author: JUSTICE WELCH

text:
    THE DEPARTMENT OF PUBLIC AID ex rel. KAREN ANN EVANS, Petitioner-Appellant, v. ARTHUR JOE LIVELY, Respondent-Appellee.
    Fifth District
    No. 5 — 91—0359
    Opinion filed June 30, 1993.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Tanya Solov, Assistant Attorney General, of Chicago, of counsel), for appellant.

      Gene A. Turk, Jr., of Womack & Associates, Chartered, of Carbondale, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:'

The Department of Public Aid ex rel. Karen Ann Evans (hereinafter petitioner) appeals from orders entered by the circuit court of Jackson County on March 15, 1991, and April 15, 1991, respectively, granting the motion to dismiss filed by respondent, Arthur Joe Lively, and denying petitioner’s motion for rehearing. For reasons stated as follows, we reverse and remand.

The record indicates that the State of Wisconsin filed a petition for establishment of paternity, child support and medical coverage against respondent on behalf of Karen Ann Evans on February 23, 1990, in Fond Du Lac County, Wisconsin. The petition represented that Evans, who resides in Fond Du Lac County, is the mother and custodian of Jason Kyle Hassen, who was born on May 5, 1977. The petition further represented that respondent was the putative father of Jason, that Evans and respondent were never married, and that respondent resided in Jackson County, Illinois. Evans made an assignment of rights and gave authority to ‘the Fond Du Lac, Wisconsin, Family Support Division to collect support for Jason.

The paternity affidavit made by Evans and attached to the petition represented that Jason was conceived between July 8, 1976, and September 6, 1976, in Illinois and born in Illinois, and that Evans did not have sexual intercourse with any man other than respondent during the time the child was conceived. Evans also represented that respondent wanted to get married when he found out she was pregnant, and that Jason physically resembles respondent in that he has straight blond hair and is tall. Evans stated that birth and medical expenses were paid by medical assistance from the State of Illinois. Evans provided in her affidavit the names of three witnesses to the relationship in 1977 between Evans and respondent.

The Department of Public Aid filed a paternity action against respondent in the circuit court of Jackson County, Illinois, pursuant to the Revised Uniform Reciprocal Enforcement of Support Act (Ill. Rev. Stat. 1989, ch. 40, par. 1201 et seq.), on September 20, 1990. Respondent filed a motion to dismiss the petition on November 14, 1990, stating therein the following grounds for dismissal pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619):

“1. The present action was not commenced within the time limited by prior law, and the new limitations period should not be applied retroactively.
2. The claim is barred because enforcement of the underlying statute would violate the respondent’s right to due process under the law.”

Following submission of memoranda of law and oral argument on March 15, 1991, the circuit court of Jackson County found that there was a conflict between well-established case law, which holds that the completed bar of a statute of limitations is a vested right which cannot be destroyed by subsequent legislation, and the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1989, ch. 40, par. 2501 et seq.). Based on this conflict, the court granted respondent’s motion to dismiss, holding that the bar of the statute of limitations in effect when the child was born was vested and thus the statute of limitations of the present act could not retroactively be employed to validate this claim.

As a preliminary matter, respondent argues that this court is without jurisdiction to hear the petitioner’s appeal because the notice of appeal did not comply with the time limits stated in Supreme Court Rule 303 (134 Ill. 2d R. 303). We note that respondent raised this exact issue in a motion to dismiss appeal filed with this court on March 11, 1992, and that we denied respondent’s motion by order dated April 1, 1992.

Respondent contends that the trial court required a written order when it granted respondent’s motion to dismiss on March 15, 1991, and, accordingly, that the petitioner’s notice of appeal, which preceded the entry of the written order in this cause, was premature. We have reviewed the report of proceedings from the March 15, 1991, hearing and disagree that a written order was mandated by the court. Moreover, Supreme Court Rule 272 states that if the judge requires submission of a form of written judgment to be signed by the judge, the clerk shall make notation to that effect, and that if no such written judgment is to be filed, judgment is entered at the time it is entered of record. (134 Ill. 2d R. 272.) We note that the March 15, 1991, docket entry in the common law record prepared by the clerk states, “argument was heard and motion to dismiss granted,” and did not specify that one of the parties was to prepare a written order.

We also note that petitioner filed a motion to reconsider which was denied by the trial court on April 15, 1991, and that petitioner’s notice of appeal on May 15, 1991, from the March 15, 1991, and April 15, 1991, orders of the court is timely under Rule 303. This was the basis for our denial of the motion to dismiss appeal and our reiteration now that this court has jurisdiction of petitioner’s appeal in the instant case.

Regarding the merits of petitioner’s appeal, we note that section 8 of the Illinois Parentage Act of 1984 provides, in pertinent part, that actions to determine a father-and-child relationship brought by or on behalf of a child are not barred until two years after the child reaches the age of majority or, if brought on behalf of the child by a public agency, are not barred until two years after the agency has ceased to provide assistance to the child. (See Ill. Rev. Stat. 1989, ch. 40, par. 2508.) In May 1977 when Jason was born, the prior Paternity Act provided in pertinent part that institution of a paternity action for a child born out of wedlock and to establish and enforce liability for the child’s support, maintenance, education, and welfare could not be brought after the expiration of two years from the birth of the child. (See Ill. Rev. Stat. 1977, ch. 40, par. 1354.) Thus, under prior law, a paternity action would have been barred after May 5, 1979. However, if the limitations period stated in the Illinois Parentage Act of 1984 is applicable, a paternity action would not be barred until May 5, 1997, or two years after the Wisconsin Department of Child Support has ceased to provide assistance to the child. According to the petition filed by the State of Wisconsin, public assistance for Jason had not ceased at the point in time when the petition was filed. Moreover, this action brought by the State “ex rel.,” or on relation of Jason’s mother, seeks to find respondent liable for the support, education, maintenance, and welfare of Jason and is therefore to be construed as one brought on behalf of the child within the meaning of the Illinois Parentage Act of 1984. (People ex rel. Todd v. Harvey (1987), 154 Ill. App. 3d 296, 300, 507 N.E.2d 110, 113.) For purposes of our analysis of the issue presented in this appeal, we will assume that the applicable limitations date under the Illinois Parentage Act of 1984 is May 5, 1997. The narrow issue presented by petitioner for our review is whether the statute of limitations of the Illinois Parentage Act of 1984 may be applied retroactively to the instant paternity action.

