake Association seek reversal of the trial court’s findings with regard to counts I and III. The subdivider cross-appeals the trial court’s decision to grant the defendant summary judgment on count II. We reverse and remand the trial court decision with respect to counts I and III.

The proposed Botomika subdivision is located in a region known as the Goose Lake area in Grundy County, Illinois, which comprises approximately 10 subdivisions and includes three lakes. The proposed Botomika subdivision consists of 53 lots located on 96 acres which is immediately adjacent to.Lincoln Lake,.the largest of the three lakes within the development. On September 4, 1987, an application for approval of a preliminary plat of a subdivision for the Botomika site was submitted to the Grundy County Planning Commission (hereinafter Planning Commission). The preliminary plat of the subdivision was reviewed by Gene Shoshtrum, the director of environmental health for Grundy County. Based upon Shoshtrum’s recommendation, the subdivider revised his original plan to include the installation of drain tiles, in an effort to lower the water table.

Public hearings were then held before the Planning Commission on the proposed subdivision in October and November of 1987. During the course of these proceedings, evidence was heard from the subdivision developer and Richard Schweickert, a civil and registered engineer in charge of the design of the subdivision. Also testifying were Gene Shoshtrum on behalf of the Grundy County Health Department and Larry Pachol on behalf of the building and zoning department of Grundy County. Additionally, the intervenor, Goose Lake Association, actively participated in the hearings before the Planning Commission and produced the testimony of David Hahn, a registered professional engineer.

After hearing all of the aforementioned testimony, the Planning Commission voted to reject the preliminary plat and formally notified the Grundy County Board, in part, as follows:

“It is our opinion after listening to the testimony, particularly the testimony of the engineers from both sides, that the subdivision as designed contains inadequate drainage facilities which creates a substantial risk that septic effluent will be drained into Lincoln Lake. In our opinion this will increase the danger to the health and safety of the residents of the subdivision and the surrounding residents as well. Were Lincoln Lake to become polluted, property values in that area would be substantially diminished. The Planning Commission rejected the preliminary plat based on Section IV — C—11 of the Grundy County Subdivision Regulations. *** It was the opinion of the Planning Commission that the design of the draining system, given the relatively high density of the proposed development, threatens the pollution of the lake and the health and property of all concerned.” (Emphasis added.)

Section IV(c)(ll) of the Grundy County subdivision regulations, which the Planning Commission based its decision on, was adopted and approved as a subdivision ordinance by the Grundy County Board pursuant to its statutory authority to promulgate reasonable regulations governing subdivision plats. (Ill. Rev. Stat. 1987, ch. 34, par. 414.) Section IV(c)(ll) of the subdivision regulations of Grundy County provides in part:

“No land will be approved for subdivision which is subject to periodic flooding or which contains inadequate drainage facilities or other topographic conditions which may increase danger to health, life, or property or aggravate erosion or flood hazard unless the subdivider agrees to make improvements which will, in the opinion of the County Engineer and Plan Commission, make such land safe for development and occupancy.”

Thereafter, on December 8, 1987, the Grundy County Board, after considering the recommendation of the Planning Commission, position papers on behalf of the Goose Lake Association and the subdivision developer, and transcripts of the proceedings before the Planning Commission, voted to reject the preliminary plat.

The subdivider then filed a three-count lawsuit against Grundy County. Following a hearing, the trial court granted Grundy County’s motion for summary judgment on the Federal Civil Rights Act claim (count II), but denied all other motions for summary judgment. The transcript of the proceedings before both the Planning Commission and the county board were received by the trial judge in his consideration on the motions for summary judgment. The cause then proceeded on April 3, 1989, to a bench trial on the complaint for mandamus and declaratory judgment (counts I and III). When the county and intervenor attempted to introduce the transcript of the Planning Commission and the county board at the bench trial, the trial judge sustained the subdivider’s objection and refused to let the transcripts in. The trial court proceeded to conduct a trial de novo and made the following findings:

“Now, I don’t have any doubt that the plan commission and the County Board acted in good faith when the specter of the pollution of the lake was raised by Mr. Hahn. However, they have not had the benefit of the detailed testimony and probing cross-examination by these excellent attorneys that I have had over the past four days, and I believe that all the questions these gentlemen may have raised have been answered. All the credible expert testimony shows that the Botomika subdivision, modified as requested by County officials Shostrum and Pachol, presents] no danger of pollution to the lake.”

