author: JUSTICE LORENZ

text:
    THE CITY OF CHICAGO, Plaintiff, v. CHICAGO TITLE AND TRUST COMPANY, as Trustee, et al., Defendants-Appellees (Steve Bedalow et al., Defendants-Appellants).
    First District (5th Division)
    No. 1—88—3169
    Opinion filed May 4, 1990.

      Robert A. Handelsman, of Chicago, for appellants.
    Leo Cinquino, of Righeimer, Martin & Cinquino, P.C., of Chicago (Sandra L. Hebenstreit and Celeste P. Cinquino, of counsel), for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Steve Bedalow and Delores Fritz appeal from dismissal of an action in which they sought to substitute themselves as owners of the beneficial interest to property held in a land trust which was the subject of a “quick-take” in an eminent domain proceeding.

Because the order upon which appeal is sought is not, however, appealable, we dismiss the matter for want of jurisdiction.

On August 28, 1987, the City of Chicago (City) filed an action for condemnation, pursuant to a “quick-take” under section 7 — 103 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 7 — 103), of property located at 2530-60 South Archer Avenue in Chicago in conjunction with development of a rapid transit line from the City to Midway Airport. The City’s complaint named, as defendants, Chicago Title & Trust Company (CT&T), trustee of a land trust executed November 23, 1983, in which title to the property was held; Dominic Bertucci, named in the trust agreement as sole beneficiary; Steve Bedalow; Delores Fritz; and other unknown owners.

On September 18, 1987, the City moved for immediate vesting of fee simple title to the property pursuant to section 11 — 61—la of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24,.par. 11 — 61—la). Section 11 — 61—la authorizes the City to utilize the “quick-take” procedure of section 7 — 103 of the Code of Civil Procedure in constructing or extending rapid transit lines in a prescribed area.

Following hearings on the City’s motion held October 22 and 26, 1987, the trial judge determined the City had authority to exercise the right of eminent domain over the property (see Ill. Rev. Stat. 1987, ch. 110, par. 7 — 104(b)), rendered a preliminary finding that just compensation for taking the property should be $385,840 (see Ill. Rev. Stat. 1987, ch. 110, par. 7 — 104(c)), and ordered the City to deposit that amount with the county treasurer (see Ill. Rev. Stat. 1987, ch. 110, par. 7 — 105). Based on proof the funds had been so deposited, the trial judge, by order entered December 9, 1987, vested the City with title to the property (see Ill. Rev. Stat. 1987, ch. 110, par. 7 — 105(a)).

Steve Bedalow and Delores Fritz (petitioners), brother and sister, thereafter filed an “intervening petition” in four counts seeking, essentially, to have themselves declared owners of the beneficial interest in the subject property. The petition alleged petitioners merely assigned the beneficial interest in the subject property to Bertucci as security for a loan from Bertucci in 1983. Although the loan had not been paid according to its terms, petitioners alleged they had made some payments on the loan and had paid an installment of real estate taxes on the subject property. Petitioners observed Bertucci had never paid real estate taxes on the property or filed notice of change of ownership of the property with the county treasurer. Further, petitioners alleged, Bertucci did not declare a default on the loan or notify petitioners of forfeiture. The petition recited that funds in satisfaction of the loan had been deposited with the circuit court on December 9, 1987, representing amounts due Bertucci under the loan agreement.

On June 2, 1988, petitioners moved for summary judgment on two of the four counts stated in the petition. Although not found in the record on appeal, a cross-motion for summary judgment was filed by Bertucci and CT&T on June 28,1988.

Following arguments on the motions, the trial judge issued a memorandum of his decision denying petitioners’ motion, granting the cross-motion filed by Bertucci and CT&T, and dismissing, with prejudice, the entire petition. The memorandum recited the judgment would become final upon entry of a written order to be submitted to the court. An order to that effect was entered on September 20, 1988.

After petitioners’ subsequent motion for reconsideration was denied, petitioners filed a timely notice of appeal in this court. The notice recited that appeal was sought from the memorandum of decision, the order entered on September 20, 1988, in connection with that decision, and the order denying reconsideration, entered October 3,1988.

Opinion

Actions for eminent domain are governed pursuant to sections 7 — 101 through 7 — 129 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, pars. 7 — 101 through 7 — 129). Within those provisions, the Code expressly provides limited circumstances under which an appeal may be taken from interlocutory orders entered in conjunction with such actions. Section 7 — 104(b) permits an appeal, in conjunction with a preliminary finding of just compensation, from an order pertaining to the plaintiff’s authority to exercise the right of eminent domain. (Ill. Rev. Stat. 1987, ch. 110, par. 7 — 104(b).) Section 7 — 123(a) also permits an appeal from the court’s finding as to the rights of the parties where “plaintiff is not in possession pursuant to an order entered under the provisions of [sjection 7 — 105” (entitling plaintiff to possession of the property condemned upon deposit with county treasurer of the preliminarily determined just compensation). (Emphasis added.) Ill. Rev. Stat. Í987, ch. 110, par. 7 — 123(a).

However, neither of those two express provisions applies to the instant case. The petition did not challenge the trial judge’s determination that the City had authority to exercise the right of eminent domain over the subject property and the City does possess the subject property pursuant to an order entered under section 7 — 105. Instead, the instant appeal is from an order which, at most, disposes of only a part of the underlying controversy, namely, petitioners’ right or status to share in the compensation, as finally determined, paid by the City for the subject property.

Further, in determining the nature of the petition before us, we note that its designation as one for intervention is a misnomer. Petitioners were named defendants as interested parties in the underlying eminent domain action by the City involving the subject property. As such, section 7 — 124 of the Code (see Ill. Rev. Stat. 1987, ch. 110, par. 7 — 124), which permits persons not made parties to participate in eminent domain proceedings, where such individuals have an interest, has no bearing in the instant case. Essentially, the petition constitutes a cross-claim, which the Code directs shall be called a counterclaim (see Ill. Rev. Stat. 1987, ch. 110, par. 2 — 608(a)), by petitioners against Bertucci and CT&T within the context of the City’s eminent domain proceeding. We observe that the larger action by the City remains pending as there has been, as yet, no determination of final compensation to be paid.

Generally, the dismissal of such a pleading, where leave is not given for further amendment, and where the plaintiff’s related action is still pending, is not appealable absent a finding by the trial judge pursuant to Supreme Court Rule 304(a) that there is no just reason for delaying enforcement or appeal. (107 Ill. 2d R. 304(a); see also Carter v. Chicago & Illinois Midland Ry. Co. (1988), 119 Ill. 2d 296, 518 N.E.2d 1031; Deerfield Management Co. v. Ohio Farmers Insurance Co. (1988), 174 Ill. App. 3d 837, 529 N.E.2d 243.) We observe subsection (b) of Rule 304 provides for exceptions to situations requiring the special finding, including orders determining the status or rights of a party not appealable under Rule 307(a), which rule includes, in subsection (7), orders “determining issues raised in proceedings to exercise the right of eminent domain under section 7 — 104 of the Code” (107 Ill. 2d R. 307(a)(7)).

However, the exception to the necessity of a special finding under Rule 304(a), provided through consideration of Rule 304(b)(2) in conjunction with Rule 307(a)(7), finds no application in the instant case. The exception contained in subsection (a)(7) of Rule 307 was intended only to include, within provisions for interlocutory appeals set out in supreme court rules, the circumstances under which other statutory provisions permitted interlocutory appeals, consistent with the policy of addressing all matters of appellate practice in the rules. (Ill. Ann. Stat., ch. 110A, par. 307, Historical and Practice Notes, at 261 (Smith-Hurd 1985).) In other words, the only pertinent exceptions available to petitioners in the instant case from the requirement of the special finding pursuant to Rule 304(a) are the provisions of the Code, as set out above, which permit interlocutory appeals under section 7 — 104(b) or 7 — 123(a).

Because the instant appeal is not from the type of an order contemplated under either section 7 — 104(b) or section 7 — 123(a) and because the trial judge did not enter a special finding pursuant to Rule 304(a), the instant appeal is premature. In the interest of promoting judicial economy, however, if the parties successfully move to have the requisite finding made by the trial judge, the parties may move this court to consider the appeal on the existing briefs and record. See J. Eck & Son, Inc. v. Reuben H. Donnelley Corp. (1989), 188 Ill. App. 3d 1090, 545 N.E.2d 170.

Appeal dismissed.

COCCIA, P.J., and GORDON, J., concur.

       Justice R. Eugene Pincham participated in this case prior to his resignation. Since that time, Justice Joseph Gordon was designated the third member of the panel and has read the briefs and record and has listened to the oral argument tape.


source: Caselaw Access Project

author: JUSTICE RAKOWSKI

license: Public Domain

text:
    KANKAKEELAND COMMUNITY ACTION PROGRAM, INC., Plaintiff-Appellant, v. THE DEPARTMENT OF COMMERCE AND COMMUNITY AFFAIRS et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—87—3487
    Opinion filed May 4, 1990.