By way of introduction, we note that the former Paternity Act was repealed by the Illinois legislature in response to the United States Supreme Court’s denunciation of a similar statute in Tennessee and an Illinois Appellate Court decision which held the statute of limitations of the Paternity Act to be unconstitutional. (Klawitter v. Crawford (1989), 185 Ill. App. 3d 778, 781-82, 541 N.E.2d 1159, 1161.) The United States Supreme Court held the Tennessee statute with its two-year statute of limitations for paternity actions to be unconstitutional because it denied equal protection to illegitimate children seeking support. (Pickett v. Brown (1983), 462 U.S. 1, 18, 76 L. Ed. 2d 372, 386, 103 S. Ct. 2199, 2209.) Subsequently, an Illinois Appellate Court similarly concluded that the Paternity Act violated the equal protection clause of the fourteenth amendment. (Jude v. Morrissey (1983), 117 Ill. App. 3d 782, 784, 454 N.E.2d 24, 26; accord People ex rel. McCoy v. Sherman (1984), 123 Ill. App. 3d 444, 462 N.E.2d 817.) We also note that the appellate court in Jude reversed the dismissal by the lower court of plaintiff’s complaint for failure to file within the applicable two-year limitations period.

Our supreme court also pronounced the two-year statute of limitations provision of the Paternity Act unconstitutional but found the remainder of the Act to be severable from the limitations provisions and therefore valid. (Dornfeld v. Julian (1984), 104 Ill. 2d 261, 266, 472 N.E.2d 431, 433.) Cases pending on appeal after Pickett v. Brown but before the July 1, 1985, effective date of the Illinois Parentage Act of 1984 have consistently held that it was error to dismiss complaints filed more than two years from the birth of the child, reasoning that dismissal would abrogate the expressed intent of the legislature made apparent within the new act, and that it would be judicially inefficient to dismiss the cause only to have it reinstated under the greatly extended limitation period of the new act. (See Dornfeld v. Julian, 104 Ill. 2d at 267, 472 N.E.2d at 433; People ex rel. Moore v. McIntosh (1985), 134 Ill. App. 3d 1070, 1073-74, 481 N.E.2d 833, 835; cf. People ex rel. Kelly v. Pasko (1989), 184 Ill. App. 3d 528, 540 N.E.2d 462 (plaintiff’s action filed August 15, 1983, six years after the birth of the child, not barred by statute of limitations; policy articulated by court in Dornfeld is controlling).) It is clear from the above review of case law addressing dismissal of paternity actions after Pickett v. Brown that the two-year statute of limitations would no longer be applicable.

Respondent argued to the trial court, however, that retroactive application of the statute of limitations provision of the Illinois Parentage Act of 1984 violated his due process rights by attempting to revive a previously barred cause of action. Respondent also argues on appeal that none of the cases holding that the two-year statute of limitations was unconstitutional and therefore inapplicable to matters pending after Pickett v. Brown addressed the conflict between their holding and the long-standing rule under Illinois law against reviving previously barred causes of action. Respondent cites Board of Education v. Blodgett (1895), 155 Ill. 441, 40 N.E. 1025, and its progeny for the proposition that a limitations defense which has fully accrued vests a property right in the defendant entitled to due process protection. The Illinois Supreme Court held in Blodgett that the legislation at issue which extended a statute of limitations for the collection by a bondholder of the consideration paid for bonds illegally issued by a school district, for an additional year after the date of the amendatory act, was unconstitutional and invalid. The court observed that the statute conflicted with the rule that when the bar of a statute of limitations has become complete by the running of the full statutory period, the right to plead the statute as a defense is a vested right, which cannot be destroyed by legislation, since it is protected therefrom by the State constitutional protection that “no person shall be deprived of life, liberty or property without due process of law.” Blodgett, 155 Ill. at 446, 40 N.E. at 1026.

The court expressly rejected in Blodgett the reasoning of a divided United States Supreme Court in the decision Campbell v. Holt (1885), 115 U.S. 620, 29 L. Ed. 483, 6 S. Ct. 209, which held that where a statute of limitations runs to bar a remedy but does not operate to affect the right, a defendant acquires no vested interest in the running of the period so that a subsequent legislative enactment which removes the bar does not deprive him of due process under the United States Constitution. The United States Supreme Court distinguished in Holt between statutes running against real or personal property, as in the case of adverse possession, where the right and title to the property itself is lost by plaintiff and becomes vested in the defendant, and statutes imposing a procedural bar against pursuit of an otherwise valid claim, such as an action to collect a debt, where the running of the limitations period leaves the underlying right intact. (See Wilson v. All-Steel, Inc. (1981), 87 Ill. 2d 28, 41, 428 N.E.2d 489, 494 (discussion of Holt decision).) The Illinois Supreme Court noted in Blodgett, however:

“[Ijmmunity from prosecution in a suit is as valuable to the one party as the right to the demand or to prosecute the suit is to the other. *** It is a right founded upon a wise and just policy. Statutes of limitation are not only calculated for the repose and peace of society, but to provide against the evils that arise from loss of evidence and the failing memory of witnesses. It is true that a man may plead the statute when he justly owes the debt for which he is sued; and this has led the court to adopt strict rules of pleading and proof to be observed when the defense of the statute is interposed. But it is, nevertheless, a right given by a just and. politic law, and, when vested, is as much to be protected as any other right that a man has.” (Blodgett, 155 Ill. at 449-50, 40 N.E. at 1025.)

The Blodgett decision has' consistently been cited with approval by Illinois courts. Wilson, 87 Ill. 2d at 41, 428 N.E.2d at 495.

Notwithstanding whatever authority may be provided by the Holt decision for the validity of the legislature’s repeal of the two-year statute of limitations in the prior Paternity Act and extension to the 20-year limitations period stated in the Illinois Parentage Act of 1984, Illinois courts have implied that in certain cases, the legislature can constitutionally revive a previously barred statutorily created remedy, provided the legislature expressly indicates that intention. (See Arnold Engineering, Inc. v. Industrial Comm’n (1978), 72 Ill. 2d 161, 167, 380 N.E.2d 782, citing People v. Lansing (1966), 35 Ill. 2d 247, 250, 220 N.E.2d 218; cf. Johnston v. Tri-City Blacktop, Inc. (1991), 217 Ill. App. 3d 388, 392, 577 N.E.2d 529 (“subsequent legislation extending the statute of limitations should not be applied retroactively to revive a time-barred cause of action unless the legislature indicates otherwise”).) However, in none of the above-cited cases did the court determine that the applicable statute of limitations could be retroactively applied so as to revive a claim, action or proceeding which had been barred by the running of a previous limitations period, because there was nothing in the language of the new statute to indicate an express intention to revive the claim, action or proceeding or make retroactive the new statute of limitations.

We note that unlike the legislation discussed in the Arnold Engineering, Lansing and Johnston cases, the Illinois Parentage Act of 1984 contains a savings clause which we find satisfies the requisite showing of intent on the part of the legislature to revive a previously barred statutorily created remedy. Section 25 of the Illinois Parentage Act of 1984 provides:

“Except as provided in Section 8 of this Act, the repeal of the ‘Paternity Act’, approved July 5, 1957, as amended, shall not affect rights or liabilities which have accrued thereunder and which have been determined, settled or adjudicated prior to the effective date of this Act or which are the subject of proceedings pending thereunder on such effective date. Provided further, this Act shall not be construed to bar an action which would have been barred because the action had not been filed within the then applicable time limitation, or which could not have been maintained under the ‘Paternity Act,’ approved July 5, 1957 and repealed hereunder, as long as the limitations periods set forth in Section 8 of this Act are complied with.” (Ill. Rev. Stat. 1989, ch. 40, par. 2525.)