In view of our disposition of this appeal, it is unnecessary to set forth the lengthy testimony that was presented at the bench trial. The focus of this court’s inquiry on appeal will be to address two questions: (1) did the trial court follow the proper standard of review in ruling on each count; and (2) did the trial court consider the proper evidence in ruling on each count?

Count I sought a writ of mandamus in order to force the Grundy County Board to approve the preliminary plat of the Botomika subdivision. It is well settled that a writ of mandamus cannot be granted unless there is a clear legal right to the performance demanded. (People ex rel. American National Bank & Trust Co. v. City of Park Ridge (1960), 25 Ill. App. 2d 424.) Further, mandamus may not be used to force a public body to exercise its discretion in a particular manner unless the public body has abused its discretion, and, if there is any doubt as to the propriety of the exercise of the discretion, courts favor a denial of a writ of mandamus. (Brown v. City of Joliet (1969), 108 Ill. App. 2d 230.) The county relies heavily on the Brown decision to support its position that the trial court applied the incorrect standard of review in issuing the writ of mandamus. We agree that the facts of Brown are analogous to the instant case.

In Brown, review was sought of the trial judge’s issuance of a writ of mandamus to the Joliet city council directing approval of a subdivision plat. Similarly, in Brown, the City of Joliet passed an ordinance, pursuant to a statutory grant of authority, which provided that “ ‘every subdivision shall be provided with a storm or surface drainage system adequate to serve the area being platted.’ ” (108 Ill. App. 2d at 233.) The Broum court found that the Joliet city council, in determining that the plat submitted was not in conformity with the ordinance, properly exercised its discretion. In finding that the writ of mandamus was improperly issued, the Brown court stated:

“[CJourts are so careful of encroaching in any manner upon the discretionary powers of public officials, that if any reasonable doubt exists as to the question of discretion or want of discretion, courts will hesitate to interfere.” Brown, 108 Ill. App. 2d at 236.

Likewise, in the instant case, the Grundy County Board passed section IV(c)(ll) of the subdivision regulations of Grundy County pursuant to the statutory authority granted the county under section 25.09 of “An Act to revise the law in relation to counties” (Ill. Rev. Stat. 1987, ch. 34, par. 414). Section IV(c)(ll) necessarily grants the county board the discretion to determine whether a subdivision plat contains adequate drainage facilities. The Grundy County Board, in ruling on whether the Botomika subdivision plat had adequate drainage facilities, took into consideration the detailed testimony that both parties presented during the two Planning Commission hearings. Thus, in accord with Brown, the Grundy County Board had the discretion to deny the preliminary plat of the Botomika subdivision. Consequently, we find that the proper standard of review on the mandamus count was whether the Grundy County Board abused its discretion in denying the preliminary plat.

In determining whether there was an abuse of discretion as to count I, Circuit Judge Richard Wilder should have only considered the record of the proceedings before the Planning Commission and the Grundy County Board. Instead, the trial court excluded the transcripts of these proceedings at the bench trial, and conducted a trial de novo on count I. Hence, the trial court substituted its judgment for that of the Grundy County Board and stated that the county board did not have “the benefit of the detailed testimony and probing cross-examination by these excellent attorneys” that the trial court was privy to during the four-day bench trial. This was clearly error. A writ of mandamus will not issue when the effect of compliance is to “substitute the court’s judgment or discretion for that of the body which is commanded to act.” (People ex rel. Walsh v. Board of Commissioners (1947), 397 Ill. 293, 305.) Therefore, we reverse and remand count I, for a determination of whether the Grundy County Board abused its discretion in denying the preliminary plat, based solely on an examination of the proceedings before the Planning Commission and the county board.

Next, we address the issue of whether the trial court properly granted Grundy County’s motion for summary judgment on count II, the subdivider’s section 1983 civil rights claim. In ruling on the motions for summary judgment, the trial court had been tendered the transcripts of the proceedings before the Planning Commission and the county board. After taking note of the proceedings before the Planning Commission, the trial court agreed with the county’s contention that a civil rights action did not lie in a case where a public body makes a decision, based on a legitimate dispute between experts. In order to bring a civil rights claim, the plaintiff must allege and prove that the denial of the preliminary plat was an arbitrary and unreasonable decision bearing no substantial relationship to the public health, safety, or welfare. (Burrell v. City of Kankakee (1987), 815 F.2d 1127.) The Planning Commission, after listening to the testimony of engineers from both sides, gave its recommendation to the Grundy County Board, stating: “It was the opinion of the Planning Commission that the design of the draining system, given the relatively high density of the proposed development, threatens the pollution of the lake and property of all concerned.” Subsequently, the Grundy County Board, after considering the recommendation of the Planning Commission, position papers from both sides, and transcripts of the proceedings before the Planning Commission, decided to deny the preliminary plat. We cannot find that the trial court was incorrect in ruling that no evidence was produced to show that the county board acted in an arbitrary and unreasonable manner. Therefore, we affirm the trial court’s decision to grant summary judgment on count II.