      Foss, Schuman, Drake & Barnard, of Chicago (George C. Pontikes, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Karen S. Rosenwinkel, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Plaintiff Kankakeeland Community Action Program, Inc. (KCAP), brought an administrative review action and sought to reverse the decision of defendant Illinois Department of Commerce and Community Affairs (the Department), which terminated Federal funds distributed through the Department to three KCAP programs. The circuit court affirmed. Plaintiff appeals.

The issues presented on appeal are: (1) whether the Department’s action to terminate grant funding was a violation of constitutional due process or required Federal statutory procedure; (2) whether the regulations under which the Department terminated grant funding violate constitutional due process or Federal statutes for termination procedure; (3) whether the Department failed to provide proper notice in violation of Illinois statute; (4) whether the Department violated Illinois law by failing to provide adequate discovery; and (5) whether the Department had the authority to order an agency-wide audit at the time it terminated the KCAP grant. We affirm on all issues.

The undisputed facts are that the Department is a grantee of Federal funds from the United States Department of Health and Human Services (DHHS). In 1986 and several years prior, the Department entered grant agreements with KCAP for the Illinois Home Energy Assistance Program, the Community Services Block Grant Program, and the Illinois Weatherization Assistance Grant Program. Under these agreements, the Department would grant Federal funds to KCAP which, in turn, would use the money to support job training, energy assistance, emergency medical care and other services for the poor.

The weatherization grant could have been funded by either DHHS or the Department of Energy (DOE). According to the “Notice of Grant Award” for that grant, KCAP would receive no money from DOE and $266,452 from DHHS.

Each grant agreement provided the Department with the right to audit KCAP “as often as deemed necessary” and to “examine corporate books and records which may be necessary to determine the ability of the grantee to safeguard the funds.” The Department also reserved the right to terminate the grant if KCAP failed to comply with the conditions of the grant. Finally, each agreement said: “Payments made to Grantee or recoveries by the Department shall be in accord with the legal rights and liabilities of the parties.”

Acting under the requirements of Federal and State statutes, the Department reviewed KCAP’s books in April 1985, and began communicating about certain problems in May. Finally, the Department notified KCAP that it would terminate the three grants effective February 3, 1986, unless KCAP sent permission authorizing a public accounting firm to conduct an agency audit scheduled to begin on that date. Since KCAP did not send this permission, the Department terminated funding.

The Department then sent a letter to DHHS requesting that the agency review the termination of the community services block grant under section 676(a) of the authorizing act, the Community Services Block Grant Act (Act) (42 U.S.C. §9905(a) (1986)). DHHS wrote to the Department, stating that under section 675(c)(ll) of the Act no Community Action Agency (CAA) funding could be terminated for cause unless notice of such termination had been given and an opportunity for a hearing on the record had been provided. On February 25, 1986, the Department responded by rescinding the termination of this grant, notifying KCAP that the funding had been suspended, and giving KCAP until March 1 to request a hearing pursuant to section 675(c)(ll). 42 U.S.C. §9904(c)(ll) (1986).

On February 28, 1986, KCAP requested an administrative hearing. The Department notified DHHS of this development and informed the Federal agency that funds to KCAP would be suspended until the hearing. On March 13, DHHS replied, stating that it believed section 675(c)(ll) of the Act means that funding cannot be stopped until after a notice, hearing, and final review by DHHS. The Department wrote back on March 18 noting the possible liability which the State of Illinois might assume pursuant to section 675(g) if it allowed KCAP to expend monies in violation of State and Federal law. (See 42 U.S.C. §9904(g) (1986).) The Department stated it would not rescind the suspension unless DHHS sent assurances that the State would not be liable for monies misspent by KCAP.

The Department served KCAP with its initial notice of hearing and statement of charges sometime prior to March 28. On April 1, the hearing officer granted KCAP’s motion to strike this notice on the grounds that the notice did not comply with the requirements of section 676(a). On April 14, the officer ordered the Department to notify KCAP of the specific charges and cite relevant sections of statutes and Department rules. That order also stated that the hearing date was set for April 24, 1986, by stipulation of the parties.

On April 14, the Department sent a second notice charging KCAP with failure to: (1) permit an audit commissioned by the Department; (2) safeguard grant funds and assure proper expenditures; and (3) assure that KCAP operated under the direction of a properly constituted Community Action Agency Board. The notice also specified the relevant grant provisions, regulations and statutes. On April 15, KCAP made a second motion to strike the notice, which was denied.

On April 15, KCAP served a motion for production of documents, requesting the complete Department file on KCAP, the Department plans for the three KCAP grants, and information about the existence of and special conditions for all Energy Assistance Block Grants, Illinois Weatherization Assistance Grants and Illinois Community Services Grants in existence in 1986 for any Illinois Community Action Agencies. This motion was denied.

KCAP renewed the motion at a hearing on April 24. At that time, KCAP admitted that it had draft copies of the State plans for these KCAP grants. The parties stipulated that these were, in fact, the operating plans. The Department argued that the other materials requested lacked relevance to KCAP’s case and producing these documents would place a severe burden on the Department. The hearing officer then denied the motion but assured KCAP he would order the production of additional documents if subsequent testimony showed they might be relevant.

Administrative hearings were held on April 24, May 2, and May 9. During the hearings, KCAP claimed that the Code of Federal Regulations for grants under DOE should apply to the procedures for suspending and terminating the KCAP weatherization grant. (See 10 C.F.R. §§600.121, 600.122 (1986).) After reviewing the grant contract and hearing testimony about the funding for this grant, the Department decided that DOE code provisions did not apply because the weatherization grant in question was funded entirely by DHHS.

KCAP also asserted that the Department had no authority under statutes in existence at the time to demand an agency-wide audit of KCAP’s books. The hearing officer and Director Hedges found that this authority was implicit in the grant agreement and in Federal statutes authorizing the grant.

On June 23, 1986, Hedges issued the final decision, which terminated the energy assistance and weatherization grants directly and terminated the community services grant effective upon confirmation of DHHS.

I

Plaintiff first contends that the Department’s action to terminate grant funding without a notice and hearing terminated KCAP’s property rights in violation of constitutional due process under the fourteenth amendment and statutory procedure under legislation that authorized the grants.

KCAP contends that the Department violated due process by terminating its funds on February 3, 1986. Therefore, KCAP maintains, this action is invalid.

According to facts in the record, the Department began investigating KCAP in April 1985 and notified KCAP about problems in May. Finally, on January 26, 1986, the Department notified KCAP it would terminate funds on February 3 unless KCAP sent permission for an audit scheduled to begin on that date.

Subsequently, the Department acknowledged that it could not terminate funds without notice and the opportunity for a hearing. On February 25, the Department rescinded the grant termination, suspended funds, and notified KCAP that it had until March 1 to request a hearing.

KCAP has also argued that Federal code provisions for the suspension of weatherization grants under the Department of Energy apply. However, the grant funding document clearly states that this particular grant was funded solely by DHHS, and the record contains no evidence to the contrary. Therefore, we agree with the hearing officer that DOE code provisions do not apply.

Three days of hearings were held in April and May followed by a decision to terminate funds announced on June 23,1986.

In sum, KCAP did not receive a notice and hearing before funds were terminated on February 3, 1986. KCAP bases its constitutional claim on that undisputed fact. KCAP ignores another undisputed fact, namely, that the Department corrected this error by serving notice and holding the hearings which resulted in a second termination on June 23. In effect KCAP is suggesting that once the Department makes any procedural error while attempting to terminate a grantee for cause, then the Department must cease this effort and allow the grantee full grant funds regardless of whatever good cause there may be for termination. We cannot accept such a conclusion.

For these reasons, we hold that the Department did not violate constitutional due process or statutory procedure when it suspended the DHHS grants to KCAP on February 25, 1986, and terminated them on June 23.

What remains is the effect of the Department’s improper attempt to terminate the grant February 3, 1986, which was rescinded and replaced by suspension on February 25. Plaintiffs did not claim damages for funds lost in the interval between the invalid termination and the suspension, nor do the briefs or grant documents suggest how these could be calculated.

II

Plaintiff claims as a second issue that the Department regulations for termination violate statutory procedures and constitutional due process. In its statement of issues, KCAP phrased this issue as a direct challenge to Illinois regulations as written. In the text of its brief, KCAP challenged the law as applied in the action terminating the grants here, which action was discussed under issue one. Now we will consider plaintiff’s stated issue, whether the regulations per se are invalid.