In our opinion, the above-stated language clearly expresses an intent on the part of the legislature when it drafted the Illinois Parentage Act of 1984 that the new limitations period for the filing of a paternity action would be retroactively applied and could revive an action which had been previously barred. Additionally, because the two-year statute of limitations was found to be unconstitutional by our supreme court, it is void ab initio and confers no rights, imposes no duties, and affords no protections. (Melbourne Corp. v. City of Chicago (1979), 76 Ill. App. 3d 595, 605, 394 N.E.2d 1291, 1299.) Therefore, defendant has no vested property right in the two-year statute of limitations. We therefore find that the trial court erred in holding that the completed bar of the prior Paternity Act’s statute of limitations could not be destroyed by the Illinois Parentage Act of 1984, consistently with respondent’s due process rights.

We also note that unlike the claims, actions and proceedings involved in the Arnold Engineering, Lansing, and Johnston cases which dealt with rights personal to the party or claimant, the purpose of a paternity action is to convert a father’s moral obligation to support his illegitimate children into a legal obligation and to prevent such children from becoming public charges. (Dornfeld v. Julian, 104 Ill. 2d at 266, 472 N.E.2d at 433; People ex rel. Lampkin v. Brown (1980), 81 Ill. App. 3d 869, 873, 401 N.E.2d 1171, 1174.) The Illinois Parentage Act of 1984 declared it to be the public policy of Illinois to recognize the right of every child to the physical, mental, emotional, and monetary support of his or her parent. (Klawitter v. Crawford (1989), 185 Ill. App. 3d 778, 783, 541 N.E.2d 1159, 1163.) Thus, because the rights of the child are also involved, the same due process concerns so eloquently expressed by the supreme court in Blodgett are not present with respect to respondent’s obligation to his son, if paternity is so proven, and do not compel a determination that the limitations period of the Illinois Parentage Act of 1984 may not be retroactively applied.

Respondent insists, however, that the 14-year delay in filing the paternity action in the instant case will hamper his ability to produce evidence and witnesses who can credibly support his denial of paternity. We note that section 11 of the Illinois Parentage Act of 1984 provides that either party to a paternity action may request blood testing for the mother, child or alleged father to determine inherited characteristics, including, but not limited to, blood types and genetic markers such as those found by human leucocyte antigen (HLA) tests and that any party may demand that other experts, qualified as examiners of blood or tissue types, may perform independent tests under order of court, the results of which may be offered in evidence. (Ill. Rev. Stat. 1991, ch. 40, pars. 2511(a), (c).) Moreover, this section of the Illinois Parentage Act of 1984 outlines the evidentiary relevance of such test results:

“(1) If the court finds that the conclusion of all the experts, as disclosed by the evidence based upon the tests, is that the alleged father is not the parent of the child, the question of paternity shall be resolved accordingly.
(2) If the experts disagree in their findings or conclusions, the question shall be weighed with other competent evidence of paternity.
(3) If the blood or tissue tests show that the alleged father is not excluded and that the combined paternity index is less than 500 to 1, this evidence shall be admitted by the court and shall be weighed with other competent evidence of paternity.
(4) If the blood or tissue tests show that the alleged father is not excluded and combined paternity index is at least 500 to 1, the alleged father is presumed to be the father, and this evidence shall be admitted. This presumption may be rebutted by clear and convincing evidence.” (Ill. Rev. Stat. 1991, ch. 40, par. 2511(f).)

Justice O’Connor noted in her concurring opinion in Mills v. Habluetzel (1982), 456 U.S. 91, 71 L. Ed. 2d 770, 102 S. Ct. 1549, that recent scientific developments in blood testing have dramatically reduced the possibility that a defendant will be falsely accused of being the illegitimate child’s father and, in discussing the constitutionality of the State’s one-year statute of limitations, so concluded that the State’s concern about stale and fraudulent claims is substantially alleviated. (Mills v. Habluetzel, 456 U.S. at 104 n.2, 71 L. Ed. 2d at 781 n.2, 102 S. Ct. at 1557 n.2 (O’Connor, J., concurring, joined by Burger, C.J., and Brennan and Blackmun, JJ.).) It is apparent that with the advent of such conclusive blood- and genetic-testing methods, whose utilization is sanctioned by the Illinois Parentage Act of 1984, respondent is not unduly prejudiced by the extended statute of limitations.

We note that the Illinois Parentage Act of 1984 as originally enacted provided that upon a showing by the defendant that unreasonable delay in bringing the action has unduly prejudiced the defendant, the court, after deliberating over all the circumstances, including equitable considerations, may dismiss the cause of action. (See Ill. Rev. Stat. 1985, ch. 40, par. 2508(b).) However, this provision was deleted from section 8 of the Illinois Parentage Act of 1984 by Public Act 84 — 848, section 1, effective September 23, 1985, and the current act as amended includes no comparable provision. We also note that this court rejected a related contention prior to the effective date of the act, that a paternity action brought 14 years after the child’s birth should have been dismissed under the equitable doctrine of laches, because there was no indication in the prior act that this doctrine should be applicable and because application of the doctrine of laches could adversely affect the statutory purpose of providing for support of illegitimate children. (People ex rel. Reeder v. Reeder (1985), 131 Ill. App. 3d 841, 845, 476 N.E.2d 50, 52; accord People ex rel. McCoy v. Sherman (1984), 123 Ill. App. 3d 444, 462 N.E.2d 817.) The Illinois Parentage Act of 1984, as amended by Public Act 84 — 848, section 1, also shows no legislative intent that this equitable doctrine may apply, and we similarly believe that application of the doctrine of laches would thwart the stated public policy of the act, to recognize the right of every child to the physical, mental, emotional, and monetary support of his or her parent. We must therefore reject respondent’s contention that there are any legal or equitable considerations which should bar this paternity action filed 14 years after the birth of his alleged son. We hold that the trial court erred as a matter of law in dismissing the paternity petition filed in the instant case as barred by the statute of limitations of the prior Paternity Act.

Accordingly, we reverse the March 15, 1991, and April 15, 1991, orders of the circuit court of Jackson County and remand this cause for further proceedings consistent with our decision in this appeal.

Reversed and remanded.