Finally, with respect to the declaratory judgment claim (count III), we reverse and remand. Count III seeks to have section IV(c)(ll) of the subdivision regulations of Grundy County declared unconstitutional as applied to the subdivider. The issue presented in a declaratory judgment claim has been delineated by the Illinois Supreme Court:

“[T]he issue is not whether the Board of Appeals or Board of Trustees of the Village erred or abused their discretion but whether the restriction as applied to Plaintiff’s property is arbitrary, unreasonable and without substantial relation to the public health, safety, comfort, morals and general welfare.” (Stemwedel v. Village of Kenilworth (1958), 14 Ill. 2d 470, 474.)

We believe that the trial court failed to consider this issue in the instant case. The trial judge’s order stated that the declaratory judgment claim was granted “for reasons set forth in the oral opinion of the court of April 6, 1989.” Yet, in those oral findings, the trial judge did not rule that the application of section IV(c)(ll) was unreasonable in the instant case. Rather, the trial court merely determined that based on all of the testimony presented during the four-day trail, the preliminary plat of the Botomika subdivision met all State and county requirements and presented no danger of pollution to Lincoln Lake. Thus, the trial court simply weighed the evidence instead of applying the “arbitrary and unreasonable” standard.

On remand, we direct the trial court to determine whether section IV(c)(ll) was arbitrary and unreasonable as applied to the sub-divider. In applying this standard of review to count III, the trial court should exclude the record before the Grundy County Board and base its decision solely on the evidence presented during the bench trial. (Knor v. County of Madison (1986), 151 Ill. App. 3d 767.) This procedure ensures that in declaratory judgment actions defendants are permitted to present primary and direct evidence for assessment and evaluation by the trial court in accordance with the protection accorded by judicial proceedings. Smith v. County Board (1980), 86 Ill. App. 3d 708.

Lastly, v/e address whether the trial court erred in excluding the testimony of defendant’s expert witness, Donald Eddy, at the commencement of trial. The plaintiff first learned that defendant planned to call Mr. Eddy on the Friday afternoon before Monday’s trial. In excluding Mr. Eddy’s testimony, the trial court stated:

“I have made it specifically clear that everyone should have their experts disclosed and all you gentlemen told me that everybody has been deposed; there is nobody being held back; it is all out on the table. Now, here on the eve of the trial we have got the disclosure of a very material witness and it is just not fair.”

We find that based on these circumstances the trial court was within its discretion in excluding Mr. Eddy pursuant to Supreme Court Rule 220, which governs the disclosure of expert witnesses. 107 Ill. 2d R. 220.

In summary, we reverse and remand count I for a determination of whether the Grundy County Board abused its discretion in issuing a writ of mandamus. Additionally, we reverse and remand count III to determine whether section IV(c)(ll) was unconstitutionally applied to the subdivider. We affirm the trial court with respect to count II.

Affirmed in part; reversed and remanded in part.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERNEST DOWTHARD, Defendant-Appellant.
    Third District
    No. 3—89—0383
    Opinion filed May 10, 1990.

      Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Following a bench trial, the defendant, Ernest Dowthard, was found guilty of bringing contraband into a State penal institution (Ill. Rev. Stat. 1987, ch. 38, par. 31A — 1.1a) and unlawful possession of cannabis (Ill. Rev. Stat. 1987, ch. 56V2, par. 704(a)). At the sentencing hearing, the trial court vacated the judgment entered on the unlawful possession charge and sentenced the defendant to three years’ imprisonment for bringing contraband into a State penal institution. Based on section 5 — 8—4(h) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(h)), the trial court ordered that the sentence be served consecutive to the sentence entered on an earlier conviction. The defendant appeals.