The Illinois Administrative Code provides that if a grant recipient “fails to comply with the terms and conditions of the grant award,” the Department can “suspend the grant and withhold further payments” pending the grantee’s corrective action or the Department’s decision to terminate. (47 Ill. Adm. Code §1.110(a) (Supp. 1986).) Furthermore, if the Department determines that a grant recipient has failed to comply with terms and conditions, the Department can terminate the grant and then notify the grantee in writing of this decision, the date, and the reasons. 47 Ill. Adm. Code §1.110(b)(2) (Supp. 1986).

Administrative regulations are presumed valid under statutes affected by the regulations unless these rules are clearly arbitrary, unreasonable or capricious and persons challenging the validity of regulations bear the burden of proving the invalidity. (Begg v. Board of Fire & Police Commissioners (1984), 99 Ill. 2d 324, 331-32, 459 N.E.2d 925, 928.) When courts interpret these rules in conjunction with a statute, they should construe the rules “together with the statute to make, if possible, an effectual piece of legislation in harmony with common sense and sound reason” and judge these rules invalid only to the extent that they conflict with a statute. Matthews v. Will County Department of Public Aid (1987), 152 Ill. App. 3d 400, 402, 504 N.E.2d 529, 531.

The regulation at issue here incorporates the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1987, ch. 127, par. 1000 et seq.). (47 Ill. Adm. Code §1.140 (Supp. 1986).) That Illinois act requires notice and opportunity for a hearing and incorporates any specific features provided or precluded by other relevant law. (Ill. Rev. Stat. 1987, ch. 127, par. 1010.) Thus the Illinois act provides its own rules as a minimum and incorporates any relevant procedural requirements from other statutes. In this case, the other procedures are outlined in the statutes which authorize grant funding, and these statutes are cited in the grant documents.

KCAP also states that the Illinois regulations do not include the notice and procedure requirements and the suspension limits of 10 C.F.R. §§600.121(a) and 600.122 (1987) that apply to funding under DOE. As discussed in issue I, however, the regulations for DOE do not apply to the weatherization grant in issue because it was funded entirely by DHHS.

Second, legislative enactments are presumed valid under both the United States and Illinois constitutions, and the party challenging them on constitutional grounds must show that they are unreasonable, arbitrary, and with no foundation in police power. People v. Copeland (1980), 92 Ill. App. 3d 475, 479-80, 415 N.E.2d 1173, 1177-78.

KCAP contends that Illinois rules for grant termination violate both the United States and Illinois constitutions by allowing a deprivation without due process. (U.S. Const, amend. 14; Ill. Const. 1970, art. I, §2.) KCAP relies on Goldberg v. Kelly (1970), 397 U.S. 254, 25 L. Ed. 2d 287, 90 S. Ct. 1011, and argues that the State may not terminate a property interest prior to notice and the opportunity for a proper hearing.

The Illinois Administrative Code (Code) allows the Department to terminate a grant if the grantee fails to comply with the terms and conditions of the grant. (47 Ill. Adm. Code §1.110(b)(2)(A) (Supp. 1986).) That appears to be a reasonable way to safeguard public funds from misuse by grantees. Furthermore, as we have already described above, the Code incorporates other relevant law. (47 Ill. Adm. Code §1.140 (Supp. 1986).) This law includes provisions for notice leading to a formal hearing on the record and any other due process requirements under relevant State or Federal law. (Ill. Rev. Stat. 1987, ch. 127, par. 1010.) In effect, the Illinois Code sets a minimum standard but also directs the Department to meet any relevant higher standard, including State and Federal constitutional requirements for due process.

In sum, the Illinois Code incorporates relevant provisions for due process from other legal sources. For this reason, we find that the Code does not violate the due process requirements of Federal statutes or either the United States or Illinois constitutions.

Ill

Third, KCAP claims that the Department violated the Illinois Administrative Procedure Act by failing to provide KCAP with proper notice and ■ a statement of charges before a hearing scheduled for April 11, 1986.

Under the Illinois Administrative Procedure Act, parties in contested cases are entitled to “reasonable” notice which includes “a short and plain statement of the matters asserted.” (Ill. Rev. Stat. 1987, ch. 127, par. 1010(a)(4).) Furthermore, the charges for an administrative hearing do not need to be drawn with the precision required for judicial pleadings but “need only be drawn sufficiently so that the alleged wrong-doer is reasonably apprised of the case against him to intelligently prepare his defense.” Rasky v. Department of Registration & Education (1980), 87 Ill. App. 3d 580, 585, 410 N.E.2d 69, 75.

On April 1, the Department hearing officer granted KCAP’s motion to strike the first notice on the grounds that it did not comply with the requirements of the Federal grant. On April 14, the officer ordered the Department to serve notice with “further details concerning the specific charges” and sections of statutes or rules which related to the specifics of the formal hearing. Then, by stipulation of the parties, the hearing officer set the hearing date for April 24, 1986. The Department sent the second notice on April 14, charging KCAP with failure to permit the audit, failure to safeguard grant funds and failure to operate with a properly constituted board.

Since the notice dated April 14 did list the basic charges against KCAP and was a sufficient listing under the standards for administrative hearings, the deficiency in notice was cured before KCAP had to defend itself when the hearings actually began on April 24. Furthermore, since KCAP knew about the basic problem at issue here since at least May 1985, it had adequate warning in fact as well as in law to prepare a defense to the Department’s charges.

For these reasons, we find that the Department’s notice to KCAP did not violate Illinois law.

IV

Plaintiff’s fourth contention is that the Department’s hearing officer violated Illinois common law and the Illinois Freedom of Information Act (FOIA) when he denied KCAP’s motion to compel the production of documents.

When reviewing the actions of an administrative tribunal, the trial and appellate courts are limited to finding whether the administrative body’s actions were “arbitrarily in clear abuse of its discretion.” Mead v. Board of Review (1986), 143 Ill. App. 3d 1088, 1094-95, 494 N.E.2d 171, 176.

Parties in administrative proceedings should use prehearing discovery as parties in trials use pretrial discovery, that is, to aid in preparing a case and eliminating surprise so that the outcome can rest on truth rather than on the maneuvers of counsel. (Wegmann v. Department of Registration & Education (1978), 61 Ill. App. 3d 352, 356, 377 N.E.2d 1297, 1301.) Additionally, parties can request State documents through the FOIA (Ill. Rev. Stat. 1987, ch. 116, par. 201 et seq.).

KCAP asserts that the hearing officer denied discovery in violation of both common law and the FOIA. The record shows that KCAP requested production of documents from the Department twice and the requests were denied by the hearing officer both times. The record also shows that both parties stipulated that KCAP had draft copies of the documents related to the grants at issue, and these drafts were in final form. Furthermore, the hearing officer stated he would request production of any other documents should their use appear relevant during the course of the hearings. The hearing officer also held that further production of all documents from all Federal grants for all Community Action Agencies administered by the Department in 1986 would place an unreasonable burden on the Department.

The record, at least as cited by KCAP, does not show any requests made under the FOIA.

The facts on record show that KCAP did, in fact, have the documents it needed to defend itself and avoid surprise. It also had the assurance of further production should that appear necessary during the course of hearings. Under the circumstances, the actions of the hearing officer in denying the production of documents which would have burdened one party without benefiting the other was not unreasonable.

For these reasons, we do not find that the hearing officer abused his discretion when he denied KCAP’s motions for additional discovery.

V

For its fifth issue, KCAP argues that the Department did not have the authority to order an agency-wide audit at the time it terminated the KCAP grant.

An agency does not have any greater power than that conferred by its enabling legislation. (Village of Lombard v. Pollution Control Board (1977), 66 Ill. 2d 503, 506, 363 N.E.2d 814, 815.) Agency action which exceeds this authority is void. (Oak Liquors, Inc. v. Zagel (1980), 90 Ill. App. 3d 379, 380-81, 413 N.E.2d 56, 58.) Furthermore, courts exercise independent review over an agency decision which interprets a question of law and cannot let a decision stand which is based on an erroneous construction of a statute. Carson Pirie Scott & Co. v. Department of Employment Security (1987), 164 Ill. App. 3d 530, 535, 518 N.E.2d 161, 164.

At the time when the Department began investigating KCAP, Illinois law did not grant it explicit authority to conduct an agency-wide audit of a grantee. The Community Services Block Grant Act, however, gave the Department authority to “provide that fiscal control and fund accounting procedures *** as may be necessary to assure the proper disbursal and accounting for Federal funds paid to the State under this chapter.” (42 U.S.C. §9904(c)(9) (1986).) The other relevant acts provided similar authority. See 42 U.S.C. §§6867(c), 8624(b)(10) (1986).