CHAPMAN, P.J., and GOLDENHERSH, J., concur.


source: Caselaw Access Project

author: JUSTICE WOODWARD

license: Public Domain

text:
    ROBERT LAWLYES, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Huber Brothers, Appellant).
    Third District (Industrial Commission Division)
    No. 3 — 92—0506WC
    Opinion filed May 28, 1993.
    John E Martin, of Dukes, Martin, Helm & Ryan, of Danville, for appellant.
    Matthew K. Brandow, of Smith, Waters, Kuehn & Hughes, Ltd., of Peoria, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Claimant Robert Lawlyes filed an application for adjustment of claim, pursuant to the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.). Therein he alleged injuries to his right arm and hip arising out of and in the course of his employment with Huber Brothers (the employer). The case was heard by the arbitrator on September 12, 1990. In the decision entered on June 24, 1991, the arbitrator awarded claimant 621/7 weeks of temporary total disability (TTD) and 70.5 weeks of permanent partial disability (PPD) based on a 30% loss of claimant’s right arm. Regarding claimant’s average weekly wage, the arbitrator stated:

“Petitioner testified he earned $11,729.75 in the year prior to the injury. He testified he earned $11,113.77 between 5/27/86 and 12/31/86, and $616.02 between 1/1/87 and 5/27/87. The Arbitrator finds petitioner’s earnings were $11,729.75 in the year prior to the date of accident. See Section 10 of the Act. Although petitioner may not have worked every day, no evidence was introduced to show actual days worked in the year prior to the accident. There is no evidence to calculate average weekly wage other than actual wages earned as set forth above.”

The total dollar amount awarded by the arbitrator for TTD and PPD was $18,886.51. The arbitrator found that a sum of $22,902.75 had been paid to claimant on account of the subject injury. No review of the arbitrator’s decision was taken by either party, and it became final.

After the decision was entered, claimant requested additional payments from the employer, whose counsel, in a letter dated August 12, 1991, explained that the award was less than the amount already paid, creating an overpayment to claimant. Despite these facts, claimant filed a petition for penalties for nonpayment of award (petition) on November 20,1991.

On January 10, 1992, the Industrial Commission (Commission) entered an order wherein it found that the claimant had been overpaid $4,016.24. The Commission also denied claimant’s petition and found that said pleading was frivolous pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137). In another order filed the same day, the Commission ordered claimant to repay the employer the sum of $4,016.24 and, pursuant to Rule 137, directed claimant and his counsel to pay the employer’s counsel the $848.57 incurred in defending the petition.

On review, the circuit court upheld the Commission’s order that claimant repay $4,016.24 that the employer overpaid. The circuit court determined that Rule 137 did not apply to the Commission’s proceedings, and it also denied the employer’s motion for additional sanctions.

Both parties appeal the circuit court’s decision. The employer argues that Rule 137 applies to proceedings before the Commission. On cross-appeal, claimant contends that the employer is not entitled to credit for overpayment of TTD benefits and that the employer did not give him sufficient notice of the hearing on the petition for sanctions and repayment which was held on December 13, 1991.

We first address the employer’s contention that Supreme Court Rule 137 applies to Industrial Commission proceedings and that the Commission’s sanctions against claimant and his counsel made pursuant to said rule were proper. In response, claimant argues that the subject petition was not frivolous, and, furthermore, the Commission could not impose sanctions pursuant to Rule 137.

Rule 137 provides:

“Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney fee. All proceedings under this rule shall be within and part of the civil action in which the pleading, motion or other paper referred to has been filed, and no violation or alleged violation of this rule shall give rise to a separate cause of action, or another cause of action within the civil action in question, by, on behalf of or against any party to the civil action in question, and by, on behalf of or against any attorney involved in the civil action in question.
This rule shall apply to the State of Illinois or any agency of the State in the same manner as any other party. Furthermore, where the litigation involves review of a determination of an administrative agency, the court may include in its award for expenses an amount to compensate a party for costs actually incurred by that party in contesting on the administrative level an allegation or denial made by the State without reasonable cause and found to be untrue.
Where a sanction is imposed under this rule, the judge shall set forth with specificity the reasons and basis of any sanction so imposed either in the judgment order itself or in a separate written order.” (Emphasis added.) 134 Ill. 2d R. 137.

We note that nothing in the plain meaning of the rule indicates that it applies to the Commission’s proceedings.

Two cases cited by the employer, Elles v. Industrial Comm’n (1940), 375 Ill. 107, and Chambers v. Industrial Comm’n (1985), 132 Ill. App. 3d 891, actually support claimant’s contention. Both cases state that the Illinois Civil Practice Act and supreme court rules are typically not applicable to Commission proceedings. In Elies, where the issue was the procedure on appealing a Commission award, the supreme court held that since a specific procedure was provided in section 19 of the Act, the Act would govern. The court stated:

“Thus, it is apparent that the provisions of the Civil Practice act and rules of this court do not apply to cases arising under the Workmen’s Compensation act, in so far as or to the extent that the procedure is regulated by section 19 of the Workmen’s Compensation act.” 375 Ill. at 113.

In Chambers v. Industrial Comm’n (1985), 132 Ill. App. 3d 891, this court cited Elies for the proposition that supreme court rules were inapplicable to procedures regulated by section 19 of the Act.

In Gotten v. Industrial Comm’n (1987), 152 Ill. App. 3d 822, also cited by the employer, claimant appealed to the circuit court and claimed that he was deprived of due process because of an ex parte communication with a commissioner by the employer’s attorney. The employer argued that the appeal procedure was governed by section 19, that the letter communication was not in the record and, therefore, the matter could not be considered on appeal. The Gotter court stated:

“Although the provisions of the Code of Civil Procedure and the supreme court rules are inapplicable to procedures regulated by section 19 of the Workers’ Compensation Act [citation], section 19 does not authorize the entry of a decision by the Industrial Commission in violation of the principles of due process.” (152 Ill. App. 3d at 825-26.)

The appeal at bar is not a due-process case, and, thus, Gotter is of no particular relevance.

While the employer correctly points out established rules of legal procedure and the rules of evidence have been applied to Commission proceedings, despite there being no mention of same in section 19, we fail to see the relevance of this information. Both the rules of legal procedure and the rules of evidence are necessary in proceedings before the Commission to ensure uniformity of results and efficiency of the process. As such, said rules are far more essential to the Commission’s proper functioning than Supreme Court Rule 137.

Equally unpersuasive is the employer’s reference to cases dealing with section 19(n) interest, wherein this court has had to look to the Civil Practice Act for guidance. (See, e.g., Bray v. Industrial Comm’n (1987), 161 Ill. App. 3d 87; Ballard v. Industrial Comm’n (1988), 172 Ill. App. 3d 41.) As the Act was silent on interest accruing after an arbitrator’s award, this court has applied the Civil Practice Act’s interest section (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1303). By necessity, the courts were forced to apply this interest section to Commission proceedings, wherein such an issue would frequently rise. No such necessity is presented by the appeal at bar.

As the employer points out, other subsections of section 19, namely, 19(k) and 19(1), provide only penalties to be assessed in favor of claimant. In contrast, section 19 does not provide for penalties to be levied against the claimant. Given this background, it is evident to us that the Act in general and section 19 in particular are intentionally silent regarding sanctions against claimant and his counsel for frivolous pleadings. Accordingly, we shall not read into the Act sanctions against claimant imposed under Supreme Court Rule 137.