The record shows that on January 22, 1989, the defendant was on pretrial release awaiting trial on a charge of unlawful possession of cannabis with the intent to deliver (Ill. Rev. Stat. 1987, ch. 56V2, par. 705(d)). On that date, the defendant went to the Peoria Community Correctional Center (Center) to deliver a message to one of the residents. The facility was located on the second floor of the building. The defendant ascended the flight of stairs to the second-floor landing and approached the visitor’s window. He was requested to fill out certain forms and turn over his driver’s license. After this was done, corrections counselor Verna Harris came out to the landing or foyer area to conduct a pat-down search of the defendant. Harris requested that the defendant empty his pockets. The defendant placed two packs of cigarettes on the counter, one of which was open. Harris inspected the open pack and discovered what appeared to be contraband inside the package. The record shows that tests conducted on the contents of the package revealed the presence of 2.1 grams of cannabis.

On appeal the defendant contends that his conviction for bringing contraband into a State penal institution must be reduced to an attempt. He contends the evidence shows he was in a public area near a penal institution at the time he was found to be in possession of cannabis, and that he did not introduce the contraband “into” that institution within the meaning of section 31A — 1.1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 31A — 1.1(a)). The defendant argues that he had not actually entered the penal institution at the time the contraband was discovered because the foyer area was a public area outside the official “glassed-in area of the Center.” We find that under the circumstances the defendant’s contention is without merit.

Both the defendant and the State discuss People v. Turnbeaugh (1983), 116 Ill. App. 3d 199, 451 N.E.2d 1016. In Turnbeaugh, the defendant drove his car onto an access road leading to a State prison. When he entered the access road he passed a sign indicating that persons and vehicles were subject to search. On this access road the defendant was stopped by a guard and his car was searched. Cannabis was found in the car. The court in Turnbeaugh dismissed the defendant’s contention that the facts did not prove that the defendant committed the offense of bringing contraband “into” a penal institution. It found no merit to the defendant’s contention that he had not brought contraband “into” a penal institution because he had not passed through the door or gate of the institution. At the time of the search he was on the grounds of the institution.

In the instant case, the entire second floor was occupied by the Center. The search was conducted on the second floor. A large sign was posted at the bottom of the stairs which stated, “All visitors are subject to search.” The defendant would have no other reason for being in this area except visiting the Center. The foyer area served no other purpose other than an entrance area of the Center. We find that under the circumstances the defendant was within a State penal institution at the time the contraband was discovered.

The defendant also contends that his three-year consecutive sentence must be vacated and the cause remanded because section 5 — 8—4(h) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(h)) is unconstitutional. Because the defendant committed the instant felony while on pretrial release for an earlier felony and had been convicted in that case, the trial court held that section 5 — 8—4(h) required the sentence in the instant case to be served consecutive to the sentence the defendant received for the earlier offense. The defendant alleges that section 5 — 8—4(h) violates article I, section 11, of the Constitution of the State of Illinois and the separation of powers doctrine. The State contends the defendant has waived this issue by raising only a due process challenge to the statute in the trial court. However, a constitutional challenge to a statute can be raised at any time. People v. Bryant (1989), 128 Ill. 2d 448, 539 N.E.2d 1221.

Section 5 — 8—4(h) provides: “If a person charged with a felony commits a separate felony while on pre-trial release, the sentences imposed upon conviction of these felonies shall be served consecutively regardless of the order in which the judgments of conviction are entered.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(h).) The gist of the defendant’s argument is that section 5 — 8—4(h) curtails the discretion of the trial court in fashioning a sentence in line with the seriousness of the offense and the rehabilitative potential of the defendant.

In People v. Belton (1989), 184 Ill. App. 3d 1001, 540 N.E.2d 990, section 5 — 8—4(h) was held not to violate due process or the separation of powers doctrine. We agree with the Belton court and find that section 5 — 8—4(h) is reasonably designed to remedy the threat posed by persons who commit crimes while on bond. As the Belton court noted, similar constitutional challenges have been rejected by the Illinois courts. (See People v. Taylor (1984), 102 Ill. 2d 201, 464 N.E.2d 1059 (upholding mandatory life sentencing provision); People v. Hartfield (1985), 137 Ill. App. 3d 679, 484 N.E.2d 1136 (upholding mandatory life imprisonment under habitual criminal statute).) In addition, we agree with the Belton court that section 5— 8 — 4(h) does not unduly infringe on judicial sentencing authority. The trial court continued to have the authority to sentence the defendant within the sentencing parameters for a Class 4 felony.

Therefore, the judgement of the circuit court of Peoria County is affirmed.