KCAP now contends that this language limited any Department investigation solely to the accounts for a particular Federal grant. KCAP admits that the grant agreements allowed the Department “to have full access to any pertinent books, documents, papers and records of the Grantee involving transactions related to this Grant.” KCAP, however, interprets this agreement to mean that .the Department was limited to fiscal accounts of a particular grant. Furthermore, KCAP maintains, if the grant agreement is ambiguous and could be interpreted more broadly, the court should construe the contract against the Department which chose the words and was responsible for any ambiguity.

The Department claims that the language of the Federal grants was broad enough to authorize an agency-wide audit if this was necessary to safeguard Federal funds. Furthermore, the many discrepancies in the KCAP accounts appeared to cover more than a single grant. Only an agency-wide audit could provide the safeguard required by the Federal statutes.

The hearing officer concluded that the statutes which require the Department to safeguard funds also give the Department the authority to conduct the necessary audit. This appears to be a reasonable construction of the statute.

For these reasons, we find that the hearing officer did not err in concluding that the Department operated -within its statutory authority when it requested an agency-wide audit from KCAP.

For the reasons stated above, the judgment of the trial court is affirmed.

Judgment affirmed.

LaPORTA, P.J., and EGAN, J., concur.


author: JUSTICE EGAN

text:
    GEORGE YAKSIC, Plaintiff-Appellant, v. CECO CORPORATION et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—88—3259
    Opinion filed May 4, 1990.

      Anesi, Ozmon, Lewin & Associates, Ltd., of Chicago (Jeffrey M. Shancer and James J. Morici, Jr., of counsel), for appellant.
    Lord, Bissell & Brook, of Chicago (Robert E. Sweeney, Jr., Hugh C. Griffin, and Paul J. Peralta, of counsel), for appellees.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, George Yaksic, filed a personal injury action against the defendant, Ceco Corporation (Ceco), for damages sustained when he tripped and fell on metal banding while he was working on the second-floor deck of a Chicago Transit Authority garage which was under construction in Chicago. He alleged that the metal banding belonged to Ceco. Ceco denied the allegation. The judgment entered summary judgment in favor of Ceco. The only issue is whether the record established, as a matter of law, that the banding was not owned by Ceco.

On August 9, 1982, Walsh Construction Co. (Walsh) was the general contractor for the construction of a Chicago Transit Authority parking garage located at Cumberland Avenue and the Kennedy Expressway in Chicago. The plaintiff was an ironworker employed by Walsh.

Ceco was a decking subcontractor that installed plywood decks before Walsh installed its reinforcing steel and before it poured its concrete to complete the deck. By the terms of its contract, Ceco was required to keep the building and premises clean of debris arising out of its work. However, it was not responsible for unclean conditions caused by others.

On August 9, 1982, the plaintiff was walking along the plywood second floor of the garage carrying support steel rods and steel ties. At approximately 11 a.m., as he approached his crew carrying a handful of steel ties, his feet became entangled in some banding; he fell and was injured. He described the banding as “maybe one inch wide, like a sixteenth of an inch thick *** [and] three or four feet long.”

In its motion for summary judgment Ceco introduced the following: (1) the deposition testimony of the plaintiff describing the metal band he tripped over; (2) the deposition testimony of Gerald Johnson, a Walsh employee, that he saw the plaintiff trip over one piece of metal banding. He described the banding as “basic band material, approximately one inch wide, maybe an inch and one-half *** thin, sixteenth of an inch thin material banding”; (3) the affidavit of Joseph Rothenberger, Ceco’s foreman at the site, that the metal banding used by Ceco was only three-quarters of an inch wide and less than one-thirty-second of an inch thick and that the banding used by Walsh was V-k or Vk inches wide and one-sixteenth of an inch thick; and (4) the deposition testimony of William Freiberg, Walsh’s foreman at the site, that Ceco bands were less wide than Walsh bands and that Walsh used bands at least one inch wide.

In his response to the motion for summary judgment, the plaintiff introduced excerpts from the depositions of Rothenberger, Johnson, the plaintiff himself and Freiberg. The plaintiff testified that no one beside Ceco had the kind of banding that he tripped over. He also testified that, in addition to the metal banding, he also tripped over “scrap, two by four cut-outs and plywood cut-outs.”

Rothenberger testified that Ceco’s plywood came banded, that Ceco was responsible for and did remove the banding at the jobsite; that after Ceco completed its work, there would be debris such as black metal bands in the decking area; that scraps and plywood were by-products of its work; that Ceco was aware of the danger of such debris and was obligated to clean up all its debris.

Johnson was a working union steward. He testified that on more than one occasion he complained to Ceco about its banding or scrap wood on the deck. He complained about the banding to Ceco on the day of the accident about 8:30 or 9 a.m. Johnson told the Ceco representative to clean up the debris; he mentioned the banding, all the cut-offs, all Ceco’s “garbage up there.” Ceco’s foreman said that he would get somebody on it. No one cleaned up the material between the time Johnson complained and the time Yaksic fell.

The judge first denied the motion for summary judgment, and in the order of denial noted that there was no evidence that Ceco had cleaned up the area where the accident occurred. Five weeks later, Ceco submitted another affidavit of Rothenberger in which he swore that he had personal knowledge that Ceco had removed all of its debris from the site before the accident occurred. The judge later heard Ceco’s motion to reconsider and granted the motion for summary judgment.

The defendant’s position capsulized is, first, that the testimony of the plaintiff and Johnson established, as a matter of law, that the banding that caused the accident was larger than the banding used by Ceco and, second, that Rothenberger’s affidavit established, as a matter of law, that Ceco had cleared away its debris before the accident occurred. We disagree with both parts of the defendant’s position.

The first question is whether a fact finder could conclude that the banding was Ceco’s. We believe that a fact finder could so conclude. The plaintiff testified as follows:

“A. I got tangled up in some banding and some scrap that was there, some two-by-four cut-outs or plywood cut-outs. It was just a little scrap from the job.
Q. You mentioned some banding?
A. Yes. It wasn’t our nine wire from our steel. It was like the carpenter’s, any time they have wood come up from the job, they usually have it banded with this thick one-inch, two-inch wide black banding.
It’s like a 16th of an inch thick. It’s just to hold it together. When I was carrying them, I got tangled up. It wasn’t a big a pile of garbage. It was just strewn about.
* * *
Q. What, specifically, was banded with the banding?
A. Four-by-fours come in banded. Two-by-fours come banded. Sheets of plywood come banded. None of our steel comes banded. All of our steel usually has nine wire on it, real thick wire.
* * *
Q. Is there any way that you could tell that this particular banding that you got tangled up in came from the carpenters?
A. Nobody else had it. None of our steel come [sic] in there. I seen [sic] their lumber all banded up, big bundles. I am talking about five, six feet high, four-by-fours all in a big bundle.
That’s all that’s holding it — banding. There’s [sic] long pieces and short pieces. It all depends where they cut them when they open them up or how big the bundles are.”

Contrary to the defendant’s argument, the plaintiff’s testimony that he tripped over Ceco’s banding is not conclusional. The plaintiff had seen the banding used by Ceco on previous occasions, and he saw the banding that he tripped over.

Freiberg was shown and identified banding used by Walsh and banding used by Ceco. The Walsh banding was 1W inches wide; the Ceco banding was three-quarters of an inch wide. Freiberg did not recall ever seeing a band like the Walsh band lying on the second-floor deck where the accident occurred. The Walsh carpenters cut lumber on the ground level; Ceco carpenters cut lumber at the deck on the second floor. The steel that the plaintiff picked up was not banded; it was tied with Number 9 wire. (It is conceded by Ceco that the accident was not caused by Number 9 wire.)

We do not accept the defendant’s contention that the testimony of the plaintiff and Johnson established that the banding was not Ceco’s. The plaintiff said the banding was “maybe one inch wide”; Johnson said it was “approximately an inch wide, maybe an inch and a half.” (Emphasis added.) It is true that they expressed an estimate as to the size of the banding that caused the accident, but their testimony was just that — an estimate, or an opinion. (The bandings that were shown to Freiberg by the defendant were not shown to the plaintiff or Johnson.) To hold now that the plaintiff and Johnson were able to distinguish between banding one inch wide and three-quarters of an inch wide and a thickness of one-sixteenth of an inch and one-thirty-second of an inch is to impute to them micrometrical vision. We judge, therefore, that a question of fact remains as to the size of the banding that caused the accident.

The next question is whether a fact finder could conclude that Ceco had not cleared away its debris before the accident. Again we believe that a fact finder could so conclude. In support of its position, the defendant relies on an affidavit of Rothenberger.