On cross-appeal, claimant argues that the employer was not entitled to a credit for overpayment of TTD benefits because this issue was not raised at arbitration. Claimant refers to section 7030.40 of the Commission rules, which states as follows:

“Before a case proceeds to trial on arbitration, the parties (or their counsel) shall complete and sign a form provided by the Industrial Commission called Request for Hearing. However, in the event a party (or his counsel) shall fail or refuse to complete and sign the document, the Arbitrator, in his discretion, may allow the case to be heard and may impose upon such party whatever sanctions permitted by the law the circumstances may warrant. The completed Request for Hearing form, signed by the parties (or their counsel), shall be filed with the Arbitrator as the stipulation of the parties and a statement of the questions in dispute in this case.”

Claimant asserts that in the subject “Request for Hearing” form, the overpayment was not listed as an issue and, accordingly, that issue was waived at arbitration. Claimant additionally points out that the record contains no such “Request for Hearing” form. In fact, the record before us contains nothing from the arbitration hearing other than the arbitrator’s decision.

An appellant has the duty to present a complete record on appeal and, in the absence of an adequate record, it will be presumed that the evidence is sufficient to support a judgment appealed therefrom. (Wyman-Gordon Co. v. Bernardi (1985), 135 Ill. App. 3d 685.) Here, without the relevant document(s) in the instant record, we can only find that the overpayment issue was properly decided below.

Claimant’s last issue is that he did not have sufficient notice of the employer’s petition for sanctions and petition for order of repayment. Again, claimant has not presented a complete record which includes the subject documents for review. Consequently, we find that this issue was properly decided below.

For reasons stated above, we affirm the circuit court’s judgment.

Affirmed.

McCULLOUGH, P.J., and RAKOWSKI, SLATER, and RARICK, JJ., concur.


author: PRESIDING JUSTICE INGLIS

text:
    EVANS AND ASSOCIATES, INC., Plaintiff-Appellee, v. SANDRA DYER, f/k/a Sandra Schwander, Defendant-Appellant (Russell Schwander et al., Defendants).
    Second District
    No. 2 — 92—0964
    Opinion filed June 7, 1993.
    Rehearing denied July 20, 1993.

      Grief, Bus & Konewko, of West Chicago (Dalton P. Grief, of counsel), for appellant.
    Kupisch, Hunt, Carbon, Kaiser & Bush, of Bensenville (John R. Bush, of counsel), for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

In this case, defendant, Sandra Schwander (now Sandra Dyer), appeals from a judgment rendered in a bench trial by the circuit court of Du Page County. The court awarded $22,719.83 to Evans and Associates, Inc. (the contractor), in its suit to recover sums it alleged were due for the construction of a custom home for Sandra and her then-husband, Russell Schwander (the buyers), in Bartlett, Illinois.

At trial, the parties disputed whether the home was built in a workmanlike manner. On appeal, Sandra argues (1) that the trial court should not have permitted the contractor’s vice-president, Michael Evans, to testify as an expert because there was no disclosure of the basis of his opinion; (2) that an exhibit regarding the structural integrity of certain beams installed in the home’s great room should not have been admitted; (3) that the court should have allowed the buyers’ architect to testify that the contractor did not comply with the building plans; and (4) that the trial court erred in refusing to grant their motion for judgment in their favor, made after the close of the contractor’s case in chief.

Trial Proceedings

The contractor’s first amended complaint alleged causes of action for breach of contract, foreclosure of a mechanics’ lien (see Ill. Rev. Stat. 1991, ch. 82, par. 1 et seq.) and recovery under the theory of quantum meruit. At trial, the contractor called Russell Schwander and Michael Evans as witnesses. The buyers called their architect, Ed Faron, Sandra Schwander, Michael Evans, and Geri Mazel, a Du Page County records office employee.

Russell Schwander testified as an adverse witness (see Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1102) that he and his then-wife Sandra hired the contractor to build them a home for $35,500 plus costs of labor and materials. He stated that two beams in the home’s great room were installed upside down and had cracked entirely through their length. The roof in that area had also begun to crack. There were a hole in the garage floor about the size of a half-dollar and approximately 15 footprints in the garage floor. Additionally, the pipes in the guest bathroom would freeze, a stone sill in front of the front door was missing, and water gathered where the patio joined the house. Two trapezoid windows in the great room were too close to the fireplace, and a room above the garage was built incorrectly, resulting in a greater floor-to-ceiling height in the room and an inadequate floor-to-ceiling height in the garage. This inadequate height in the garage caused the garage door opener to be installed directly against the garage ceiling instead of hanging a distance away from the ceiling, and caused the tops of the garage windows to reach the garage ceiling. Further, the garage overhang was bowed. Finally, a second pour of the foundation was required and the home thereafter had seepage problems in the basement.

Russell also stated that the home’s defects never threatened his health or safety and that he had lived in the home until marital problems with his wife spurred his move. He acknowledged that the plans for the home were drawn with a different building site in mind. He also stated that he had not paid the contractor the full price agreed upon. Russell further testified that he had talked with the supplier of the support beams and was informed that although the beams were installed incorrectly, the supplier would warrant the structural characteristics of the beams as installed. Russell admitted that he had received a copy of a letter written by a third person to the supplier stating that the beams were structurally sound.

The contractor then called its vice-president, Michael Evans. Evans had been a general contractor for five years and had received a bachelor of science degree in architecture from Iowa State University. He testified that he had signed a contract with the buyers and had not been fully paid. He further testified as to the manner in which the house was constructed, the problems encountered along the way and his attempts to solve those problems with the buyers. He admitted that two of the beams in the great room were installed upside-down.

He also stated that the reason the trapezoid windows in the great room were too close to the fireplace was that the buyers had changed the plans from a brick fireplace to a stone one, which jutted out farther than a brick one would have and correspondingly shrank the distance between the sides of the fireplace and the adjacent windows. Evans admitted that the pitch of the patio did not conform to the plans, that having two foundation pours did not conform to the plans, that the garage overhang was bowed, and that the room above the garage did not conform to the plans. Evans also testified as to the amounts due his company and various subcontractors.

The buyers then made a motion for a directed finding. This motion was denied, and the buyers began their case by calling their architect, Ed Faron. Faron testified that he drew the plans for the buyers but did not have “substantial interaction” with Evans during construction. The trial judge allowed Faron to testify about his services and his observations when he visited the site, but did not allow him to testify as to whether the house as constructed deviated from the plans because Faron was not disclosed as an expert witness pursuant to Supreme Court Rule 220 (134 Ill. 2d R. 220).