Affirmed.

HEIPLE, P.J., and SCOTT, J., concur.


author: JUSTICE SCOTT

text:
    EMILY S. SUTTON, Plaintiff-Appellant, v. KETRA A. MYTICH, Defendant-Appellee.
    Third District
    No. 3—89—0263
    Opinion filed May 18, 1990.

      Mary Lee Leahy, of Leahy Law Offices, of Springfield (Kathryn E. Eisenhart, of counsel), for appellant.

      Paul C. Estes, of Thomas & Hinshaw, Culbertson, of Peoria, and Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Nancy G. Lischer, of counsel), for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

This cause is alleged legal malpractice. The case is before us on a dismissal with prejudice of plaintiff’s original complaint pursuant to defendant’s motion to dismiss. The threshold question is whether the action is barred by the five-year statute of limitations applicable to attorney malpractice claims. If plaintiff’s action is not completely barred by section 13 — 205 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 12 — 205), then there is an issue of whether the averments of damage in the original complaint suffice to state a cause of action. The complaint of plaintiff, Emily S. Sutton, is the source of the facts deemed true for purposes of this appeal.

Emily and Robert Sutton were married in 1942, separated about October 1, 1981, and a week later, Emily and Robert signed a one-page agreement whereby Emily would receive half of Robert’s pension check plus $416 per month for travel. From these funds, Emily would pay her own expenses, the real estate taxes, utilities and related expenses on a jointly owned home in Peoria, as well as her medical expenses not covered by a Caterpillar plan. Robert kept the other half of his pension check, his social security benefits and some unidentified common stocks. Robert agreed to name Emily as the beneficiary under his will, as well as the beneficiary on his insurance policies. Any change required the consent of both parties.

On October 16, 1981, a more formal, two-page agreement was made; it continued the same arrangement for living expenses, noted that each of the parties had an auto, and provided that Emily would continue to occupy the residence through the end of the year 1982. Robert would continue his life insurance policies in force, with Emily as beneficiary.

About September of 1982, Emily employed Ketra A. Mytich, the defendant, to commence an action for legal separation. Defendant, among other things, served interrogatories upon Robert, seeking information concerning his assets. By June of 1983, an oral agreement had been reached between Robert and Emily, probably via their counsel. Defendant prepared a proposed separation agreement and, about July 11, 1983, Emily informed defendant she would not sign that document until all marital assets were accounted for, or until a more equitable division was made. Plaintiff did sign the document at defendant’s office on July 22, 1983, after defendant allegedly represented to plaintiff that the instrument had been revised. Between July 22, 1983, and August 3, 1983, plaintiff allegedly discovered no revisions were made and asked defendant not to proceed to judgment. Defendant drafted the judgment of legal separation entered August 3, 1983. This suit was filed August 3, 1988. Defendant is charged with failing to complete' discovery, advising plaintiff to sign the above agreement knowing that substantial marital assets were undiscovered and proceeding to judgment against the wishes or instructions of her client, the plaintiff. Plaintiff sought damages for her claimed loss of a proper share of marital property.

The agreement signed by Emily on July 22, 1983, and incorporated in the judgment entered August 3, 1983, recites the marriage and separation of the parties, the employment of counsel by each party, that Emily now lived in a different house in Peoria which she owned subject to a small mortgage, that she had furniture and an auto of her own, as well as one half of the net proceeds from the prior marital residence. Additionally, upon entry of judgment, Emily was to receive a cash payment of $18,253.50. The husband retained furniture, an auto, half of the prior marital residence, 1,553 shares of common stock of Caterpillar, 200 shares of common stock of Burroughs Corporation, and was responsible for the payment of certain debts. The maintenance of $1,100 per month for Emily was continued but would be adjusted upon receipt of her initial social security payment.

We note that following paragraph 4 of this agreement, there is an added hand-written provision that maintenance not go below $1,100 per month. Robert continued to be responsible for Emily’s medical expenses not paid by Caterpillar. Emily waived any rights in Robert’s estate. Paragraph 10 of the agreement recited that it could not be changed without the consent of both parties; the last part of the agreement includes a provision that it “shall be submitted to the court for approval. If approved, this document shall be made part of the judgment of legal separation and shall be binding unto the parties herein.” The last page of the judgment includes the signatures of Robert and Emily.