Rothenberger gave a deposition and submitted two affidavits. In his deposition he said he had no personal knowledge or recollection whether there was any accumulation of Ceco’s debris in the area where the plaintiff fell. He had “no idea” as to the condition of the second-floor deck of the garage on the day of the accident. He did not know whether Ceco had completed its carpentry work at the time of the accident.

Ceco would strip forms after the concrete was poured. Stripping created debris. Pieces of wood would have to be taken down and Ce-co’s laborers would have to clean up the forms. A lot of debris was left over and had to be cleaned up after laying the deck before concrete was poured. The debris included bands and cut-outs. Ceco’s laborers had to clean up the area as soon as possible after the deck was laid because the concrete would have to be poured. Walsh was the one that really pushed the clean up.

In his first affidavit, which was attached to the motion for summary judgment, Rothenberger swbre that the metal banding used by Ceco was three-quarters of an inch wide and less than one-thirty-second of an inch thick and that Walsh used banding that was wider and thicker than the Ceco banding.

After the judge denied the motion for summary judgment and pointedly noted that he found no evidence as to whether Ceco cleaned up the area where the accident occurred, Ceco submitted a second affidavit of Rothenberger. That affidavit recited, in part, as follows:

“After each section of deck was installed, I made sure that all debris was cleared off the deck.
I have no personal knowledge as to the condition of the upper deck on August 9, 1982 in the area where George Yaksic was allegedly injured. However, I do have personal knowledge that all debris had been cleared off that section of deck after Ceco installed it and before the ironworkers brought their own material onto it. There were no pieces of banding on the deck after Ceco installed it and before the ironworkers began working on it.”

The defendant asserts that the belated affidavit of Rothenberger was uncontradicted. That assertion ignores the testimony of Johnson. Johnson said that scrap material on the deck was “material left over from Ceco’s laying the deck.” He said there was no debris on the deck from Walsh’s work. Approximately two hours before the accident Johnson told a Ceco representative to clean up the debris; he specifically mentioned the banding. The Ceco foreman said that he would get somebody on it, but no one cleaned up the material between the time Johnson complained and the time the plaintiff was injured. Johnson’s testimony that he had complained to Ceco on a number of occasions about debris is corroborated to some extent by Rothenberger, who testified that Walsh was the one who really “pushed the cleanup.”

We need not pass on the weight of the second affidavit of Rothenberger when compared with his deposition nor the conclusional aspects of his affidavit. Even if we were to assume that Rothenberger swore that he actually saw the Ceco workers clear away the debris before the accident, and even if he had never admitted in a deposition that he had no personal knowledge whether there was any accumulation of Ceco’s debris in the area where the plaintiff fell, we would still be required to hold that whether Ceco had cleaned up its own debris was a question of fact to be decided by a jury, which would weigh the credibility of Johnson and Rothenberger. We hold, therefore, that Johnson’s testimony does contradict the affidavit of Rothenberger.

In passing on summary judgment motions, the evidence must be construed strictly against the moving party and liberally in favor of the opposing party. (Wha Ja Yu v. Neenah Foundry Co. (1987), 164 Ill. App. 3d 975, 518 N.E.2d 635.) The right to summary judgment must be free from all doubt. (Wright v. Adonis Compania Naviera, S.A. (1978), 59 Ill. App. 3d 108, 376 N.E.2d 4.) In construing the evidence liberally in favor of the plaintiff, we conclude that any right to summary judgment on behalf of the defendant would not be free from all doubt.

In arriving at our decision, we have not considered an affidavit of Freiberg which was attached to the plaintiff’s brief but had not been made part of the record on appeal. See Weber v. Village of Carol Stream (1984), 129 Ill. App. 3d 628, 472 N.E.2d 1203.

For the reasons given, the judgment of the circuit court is reversed and remanded for further proceedings consistent with this opinion.

Judgment reversed and remanded.

McNAMARA and RAKOWSKI, JJ., concur.


author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS McMANUS, Defendant-Appellant.
    Second District
    No. 2—88—0222
    Opinion filed May 24, 1990.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Thomas McManus, was convicted of eight counts of theft by deception (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1(b)) and one count of attempted theft by deception. The trial court sentenced defendant to two consecutive five-year terms of imprisonment on the theft by deception counts, to run concurrently with a 364-day sentence on the attempted theft by deception count. On appeal, defendant contends as follows: (1) that the evidence was insufficient to establish his guilt beyond a reasonable doubt because it failed to show he intended permanently to deprive the alleged victims of their property; (2) that the trial court improperly admitted evidence of other uncharged crimes and misconduct by defendant; and (3) that the imposition of consecutive sentences was erroneous because each of the alleged offenses was part of a single course of conduct. We affirm.

The allegations against defendant in this case arose from his activities as president and sole shareholder of Great America Homes, Inc. (GAH), the activities of GAH, and defendant’s actions as president and sole shareholder of Ameriwest Mortgage Corporation. Each of the victims signed an application to purchase a home from GAH and paid $500 to reserve the lot upon which GAH was to construct the home. Some of the victims also paid GAH additional sums as down payments for their homes. The homes were located in what GAH termed the Casitas area of the County Towne Development in unincorporated Lake County. Neither defendant nor GAH ever held any interest in any of the lots in the Casitas area. The eight thefts of which defendant was convicted and the attempted theft all took place between July 28, 1987, and August 14, 1987. Defendant was acquitted of two alleged thefts which purportedly took place between June 14, 1987, and June 28, 1987.

Richard Kinsella testified that in July 1987 he saw GAH advertisements in the Chicago Tribune and the Daily Herald. The advertisements stated that GAH was offering three-bedroom homes for sale at a price of $99,900 with no closing costs. Kinsella and his wife drove to a model home in an area GAH called the Gagewood subdivision. They met with Peggy Martin, a GAH employee who told them the company had built homes in Arizona and Florida and that McManus, who was now running the company, had been a vice-president with Ameriwest in Arizona. Martin also told the Kinsellas that any money they gave GAH as a down payment would be held in escrow.

A few days later the Kinsellas returned to the location and spoke to another GAH employee. They signed an application to purchase a lot in the Casitas area and gave the GAH employee a $500 check in order to reserve the lot. Several days later, GAH employee Bruce Sova told Richard Kinsella during a telephone conversation that any down payment would be placed in a jumbo money market account to be used as collateral for construction loans. On August 7, 1987, the Kinsellas went to the GAH office in Vernon Hills. They signed a contract to purchase the lot and the home to be constructed thereon by GAH and gave GAH a check for $4,625 as a further down payment. The' Kinsellas subsequently attempted to obtain a refund from GAH but were unable to do so.

James Messina testified that he saw a GAH advertisement in the Chicago Tribune in August 1987. Messina went to a trailer at or near the Casitas area and met with Peggy Martin, a GAH employee. Messina returned there a few days later on August 5, 1987, and once again met with Martin. On that date, Messina signed an application to purchase a lot in the Casitas area and gave Martin a $500 check as a deposit. Martin gave him a contract for the sale of the lot and a home to be built thereon and told him he would have to sign the contract and return with a down payment of 10% of the total cost within 10 days. Messina signed the contract, met with GAH employee Bruce Sova on August 14, 1987, and gave Sova a check for $9,750. Messina’s contract contained a rider which stated that if he was not satisfied with the home and requested a refund within seven days of its completion, all sums he had deposited with GAH would be refunded. Messina’s check for $9,750 was recovered by police before it was cashed. He never received any refund of the initial $500 payment.

George Rademacher saw the GAH advertisement in the Chicago Tribune and went to a GAH trailer near the Casitas section on August 1, 1987. He returned there with his wife on August 5, signed an application to purchase a lot and gave GAH employee Peggy Martin a check for $500. On August 8, the Rademachers went to the GAH offices in Vernon Hills, signed a contract to purchase the lot and gave Bruce Sova a check for $4,500 as a further down payment. Sova told him the money would be held in escrow. GAH never refunded any money to the Rademachers.

Ruby Bodame testified that she and her husband were referred to GAH by Georgeanne Depke of Properties Unlimited. The Bodames met with Peggy Martin on July 30, 1987, signed an application to purchase a lot, and gave Martin an American Express money order in the amount of $500. They met with Martin again on August 12 and told her they wanted a refund. Martin told them they would have to contact Bruce Sova.

Michael Bodame, Ruby’s husband, testified that he went to the GAH offices in Vernon Hills on August 13 or 14 to get the refund. Sova told him to return the following week. When Bodame did so on August 18, the office was practically cleared out. Bodame saw Chuck Swanson, a GAH employee, who told him there was no money. The Bodames never received a refund from GAH.

Paul Melonas testified that he saw the GAH advertisement in the Chicago Tribune. On August 1, 1987, Melonas and his wife met with GAH salesman John Deagan at the GAH trailer. They signed an application to purchase a lot that day and gave Deagan a check for $500. They never signed a contract to purchase the lot. Melonas and his wife did not receive any refund.