Sandra Schwander then testified for the defense about the progress of her home’s construction. She also identified photographs showing alleged defects in the home and testified about some of the defects earlier listed by Russell Schwander. Specifically, Sandra stated that the great room had windows which were to open and shut with a crank. The windows cranked open but had to be both cranked from the inside and pushed from the outside in order to close. She stated that the windows did not achieve a complete seal when closed. Sandra also testified that the beams in the great room cracked loudly in cold weather. It was also Sandra’s testimony, with regard to the bowed garage overhang, that she and Russell had changed the plans for the overhang, but that the change was necessitated by the deviation from the plans when the room above the garage was constructed. Sandra further explained her negotiations with the contractor to address her concerns.

Michael Evans was called as an adverse witness by the buyers. (See Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1102.) He elaborated on some of the problems he encountered during construction and explained how the subcontractors were paid. Evans also testified about amounts unpaid by the buyers at the time of trial and identified various final lien waivers.

Finally, Sandra Schwander testified that she did not recall receiving the final lien waivers but that she did remember receiving a statement from the contractor together with certain invoices.

Following closing arguments, the trial judge rendered judgment for the contractor on the breach of contract and mechanics’ lien claims. The judge then found the quantum meruit claim moot. Sandra timely appealed.

ANALYSIS

1. THE LETTER

We address first the issue of whether the trial court should have admitted a letter written by an alleged structural engineer to the supplier of the beams that were admittedly installed upside down in the great room. At trial, Russell Schwander testified that he received a copy of the letter from Evans, and Russell agreed with the contractor’s attorney’s characterization of the letter as stating that “the beams were installed properly and meet all requirements, both county, state and federal, for the support of the roof in [his] home.” Mr. Schwander also agreed that he received a certificate signifying that the supplier or manufacturer would, again in the words of the contractor’s attorney, “warranty the structural characteristics of the beams installed at [his] home.” Michael Evans testified that the same letter set forth that its writer, John Frederick, was an Illinois registered engineer.

Sandra contends that the letter should not have been admitted because (1) it was not disclosed pursuant to Supreme Court Rule 220(c) (134 Ill. 2d R. 220(c)) as the basis for Evans’ expert opinion; (2) it was hearsay; (3) it was irrelevant; and (4) no proper foundation was laid.

The contractor argues that the letter was properly admitted for the purpose of explaining expert testimony by Michael Evans regarding the structural integrity of the beams. The contractor further argues that it presented a proper foundation for admission of the letter as a business record under Supreme Court Rule 236. 134 Ill. 2d R. 236.

First, we disagree with the parties that Michael Evans testified as an expert regarding the structural integrity of the beams. We have closely reviewed the testimony given by Mr. Evans and nowhere were qualifications presented that would have allowed him to express an opinion on structural engineering issues. Moreover, Evans never explicitly stated that, in his opinion, the great room beams were sound. At one point in the trial, Evans stated, without explanation, that the beams were not defective. At another point, Evans merely noted that the beams had been checked out by the alleged engineer who had written the letter to the supplier and that the buyers had received a warranty from the supplier on the beams as installed. Evans admitted that he did not know that the beams had been installed upside down until he was notified of that fact by the buyers. Further, Evans gave an evasive answer when asked about the beams on cross-examination:

“Q. And you conceded that two of these three beams, which are bearing beams for the house, were not installed properly; is that correct?
A. That is correct.
Q. So in fact this would be a defect, would it not?
A. No, it would not.
Q. If it’s not — if they are not installed in connection with the plans, is not a deviation from the plans a defect?
MR. BUSH: Objection, asked and answered.
THE COURT: Overruled. You can answer.
THE WITNESS: In one’s opinion, maybe so.”

Consequently, we believe that the letter could not have been properly admitted for the purpose of explaining Evans’ expert testimony because Evans never testified as an expert concerning the beams.

Next, we reject the contractor’s claim that a proper foundation was presented for the letter to be admitted as a business record. Supreme Court Rule 236 (134 Ill. 2d R. 236) allows certain types of business records to be admitted as exceptions to the hearsay rule. Rule 236 provides in pertinent part:

“(a) Any writing or record, whether in the form of any entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but shall not affect its admissibility. The term ‘business,’ as used in this rule, includes business, profession, occupation, and calling of every kind.” 134 Ill. 2d R. 236.

In order for the business records exception to be applicable, it must be shown that the record was made in the regular course of business and that it was a regular business practice to create such a record. (Bass v. Washington-Kinney Co. (1983), 119 Ill. App. 3d 713, 727.) In this -case, not only was there no testimony from the letter •writer or anyone affiliated with him, but also the above foundation questions were never asked of any witness who testified. Thus, it is clear that the letter was not admissible as a business record.

The trial court below simply admitted the letter without elaborating as to the.basis for its admission. We believe the letter was clearly hearsay and was not shown to be within any exception to the hearsay rule. “Hearsay evidence is in-court testimony or written evidence of a statement made out of court which is offered as an assertion of the truth of the matters contained in the out-of-court statement.” (Hengels v. Gilski (1984), 127 Ill. App. 3d 894, 912.) The rule that hearsay is generally not admissible is not merely a technical one, but rather is “fundamental,” as it is based on the need for cross-examination. In re Marriage of L.R. (1990), 202 Ill. App. 3d 69, 81.

Here, it is obvious that the statements contained in the letter from the alleged engineer to the ¡beam supplier were out-of-court statements. Moreover, the- letter was relied upon, at least in part, by the trial court to show not only that the beams were adequately tested by a competent individual, but also that they were structurally sound. This was incorrect. It is unknown just what the alleged engineer’s qualifications were, what test or tests were performed, whether such tests are commonly performed on beams such as these, or what the test results were. The letter was hearsay and should not have been admitted as substantive proof.

2. EVANS’ EXPERT TESTIMONY

We next address Sandra’s claim that Michael Evans should not have been allowed to offer expert testimony in the field of structural engineering because the basis for his opinion, namely, the letter written to the beam manufacturer, was not disclosed to the buyers pursuant to Supreme Court Rule 220(c) (134 Ill. 2d R. 220(c)). This issue is a red herring because, as we have previously found, Mr. Evans did not testify as an expert on the beams’ structural soundness. Rule 220, which pertains to expert witnesses, is thus inapplicable to the testimony of Mr. Evans, at least with regard to the beams. In any event, the buyers never objected to Mr. Evans’ testimony on the basis of Rule 220 at trial. Consequently, any complaint on appeal that the requirements of Rule 220 were not satisfied is waived. Baird v. Adeli (1991), 214 Ill. App. 3d 47, 65.

3. MOTION FOR JUDGMENT

Next, Sandra argues that the trial court erred in refusing to grant the buyers’ motion for a directed finding made at the close of the contractor’s case in chief. When a defendant in a nonjury civil case makes a motion for judgment in its favor after the plaintiff has presented its case in chief, that motion is made pursuant to section 2 — 1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1110). According to that section and the case law, a defendant who presents evidence on its behalf after its motion is denied waives any complaint that the denial of the motion was error. (City of Elgin v. Hawthorne (1990), 204 Ill. App. 3d 807, 810; Fear v. Smith (1989), 184 Ill. App. 3d 51, 55.) Thus, Sandra’s claim is waived.