Initially, we note the fact that both the defendant’s motion to dismiss and the trial court order granting that motion state that the motion is brought pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). In addition to raising the statute of limitations, the motion alleges the plaintiff has failed to state a cause of action and failed to properly allege the damages claimed. The trial court did not specify on which of these grounds it was granting the motion. Failure to state a cause of action and properly allege damages are not arguments to be advanced through a section 2 — 619 motion but rather through a section 2 — 615 motion (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). (Rowan v. Novotny (1987), 157 Ill. App. 3d 691, 510 N.E.2d 1111.) These types of “hybrid” procedures have been expressly disapproved of by the courts of this State and are to be discouraged. (See Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605; Moreno v. Joe Perillo Pontiac, Inc. (1983), 112 Ill. App. 3d 670, 445 N.E.2d 1184; Davis v. Weiskopf (1982), 108 Ill. App. 3d 505, 439 N.E.2d 60.) However, in the interest of judicial economy and to avoid delay in the instant case, we do not remand because of the foregoing but consider each of the issues presented.

The parties agree that the applicable statute of limitations is found in section 13 — 205 of the Code of Civil Procedure and that the time period is five years. A cause of action for legal malpractice arises at the time the client is injured, i.e., when the attorney breaches his duty to act with due care on behalf of the client. (Docle v. Gamberdino (1978), 60 Ill. App. 3d 124, 376 N.E.2d 273; Zupan v. Berman (1986), 152 Ill. App. 3d 396, 491 N.E.2d 1349.) The “discovery” rule has been held applicable to an action for legal malpractice where the plaintiff did not discover the injury until after the statute of limitations had expired. (Kohler v. Woollen, Brown & Hawkins (1973), 15 Ill. App. 3d 455, 304 N.E.2d 677.) But, that rule would have no application here because there is no suggestion that the “discovery” occurred at a time so near to July of 1988 that the action should be permitted to go forward. See Dolce, 60 Ill. App. 3d at 129, 376 N.E.2d at 276.

Plaintiff urges that the alleged malpractice continued through August 3, 1983, hence her action is timely. In West American Insurance Co. v. Sal E. Lobianco & Son Co. (1977), 69 Ill. 2d 126, 370 N.E.2d 804, the plaintiff, an insurer, as subrogee for Home Owners Insurance, brought suit against a masonry contractor for alleged faulty construction of a chimney finished in 1967. A fire occurred in 1972 and suit was filed in 1974. Section 15 of “An Act in regard to limitations” (Ill. Rev. Stat. 1973, ch. 83, par. 16) is substantially the same as section 13 — 205 of the Code of Civil Procedure. The court held the 1974 tort action to be timely.

Plaintiff also cites Starcevich v. City of Farmington, (1982), 110 Ill. App. 3d 1074, 443 N.E.2d 737, where the court held that where a tort involves repeated injury, the statute of limitations may be treated as running from the date of the last injury or when the tortious acts cease.

In their briefs, the parties extensively address the question of whether the entry of a judgment was a condition precedent or a condition subsequent to enforcement of the separation agreement. During oral argument, plaintiff seemed to concede that if the agreement could have been enforced by either party without the entry of judgment, then her action was time barred. Certainly the purpose of any statute' of limitations is to require the action to be brought within a reasonable time so that available evidence will not be impaired. The additional function of any limitations period is to discourage delay in bringing claims. (Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill. 2d 129, 334 N.E.2d 160.) It is apparent that the oral conversations between plaintiff and defendant respecting the agreement, a critical part of any evidentiary hearing, took place in July of 1983, more than five years prior to the commencement of this action.

Inquiry was made during oral argument as to the nature of the August 3, 1983, proceeding. Plaintiff suggested that both parties submitted an agreed case to the court requesting approval of the agreement and that the court simply signed the judgment presented.

However, defendant argued orally that the August 3, 1983, hearing was more formal and evidence was actually presented. From the recitals in the August 3, 1983, judgment, defendant asserts that there was an enforceable oral agreement in June of 1983, and that, therefore, no cause of action could ever be stated by plaintiff.

We are mindful of the circumstance that the charges against the defendant are principally attributable to the period July 11 to 22, 1983. Absent the court proceedings on August 3, 1983, any claim of plaintiff would be time barred.

Nevertheless, there were significant events in defendant’s representation of plaintiff that took place on August 3, 1983. The agreement reveals that the time when plaintiff was to receive a lump sum of a little over $18,000 was upon the entry of the judgment. It is clear that there was a close relationship between the separation agreement and the approval of that arrangement in a judgment of legal separation. The contract was not enforceable until approved by the trial court. Accordingly, the statute of limitations ran from August 3, 1983. The complaint was timely filed.