Barbara Pease testified that she and her husband saw the GAH advertisement in the Tribune. On August 4, 1987, they met with GAH employee Arno Schrimmer at the GAH trailer. The Peases gave Schrimmer a check for $500 and filled out an application to purchase a lot. They never signed a contract to purchase a lot. The Peases did not receive a refund.

Susan Ogawa testified that her husband saw the GAH advertisement in the Tribune. On August 2, 1987, the Ogawas met with Peggy Martin at the GAH trailer, filled out an application to purchase a lot, and gave her a check for $500. She called later that week to cancel the house and try to get her money back. The Ogawas were able to stop payment on the check before it was cashed. Defendant was therefore only convicted of attempted theft on the charge relating to the Ogawas.

James Callahan went to the GAH trailer on August 4, 1987, after seeing the GAH advertisement in the Tribune. He returned on August 6, filled out an application to purchase a lot, and gave GAH employee John Deagan a check for $500. Callahan did not pay any further amounts to GAH and did not receive a refund of $500.

Ralph Pepper testified that after he saw the GAH advertisement in the Tribune, he went to the GAH trailer with his fiancee, Lisa Corcoran, and met with Arno Schrimmer. Corcoran gave Schrimmer a check for $500 dated August 4, 1987, and the couple filled out an application to purchase a lot. Pepper went to the GAH office in Vernon Hills, met with Bruce Sova, and asked for a refund about a week after he saw Schrimmer. Sova told him to return in another week. Pepper did so, but the GAH offices were closed.

Over defendant’s objection, the State was permitted to present testimony from three other witnesses who lost money deposited with GAH, even though none of the theft charges brought in this case involved those witnesses. The first of these witnesses, Jesse Shearin, testified that he met with defendant on April 4, 1987, at a model home in the Gagewood subdivision. Defendant made certain representations to Shearin at the meeting and made similar representations in a letter to Shearin dated April 8, 1987, which stated as follows:

“Great America Homes, a wholly-owned subsidiary of Ameriwest Corporation, has been developing communities of fine homes for over twenty years. In addition to Illinois, the Corporation has constructed residential properties in Florida, Arizona, and New Mexico, as well as four midwestern states.”

Shearin subsequently gave McManus $5,000 as a deposit on a lot in the Gagewood subdivision. Shearin never received a refund, and GAH never constructed a home on the lot.

Lawrence Valenziano met with Bruce Sova at the GAH trailer in June 1987 and gave him a $500 check to reserve a lot. He met with Sova a few days later, signed a contract to purchase the lot, and gave Sova a $10,000 check as a down payment. Valenziano insisted on adding to the contract a clause which stated GAH had to show him what would be done with these payments prior to closing. Valenziano subsequently received a letter from defendant dated June 25, 1987, which stated in part as follows:

“Please be advised that it is the policy of our company to place all our deposits in a real estate trust account. It is our further policy to accumulate your deposit together with other deposits for the purpose of purchasing certificates of deposit from our participating banks. *** We wish to impress upon you that these funds are held and are not used for construction purposes, nor any other purpose, but merely as an accommodation with our lender for purposes of construction financing.”

GAH never built a home for Valenziano and never returned his money.

Steven Poland testified that he signed a contract to purchase a lot in the Evergreen subdivision on June 21, 1987, and gave GAH $11,300 as a deposit. In a July telephone conversation, McManus told Poland construction loans had already been obtained for the planned building. In an earlier telephone conversation, McManus had told Poland GAH was a subsidiary of Ameriwest out of Arizona.

Cathy Phillips testified that she served as defendant’s personal secretary at GAH from late April 1987 until the company offices were closed in August 1987. Phillips and all other GAH employees who testified stated that defendant was known to them as J. Thomas McMann. At the end of April, during a conversation with Phillips, defendant told her he was a vice-president with Ameriwest Development Corporation, which had sent him to the Chicago area to market homes and that the company had been successful selling homes in Florida.

Phillips testified that she had certain duties with respect to the GAH checking accounts. At first, her only responsibility was to fill out deposit slips when funds were placed in the company’s real estate trust account. She later took on additional responsibilities with regard to GAH’s bank accounts and was an authorized signer on some of them.

Phillips stated that GAH had three accounts at Premier Bank in Vernon Hills. Customer deposits were originally placed into the real estate trust account. There was also a general checking account which was used for the vast majority of the company’s expenses, including payroll. Additionally, there was a special account at Premier which served as a kind of office petty cash account.

GAH also opened up a general checking account at Lake Forest National Bank in June 1987 which was used for making payments on land purchased by GAH. Defendant and Phillips opened up a personal checking account at the same bank in late June or early July. This account was used to loan money to Ameriwest Mortgage Company. At about the same time, GAH opened a checking account at the First National Bank of Waukegan. This account was used to pay subcontractors. Charles Swanson, a GAH project manager, was an authorized signer on this account. Defendant told Phillips that he wanted Swanson to sign all checks on this account so Swanson could take the heat if something happened.

According to Phillips, most of the money in the other accounts was transferred from the Premier real estate trust account which held customer deposits. Phillips stated that she typed up GAH payroll checks and defendant did not receive a regular salary from the corporation.

Charles Swanson began working for GAH as sales manager on May 20, 1987. He was subsequently promoted to project manager and then vice-president of administration. Swanson testified that he had previously worked in home building, sales, and marketing for about 15 years. He further testified that in late May or early June 1987 he was at a meeting with defendant and several GAH sales representatives. Defendant told the others they should tell customers their deposits would be placed in an interest-bearing escrow account and would be refunded with 5^4% interest if they were dissatisfied with the project or were unable to obtain mortgages.

Swanson was directed to attempt to obtain construction financing for GAH. He contacted a number of financial institutions and initially received positive responses from four or five. These institutions required certain financial statements and other documentation which McManus never provided. Swanson testified that GAH never commenced any construction in the Evergreen or Casitas areas. At the time GAH ceased operations in mid-August 1987, six to eight homes in the Gagewood area were in various phases of construction. GAH did not obtain any financing for the Gagewood project; the company was handling construction costs on its own.

During a July 1987 conversation, defendant told Swanson that GAH owned the Casitas property. Defendant also told Swanson during a May 1987 meeting that he had been a builder and had been with Ameriwest Development.

Bruce Sova testified that he began work at GAH as director of sales and marketing on June 12, 1987. Sova had 14 years of prior experience in the real estate development field. During Sova’s first week of employment, defendant told him GAH was part of Ameriwest Financial out of Arizona and was affiliated with a savings and loan that was part of Ameriwest. Defendant also told Sova around the same time that customer deposits would be used to purchase jumbo CD’s in $50,000 amounts that would be used as leverage to obtain other funds for operating the company. Sova testified that this is what he told customers when asked what GAH would do with the money and that he never said it would be placed in an escrow account.

Sova further testified that in late July 1987 defendant told him they were going to put together an advertising program for the Casitas area. Emphasis was to be shifted from promoting the single-family homes in the Evergreen area to promoting the Casitas homes, which would be smaller. The advertisements regarding Casitas homes were placed in the Tribune shortly thereafter.

Peggy Martin testified that she worked as a sales representative for GAH from May 30, 1987, until August 15, 1987. During a meeting in May 1987, defendant told her GAH was a division of Ameriwest Financial Services of Arizona, a company whose stock was traded on the New York Stock Exchange. On or about June 13, 1987, she began working at a GAH trailer in the Evergreen subdivision.

Martin left the trailer three days later because at about 5:30 in the afternoon a man named Tim Towne entered the trailer, claimed to be the owner of the property, and requested that she leave. Martin then spoke to defendant on the telephone, and he stated Towne was his partner in the deal and not the sole owner of the land. Martin worked at a model home in the Gagewood subdivision for about a month and then returned to the trailer at the Evergreen site.

Martin stated that sometime between mid-June and early July 1987 she met with her supervisor, Sharon Dethlefsen. Dethlefsen told her that, according to Bruce Sova, customer deposits would be placed in jumbo CD’s and would be refunded with interest upon completion of the home if the customer was dissatisfied. Dethlefsen testified that Sova told her this and also told her the jumbo CD’s would be used to obtain construction loans.

Cynthia Koeller, a GAH sales representative, testified that Mc-Manus told her in a sales meeting in early June that customer money would be placed in an escrow account and would be refunded with interest if the customer did not like the home after it was built. Koeller told these things to customers. She also testified that McManus told her he was a vice-president with Ameriwest Corporation from Arizona.