4. SUBSTANTIAL PERFORMANCE-SUFFICIENCY OF THE EVIDENCE

When reviewing the evidence in its entirety in this case, we believe that the contractor did not carry its burden of proving substantial performance. Generally, a builder is not required to build a perfect structure. Rather, he is required to substantially perform in a workmanlike manner. (Howard v. Jay (1990), 203 Ill. App. 3d 539, 544.) Our supreme court reiterated the relevant- standard in a recent building contract case:

“ ‘Substantial performance of a contract means performance in all the essential elements necessary to the accomplishment of the purpose of the contract. [Citation.] “Substantial” means in substance; in the main; essential, including material or essential parts. [Citation.]’ ” (W.E. Erickson Construction, Inc. v. Congress-Kenilworth Corp. (1986), 115 Ill. 2d 119, 126, quoting People ex rel. Peterson v. Omen (1919), 290 Ill. 59, 65-66.)

A buyer who receives substantial performance in a workmanlike manner from a builder must pay the contract price minus an offset as compensation for defects in the structure. (Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 673.) “In substantial performance cases, the burden is on the contractor to establish the elements necessary to substantial performance recovery and, also, to show the amount he should recover.” Delta Construction, Inc. v. Dressler (1978), 64 Ill. App. 3d 867, 871.

We realize that a sufficiency-of-the-evidence argument has not been made on appeal, but we note that we are authorized under Supreme Court Rule 366(a)(5) (134 Ill. 2d R. 366(a)(5)), in our discretion, to “enter any judgement and make any order that ought to have been given or made, *** and grant any relief *** that the case may require.” We are also cognizant of our supreme court’s recent caveat that an appellate court should not raise new questions sua sponte when the questions might have been refuted or overcome if they had been raised at trial. (Geaslen v. Berkson, Gorov & Levin, Ltd. (1993), 155 Ill. 2d 223, 230.) In Geaslen, a law firm that had drawn up an opinion letter to be delivered to a corporation’s owners regarding the creditworthiness of the firm’s client to buy the corporation was sued by the corporation’s owners after the client went bankrupt following the sale and the stock, now worthless, was returned to the owners. The trial court found that the firm owed no duty of care to the owners and dismissed the owner’s complaint with prejudice. (Geaslen, 155 Ill. 2d at 227.) The appellate court found that a duty of due care was owed by the firm to the owners. (Geaslen, 155 Ill. 2d at 227.) The appellate court then raised the issue of breach sua sponte, found that the owners failed to plead a breach, and affirmed the dismissal of the complaint with prejudice based on the failure to plead a breach. (Geaslen, 155 Ill. 2d at 227.) The supreme court held that the appellate court’s actions were improper because the defective pleading would probably have been correctable if the defect had been noted in the trial court. Geaslen, 155 Ill. 2d at 230.

Unlike Geaslen, where the owners were never put on notice that the sufficiency of their complaint on the issue of breach would be considered, the issue of substantial compliance was the main issue to be litigated in this case. The contractor’s ability to recover hinged on its ability to prove substantial performance. Thus, it is not unfair for us to raise the sufficiency of the evidence to support the judgment on our own initiative.

The question of whether a builder has substantially performed under the contract is a question of fact. (Erickson, 115 Ill. 2d at 127.) Thus, to reverse, we must find that the trial court’s conclusion that the contractor substantially performed is against the manifest weight of the evidence. (Erickson, 115 Ill. 2d at 127.) A factual finding is against the manifest weight of the evidence when a contrary conclusion is clearly evident. V & V Cement Contractors, Inc. v. La Salle National Bank (1983), 119 Ill. App. 3d 154, 157.

The evidence in this case showed the following defects: (1) the pipes in the guest bathroom are prone to freezing; (2) there is seepage of water in the basement; (3) load-bearing beams in the great room were installed upside down, have cracked along their length and apparently continue to do so; (4) water collects on the patio; (5) trapezoid windows next to the fireplace in the great room directly abut the fireplace when they were supposed to be separated from the fireplace by a certain amount of wall; (6) the house does not have the front sill called for in the plans; (7) the ceiling in the garage is too low, causing the chain in the automatic garage door opener to dig into the ceiling’s drywall; (8) there is a bow in the roof of the garage at the overhang; and (9) windows in the great room, which are meant to be operated with a crank, need to be both cranked from the inside and pushed from the outside in order to close and, even then, a complete seal is not achieved.

Of these nine defects, we will not consider two for the purposes of our substantial performance analysis because it is certainly arguable that the buyers accepted the contractor’s performance as to these two defects. (See Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 673-74 (whether, and to what extent, homeowners accept builder’s performance relates to amount of damages recoverable by builder).) First, we will not consider the seepage in the basement because the buyers accepted from the contractor a letter in which the contractor agreed to be responsible for any damages resulting from defects in the foundation. Second, we will not consider the fact that the garage ceiling was built too low. The buyers were informed that a ceiling beam had been placed too low and they gave their approval to construct the ceiling at the lower level. It is not clear from the record, however, whether the buyers were informed of the ramifications of their decision, i.e., that the garage windows would abut the ceiling and that the garage door opener would not be able to be suspended from the ceiling.

Thus, we are left to consider whether a builder has substantially performed when he builds a house in which load-bearing beams crack along their length, pipes freeze, a patio collects water, windows refuse to close correctly, a garage overhang bows, a front sill is missing and windows abut a structure, all in derogation of the building plan. We find that he has not.

While some of the defects here seem minor and one is apparently only cosmetic, a few are potentially serious. The most obvious defect is the incorrectly installed and cracking beams in the great room. There was no admissible evidence that the beams are structurally sound. Further, the evidence that the buyers received a warranty of some kind from the beam supplier on the beams as installed, while implicitly showing that the supplier thinks the beams are structurally sufficient, does not adequately substitute for evidence of the beams’ structural integrity. All the warranty means is that the buyers will have a claim against the supplier if the beams fail.

Another potentially serious defect is the patio that allows water to collect. The water could cause problems with the home’s foundation and could present a danger of injury. Further, the bow in the garage overhang could be a signal that all is not well structurally with the garage. Although there was evidence that the house passed county inspections, there was no evidence as to how the inspections were done or whether these defects were called to the inspectors’ attention.

In George Butkovich & Sons, Inc. v. State Bank (1978), 62 Ill. App. 3d 810, this court reversed a finding that a builder had substantially performed in a workmanlike manner in constructing a house. In Butkovich, the builder failed to install water stops, wire mesh under the basement floor, or underground garbage cans; failed to recess glass blocks; failed to construct the project at the proper elevation; and was responsible for cold joints and honeycombs in the concrete. (Butkovich, 62 Ill. App. 3d at 812-14.) The court noted that its decision to reverse was based on both omissions from the contract and evidence of poor quality workmanship. Butkovich, 62 Ill. App. 3d at 814.