The first point in defendant’s brief in this court is that the complaint fails to state a cause of action. The law is well settled that an action of this nature may not proceed in the absence of damage. In Zych v. Jones (1980), 84 Ill. App. 3d 647, 406 N.E.2d 70, one issue was whether an attorney/client relationship was ever established. If so, the defendant attorney apparently permitted a default judgment to be entered against his “client” in a case involving an automobile collision. The difficulty was that, in his action against his “lawyer,” the plaintiff failed to show he had a defense in the underlying automobile case.

Here, although plaintiff’s allegations generally inform defendant of the nature of her case, still, there is a failure to allege facts which, if proved, would support a damage award. Defendant cites cases such as Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281, 527 N.E.2d 303, and Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976. Illinois requires “fact” pleading. (Adkins v. Sarah Bush Lincoln Health Center (1989), 129 Ill. 2d 497, 518, 544 N.E.2d 733, 743.) Via her reply brief, plaintiff urges that she ought to have been given leave to amend. However, no actual amendment or amended complaint was tendered, either in the circuit court or in this court. The section 2 — 619 order entered below dismissed the complaint with prejudice and included a finding of no just cause for delaying enforcement or appeal.

Defendant urges that a failure to read a contract may never give rise to a legal malpractice claim by a client against his drafting attorney. Defendant cites no Illinois authority, but does rely on Berman v. Rubin (1976), 138 Ga. App. 849, 227 S.E.2d 802.

As between parties, in contractional relationships, a person who deliberately signs a written agreement without awareness of his obligations is nevertheless bound. (Black v. Wabash, St. Louis & Pacific Ry. Co. (1884), 111 Ill. 351; Hintz v. Lazarus (1978), 58 Ill. App. 3d 64, 373 N.E.2d 1018.) There appears to be no Illinois authority as to whether this rule is applicable to a situation where a client relies on his attorney to advise him about the contents of a contract.

Plaintiff was granted leave after oral argument to file additional authorities. We note that the Georgia Court of Appeals has decided this question differently depending on the circumstances. Unlike the instant case, the Georgia rulings were made after evidentiary hearings. In Berman v. Rubin (1976), 138 Ga. App. 849, 227 S.E.2d 802, the client, a well-educated person, had not only read the agreement but had participated in the drafting and initialed changes. Summary judgment in favor of the attorney was affirmed. In McWorter, Ltd. v. Irvin (1980), 154 Ga. App. 89, 267 S.E.2d 630, the defendant attorney admitted to a mistake on his part in preparing a deed. The trial judge had granted judgment in favor of the attorney-defendant on the liability issue based on the earlier Berman decision. The Georgia Court of Appeals pointed out that a. client has a right to rely upon his attorney. The relationship is not adversary; equities shift where the person has the right to rely on the judgment of another. The judgment below was reversed without overruling Berman because of the difference in the factual situations; mention was made of the circumstance that the Berman court had recognized that an attorney might be liable for negligence even though his client did read what was drafted. McWorter, Ltd. v. Irvin, 154 Ga. App. at 89, 267 S.E.2d at 632.

In Kushner v. McLarty (1983), 165 Ga. App. 400, 300 S.E.2d 531, an action was allowed by a medical doctor against his former attorney where the underlying contractional relationship had been between a hospital and the doctor. The lower court had granted judgment in favor of the attorney-defendant, taking the case away from a jury. An appellate court had determined the underlying agreement to be unambiguous. That circumstance did not prevent the court of appeals from reversing the trial judge who had relied on the Berman opinion.

A client ordinarily relies upon the representations of his attorney. Whether the failure of a client to read a particular document necessarily defeats a malpractice action is dependent upon the particular circumstances. We express no view as to the ultimate merits of the instant case.

The complaint was timely filed. That part of the order of April 6, 1989, dismissing plaintiff’s complaint “with prejudice,” without leave to amend, is reversed. The damage allegations in plaintiff’s complaint are insufficient to state a cause of action. That part of the order of April 6, 1989, dismissing plaintiff’s complaint is affirmed. However, the damage allegations are subject to amendment, and plaintiff should be given leave to amend or file an amended complaint.

The cause is remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded with instructions.

HEIPLE, P.J., and STOUDER, J., concur.