Richard Crane testified that he began working for GAH on May 12, 1987, as vice-president and director of operations. Crane had been in the construction field for about 30 years. During his two job interviews, defendant told him GAH was affiliated with Ameriwest, a large company with a lot of money behind it that was located in Phoenix. Crane testified that GAH engaged in some construction at Gage-wood, but none in the Evergreen or Casitas areas. He also stated that defendant reversed the ordinary process for setting prices for homes. Ordinarily, the cost of constructing the home, together with the price of the home, would be considered in setting the selling price. Defendant, however, would set the selling price and tell Crane to build a home there for 35% less.

William Stapleton, an accountant, began working for GAH on July 17, 1987. Stapleton testified that the company’s capital came solely from customer deposits. Stapleton went to the Bank of Waukegan in order to discuss financing for construction in the Evergreen area. The bank requested a financial statement, but Stapleton was unable to prepare it because he did not have the necessary documentation. Stapleton identified a personal financial statement prepared by defendant, which was admitted into evidence over a defense objection.

The State presented evidence showing that defendant incorporated GAH on April 13, 1987. Defendant also incorporated Ameriwest Development Company in Arizona on April 22, 1987. Defendant hired Terrence King to be in charge of Ameriwest Mortgage Corporation. King testified that defendant filled out a portion of that company’s application for a license to operate as a mortgage banker in Illinois. Defendant stated in this portion of the application that the company is a wholly owned subsidiary of Ameriwest Development Company, an Arizona corporation, and that defendant owned 30% of the shares in the latter company while two other men owned the remaining shares. Defendant admitted to King in mid-August 1987 that he was the sole shareholder of Ameriwest.

Daniel Colin, a detective with the Lake County sheriff’s police, testified that he had been investigating financial crimes since 1980 and had specialized training in the area. Colin testified that he went to Arizona in January 1988 and found no evidence that Ameriwest Development Company ever had an office at 2600 Central Avenue in Phoenix, the address mentioned in the articles of incorporation.

Colin also examined bank records from the GAH accounts. According to Colin, these records showed that with the exception of one $80,000 deposit, all funds deposited into the accounts originally came from down payments on homes by GAH customers. The total amount of customer down payments deposited in GAH accounts was slightly more than $600,000. The $80,000 deposit resulted from a payment to GAH on a house the company completed in the Gagewood area. Colin testified that $18,600 in funds went directly from GAH accounts to defendant. Another $6,300 went to defendant’s landlord for rent on his home. Another $47,600 was expended in cash payments. Other evidence revealed that defendant arranged for the purchase of six automobiles in GAH’s name. One of these was a Mercedes-Benz which defendant drove and the others were Cadillacs which defendant agreed to give certain GAH and Ameriwest employees at the time he hired them.

Veronika Romer testified that defendant rented a home from her in Libertyville beginning in mid-May 1987, at a cost of $1,400 per month. Romer identified defendant’s application for lease which was admitted into evidence over a defense objection. Defendant stated in the application that his annual salary was $250,000.

Richard Villa testified that he is the corporate security manager of Ameriwest Financial Corporation, a bank holding company in New Mexico with several subdivisions. Villa stated that the two Ameriwest corporations established by defendant were not in any way part of Ameriwest Financial or any of its subsidiaries.

Tim Towne testified that he was part of a joint venture which purchased the land in the County Towne Subdivision during the fall of 1986. The other member of the joint venture was Home Federal Service Corporation of Rockford. Defendant met with Towne in late April or early May 1987 and told Towne he wanted to purchase the entire subdivision. Defendant stated he was from Phoenix, Arizona, and was working on some projects for Ameriwest Corporation. Towne mentioned that the price would be in excess of $3 million, and he would require proof of financing through a financial institution acceptable to his financial institution. Defendant told Towne that proof of financing would be no problem and that he would obtain financing from Albuquerque Savings and Loan. Defendant never got back to Towne with the necessary proof of financing, however. Towne subsequently sold the 75 lots in the Evergreen area to a man named Frank Blazevich. The closing on the Blazevich purchase was held on August 5,1987.

After Blazevich entered into the purchase agreement for the 75 lots in late May or early June 1987, defendant began to inquire about purchasing the 33 lots in the Casitas area. On June 10, 1987, defendant gave Towne a proposed contract for the purchase of these lots. He gave Towne a corrected contract .on June 29, 1987, with a purchase price of $515,000, and also gave Towne a check for $25,000 at this time. At Towne’s insistence, defendant placed a provision in this contract stating it would be null and void unless he delivered a financial commitment letter for $490,000 within 10 days. Defendant never produced such a letter, and the County Towne owners never signed either contract.

In mid-July 1987, Towne attended a meeting with defendant and defendant’s attorney in order to review and discuss the proposed Casitas contract. A second meeting was held in late July or early August, but defendant did not show up. Defendant’s attorney told Towne that defendant would not be at the meeting because he apparently could not obtain the necessary financing. Towne told defendant’s lawyer that his group would take the property off the market and would sell it themselves to individuals.

Towne also testified that he found out in mid-June 1987 that GAH was operating a sales trailer on one of the County Towne Development lots under contract to Blazevich. Towne went to the trailer and directed the GAH employees to close the office. He telephoned defendant and Blazevich and told them not to offer lots for sale because this could adversely affect pending subdivision approval. In a later face-to-face meeting, Towne told defendant not to offer for sale lots which he .did not own. Defendant, sent Towne a letter dated August 4, 1987, in which he agreed to indemnify the Towne Development Company and its owners from any claims arising out of GAH sales activities. Towne had told defendant’s attorney during their meeting that he would not return defendant’s earnest money unless he received such a letter.

Frank Blazevich testified that in mid-May 1987 defendant negotiated with him to purchase the 75 County Towne Development lots he had acquired. Defendant stated he was a home builder from Arizona with $15 million of mortgage money available to him through Ameriwest Mortgage Company. Defendant signed a contract to purchase the property on June 9, 1987, and gave Blazevich earnest money checks totalling $23,325 in late July. Blazevich signed the contract in late July.

Blazevich, an automobile dealer, sold five Cadillacs to GAH in June and July 1987. In connection with the sale of these cars, defendant filled out a credit application and gave it to Blazevich. Blazevich identified the application in which defendant falsely stated he had an annual salary of $225,000 and had an ownership interest in the house he leased from Romer.

Mark Peteler testified that he had been a loan officer at the First National Bank of Waukegan since 1986. Peteler stated that defendant met with him and Laurie Mortensen, the bank’s mortgage loan officer, in June 1987. Defendant told them he was interested in obtaining financing for construction of homes in the Gagewood area and that he might be interested in obtaining financing for the Evergreen area at a future date. Peteler told defendant the bank would need personal and company financial statements, would need to know who was going to build the homes, and have copies of their resumes.

Defendant had a second meeting with Peteler and Mortensen on August 12, 1987. Terrence King was also present. Defendant stated he was now interested in financing for the Evergreen project. They spoke in detail about whether the bank would be able to make construction loans to GAH or loans to the individual customers. They also discussed the possibility of loaning money to defendant individually. Peteler told defendant at the end of the meeting that the bank had not received any of the information he had requested at the previous meeting. Defendant told Peteler the information would be on his desk by 9 a.m. the next morning. Peteler never received the information. The bank did not lend any money to defendant or GAH.

The jury found defendant guilty of eight counts of theft by deception and one count of attempted theft. The trial court subsequently imposed sentence, and defendant filed a timely notice of appeal following the denial of his post-trial motion.

Defendant first contends that the evidence presented by the State was insufficient to establish his guilt beyond a reasonable doubt. When faced with a challenge to the sufficiency of the evidence in a criminal case, the function of a reviewing court is to determine whether, after viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) In order to establish defendant’s guilt on theft by deception charges, the State must prove beyond a reasonable doubt that (1) the victim was induced to part with money; (2) the transfer of the money was based upon deception; (3) defendant intended permanently to deprive the victim of the money; and (4) defendant acted with specific intent to defraud the victim. (People v. Lighthall (1988), 175 Ill. App. 3d 700, 705-06.) The trier of fact may infer intent to defraud from the facts and circumstances surrounding the transaction. Lighthall, 175 Ill. App. 3d at 706.

Defendant argues that the evidence was insufficient to prove the third element listed above, that he intended permanently to deprive the victims of their money without giving them anything of value in return. In making this argument, defendant relies primarily upon People v. Rolston (1983), 113 Ill. App. 3d 727, a case in which the court held the evidence insufficient to sustain convictions on four counts of theft by deception. (Rolston, 113 Ill. App. 3d at 733.) In Rolston, defendant, who operated a replacement window business, took orders for replacement windows and down payments from certain customers but failed to order the windows from the factory. The evidence showed that if defendant ordered fewer than 100 windows, he would have to pay freight charges, but he would not have to pay freight on an order of 100 windows. Defendant testified that the window orders did not come in as fast as he expected. He used the down payments he received to meet immediate business and living expenses. Defendant admitted lying to two customers by telling them their orders had been placed with the factory, but stated he believed at the time he would soon have enough orders to place an order of 100. (113 Ill. App. 3d at 728-30.) In reversing defendant’s convictions, the court noted in Rolston that defendant was an authorized dealer who had received professional training from a reputable manufacturer, he had put substantial money into the business, fully performed one contract and partially performed another, did not try to avoid his customers, did not deny owing the customers money, and continued in business despite the charges. 113 Ill. App. 3d at 732-33.

The court stated in Rolston that the case was distinguishable from People v. Ballard (1978), 65 Ill. App. 3d 831, because in Ballard the evidence showed defendants knew they would not fulfill their contracts. (Rolston, 113 Ill. App. 3d at 732.) The defendants in Ballard sold tool distributorships to 12 individuals and promised to provide high quality tools, assistance in setting up accounts and locations to place the tools in high-volume retail outlets, and refunds if the buyers wished to cancel. (Ballard, 65 Ill. App. 3d at 832-33.) The evidence revealed that the tools were of poor quality, the accounts were for low-volume outlets, and defendants never refunded any money. 65 Ill. App. 3d at 833.

According to defendant, the instant case is analogous to Rolston because most of the money received from GAH customers was used for business expenses. Defendant also points out that GAH was a size-able company which employed 20 to 25 people and which did engage in some home construction, completing one house in the Gagewood area. In our opinion, however, the evidence in this case was clearly sufficient for the jury to conclude that defendant never intended to provide the victims anything of value for the money given to GAH.

First of all, the evidence is undisputed that GAH employees, at defendant’s direction, accepted down payments from customers for land in which neither defendant nor GAH held any ownership interest and represented to the customers that their money would be held in escrow or used to purchase jumbo CD’s which would only be employed to obtain construction financing. These representations were false.

Additionally, the evidence showed that defendant launched a promotional campaign for the Casitas area in late July 1987. Each of the victims paid deposits or down payments to GAH on or after July 28. Defendant, however, did not even show up for a meeting scheduled with Towne in late July or early August to discuss the proposed Casitas contract. Defendant’s attorney told Towne at the meeting that defendant had failed to attend because he had apparently been unable to obtain the necessary financing. Towne told the attorney that his group was taking the property off the market and would sell it to individual home buyers themselves. Defendant’s attorney then inquired about a refund of the earnest money paid by GAH. Towne stated he would only return the earnest money if GAH agreed to indemnify his group for any claims resulting from GAH sales activities. Towne subsequently received an indemnification letter from defendant dated August 4,1987.

Most of the deposit money paid by the victims in this case to GAH for Casitas lots was paid on or after August. 4, 1987. Even though the proposed deal with Towne to purchase the Casitas area was clearly dead at this point, and defendant obviously recognized this when he sent the indemnification letter to Towne that day in the hope of having the earnest money returned, GAH continued accepting down payments for Casitas lots. Furthermore, defendant was aware in late June that he would be required to obtain a commitment for $490,000 in financing before Towne would sell him the Casitas property. The evidence concerning GAH’s aborted efforts to obtain financing indicates defendant was aware when GAH started taking down payments on the Casitas area in late July that it would never receive the requisite financing to buy the land. The jury could have reasonably concluded from the evidence that in late July, when defendant decided to promote the Casitas area and GAH first received payments for Casitas lots from the victims in this case, defendant knew neither he nor GAH would be able to purchase the property from Towne. Therefore, the jury could have also reasonably concluded that defendant intended permanently to deprive the victims of their money without giving them anything of value in return. We therefore reject defendant’s argument that the evidence was not sufficient to prove him guilty beyond a reasonable doubt.

Defendant next contends he is entitled to a new trial because the State was erroneously permitted to present evidence of uncharged crimes and misconduct. More specifically, defendant argues that the three witnesses, who testified they made down payments to GAH between April and June 1987 for lots in the Gagewood and Evergreen subdivisions and stated that defendant and other GAH personnel made certain representations to them, should not have been permitted to testify because none of the charges in this case related to those witnesses. Defendant also argues that a lease application, a credit application for the purchase of automobiles, and two personal financial statements, all of which contained some false information, were not relevant and should not have been admitted into evidence.

Although defendant filed a post-trial motion, he did not assert in the motion that admission of the above evidence was error. Failure to raise an issue in a post-trial motion will result in waiver of the issue on appeal in the absence of plain error. (People v. Enoch (1988), 122 Ill. 2d 176, 187.) The purpose of the plain-error doctrine is to correct serious errors which may have deprived the accused of a fair trial. (People v. Sommerville (1990), 193 Ill. App. 3d 161, 171.) The doctrine will be applied in criminal cases if the evidence was closely balanced or the alleged error was so serious that it deprived defendant of a fair trial. (Sommerville, 193 Ill. App. 3d at 171.) Here, the evidence that defendant instigated a scheme to defraud prospective home purchasers is overwhelming. In light of the substantial evidence of fraudulent conduct and misrepresentations on defendant’s part, any error in admitting the evidence in question, which concerned similar conduct, could not have deprived defendant of a fair trial. We therefore decline to apply the plain-error rule.

Furthermore, defendant’s argument is without merit. Evidence of other crimes or misconduct on defendant’s part is admissible if relevant for any purpose other than to establish defendant’s propensity to commit crime, so long as its relevance outweighs its prejudicial effect. (People v. Stewart (1984), 105 Ill. 2d 22, 62.) If defendant’s conduct in connection with a prior crime bears such similarity in significant respects to defendant’s conduct in connection with the charged offense as to show the offenses resulted from a general plan or scheme, evidence of defendant’s conduct in connection with the prior offense is admissible. (People v. Brown (1962), 26 Ill. 2d 308, 316.) Jesse Shearin, Steven Poland, and Lawrence Yalenziano all testified that they made deposits or down payments on lots to GAH and did not get their money back. Shearin and Poland testified that defendant told them GAH was a part of Ameriwest of Arizona. Valenziano stated that defendant represented to him in a letter that his down payment would be placed in GAH’s real estate trust account and would be used solely for the purpose of obtaining certificates of deposit from participating banks. The victims in this case attested to similar misrepresentations by GAH employees. Certain GAH employees testified that defendant told them to make these representations. The testimony of Shearin, Poland, and Valenziano clearly indicates that defendant’s misconduct toward them was part of a scheme or general plan that also resulted in the commission of the charged offenses. This evidence was therefore admissible.

The financial statements, lease application, and credit application were also both relevant and admissible. Mark Peteler, a loan officer with the First National Bank of Waukegan, testified that, when defendant met with him in August 1987 to discuss the possibility of obtaining financing, the possibility of lending money to defendant personally was discussed. The fact that defendant evidently believed it necessary to place false personal financial information in these documents indicates defendant was probably aware that a person of his financial standing could not reasonably hope to borrow a large sum of money from a bank. These documents are thus relevant evidence of defendant’s intent to defraud the victims in this case because they tend to show defendant knew he could not obtain the necessary financing to purchase the Casitas area.

Although the evidence in question was relevant, it should only have been admitted if its probative value outweighed its prejudicial effect. The trial court’s determination of this question will not be disturbed absent an abuse of discretion. (People v. DeCesare (1989), 190 Ill. App. 3d 934, 942.) Here there was no abuse of discretion. As we have previously stated, there was overwhelming evidence of fraudulent conduct and misrepresentations on defendant’s part. This additional evidence of such conduct therefore could not have prejudiced defendant. The trial court was correct in admitting the evidence.

Defendant’s final contention is that the trial court erred by imposing consecutive sentences because such sentences cannot be imposed for “offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(a).) Although the evidence indicates the nine offenses in question were part of a larger scheme of financial fraud, this does not mean the nine incidents constituted a single course of conduct within the meaning of the above provision. (See People v. Shaw (1985), 133 Ill. App. 3d 391, 405.) When separate victims are harmed by distinct acts directed at the victims separately, section 5 — 8—4(a) does not prohibit the imposition of consecutive sentences. (People v. Schlemm (1980), 82 Ill. App. 3d 639, 649; People v. Lindsay (1978), 67 Ill. App. 3d 638, 647.) To hold otherwise would only encourage commission of additional crimes under certain circumstances because no additional sentence could be imposed for subsequent offenses. Lindsay, 67 Ill. App. 3d at 649.

In the case at bar, defendant took money from nine different individuals or couples on separate occasions. Although the offenses were part of a common scheme, they involved distinct acts directed separately against different victims. Accordingly, section 5 — 8—4(a) did not preclude the imposition of consecutive sentences.

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

Affirmed.

REINHARD and INGLIS, JJ., concur.