Similarly, in Folk v. Central National Bank & Trust Co. (1990), 210 Ill. App. 3d 43, this court held that the trial court’s finding that a blacktop contractor substantially performed improvements to an automobile racing dragway was against the manifest weight of the evidence. There, the contractor applied an uneven layer of asphalt that was, on average, slightly below the depth called for in the contract. The uneven surface would cause drivers to experience “a washboard effect.” (Folk, 210 Ill. App. 3d at 55.) There was testimony that portions of the track would have to be repaired or replaced. Moreover, a national drag racing association had called the dragway unsafe and had refused to sponsor further events there. (Folk, 210 Ill. App. 3d at 55.) However, there was also testimony tending to show that the defects in the dragway were relatively minor and that the track’s condition improved with time. Folk, 210 Ill. App. 3d at 47-49.

Although the facts here are closer to Butkovich than to Folk, both cases are instructive. Here, as in both Butkovich and Folk, the project as completed shows numerous defects. Moreover, a number of the defects, especially the cracked load-bearing beams, can be considered serious problems. We believe the trial court’s conclusion that the contractor proved that it substantially performed in a workmanlike manner is in error, in that a contrary conclusion plainly appears.

When a builder does not substantially perform under a contract, he is limited to claiming damages under a theory of quantum meruit. These damages are equal to the reasonable value of his services minus the amount of damages suffered by the buyers. (Howard v. Jay (1990), 203 Ill. App. 3d 539, 544; Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 673.) In this case, the contractor’s quantum meruit claim was found to be moot because the contractor was awarded the contract price. On remand, quantum meruit damages should be considered, as should the issue of the buyers’ acceptance, if any, of the contractor’s performance. Further, our decision to reverse on the substantial performance issue obviates the need to discuss Sandra’s claim that the trial judge should have allowed the buyers’ architect to testify as an expert on the home’s conformance to the building plans.

For the above reasons, we reverse the judgment of the circuit court of Du Page County and remand the cause for further proceedings consistent with this opinion.

Reversed and remanded.

GEIGER and DOYLE, JJ., concur.


author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MIGUEL SIERRA HERNANDEZ, Defendant-Appellant.
    Second District
    No. 2 — 91—0287
    Opinion filed June 18, 1993.

      G. Joseph Weller and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, for appellant.

      David R. Akemann, State’s Attorney, of Geneva (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

The defendant, Miguel Sierra Hernandez, and three codefendants were charged by indictment with the murder of Guadulupe Jaimes. The indictment alleged that the defendant beat Jaimes on the head and neck, then cut his throat with a knife. Defendant’s case was severed from that of the three codefendants for trial. A Kane County jury found defendant guilty of first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(1)), and the court sentenced him to a 35-year term of incarceration. On appeal defendant contends that he should be granted a new trial because (1) his trial attorney had a conflict of interest, (2) his trial attorney and the court-appointed attorney who represented him on post-trial motions provided ineffective assistance of counsel, and (3) the trial court committed reversible error by allowing the State to introduce prejudicial evidence about the victim’s family-

Relevant facts produced at trial indicated that the body of Guadulupe Jaimes (Lupe) was discovered near a city park adjacent to the Fox River in Elgin, Illinois. Broken tree limbs with traces of the victim’s blood on them were found near the body. Police recovered a knife, later identified as the one used to cut the victim’s throat, from the Fox River. Defendant, together with Antonio Mendez and Antonio’s cousins, Juan Mendez and Roberto Aguilar, were arrested for the murder.

During trial, the State introduced evidence that, following his arrest, defendant told the police through an interpreter that he, the other defendants, and the victim were at the Fox River drinking beer when a fight occurred between Roberto and the victim. After they calmed down, defendant picked up a small tree branch and hit the victim a couple of times, “just goofing around.” In retaliation, the victim pulled out a metal chain with a lock at the end; however, Antonio took the chain and threw it in the river. The group then continued their beer drinking.

As the victim was departing, he stated that he was going home to get his brothers to return and “get” the defendant. In response, the defendant got mad and went after the victim. Although Antonio attempted to stop defendant, defendant hit the victim several more times with a tree limb until he was knocked to the ground and then hit him one more time while he was down. Defendant’s companion stated that if the victim was not dead it would be bad for defendant. Defendant then obtained a knife from the car in which the group had driven to the park. Resisting Antonio’s efforts to stop him, defendant slashed the victim’s throat and threw the knife in the river. After-wards, Roberto departed the area by bicycle, and defendant drove Antonio and Juan home.

Defendant next picked up his girlfriend, Linda Lara, and her young daughter, and drove to an Elgin motel where they were residing. At the motel, defendant put his clothes and shoes in a garbage dumpster. In his statements to police, defendant denied telling his girlfriend the details of all that happened, but instead told her only that he had gotten into a fight with Roberto.

Linda Lara, called to testify as a State witness, stated that she was defendant’s former fiancee. Before he was arrested, a June wedding had been scheduled. Prior to his arrest, defendant was a close friend of Antonio and saw him about every day. On June 5, the day of the alleged murder, she had driven defendant, Antonio and Juan to work at a construction site. Because it rained, they worked only part of the day. Thereafter, defendant went out with Antonio and Juan in Linda’s car while Linda waited for him at Antonio’s residence.

When defendant returned at 9:30 p.m., his shirt was ripped and his face smudged. Although defendant previously had been painting barns, Linda speculated that the red spots on his clothing may have been blood. At the motel later that night, the witness asked defendant why he was throwing out his clothes. He told her that he had cut the victim’s throat. She did not recall if defendant told her he had hit the victim with a tree branch. This last testimony, however, was impeached with a taped statement Linda had made to the police on June 11, in which she indicated that defendant told her he had hit the victim with a tree limb.

Linda further testified that defendant never told her he was forced to injure the victim. Too, the day after the killing, while driving defendant, Antonio, and Juan to work, she heard defendant say that the victim was a “poor-stupid guy.” Finally, according to Linda, the defendant was a heavy drinker and quite often got drunk with Antonio. On cross-examination, Linda said defendant was very drunk when he picked her up the night of the killing. About an hour before he picked her up that night, she saw him drive up to Antonio’s house and then pull away very fast, although she did not tell this to the police in her taped statement because it seemed at the time a minor point.

When called as a defense witness, Linda stated that on June 10, the day defendant was arrested, she was driving defendant and her daughter from Elgin to Waukegan. Defendant was lying down in the car’s backseat area because he was tired. The police, who had followed Linda from Elgin, stopped the car after observing defendant in the rear seat and arrested defendant. Linda stated that at the time of defendant’s arrest she was unaware of any outstanding warrants for his arrest.

When called as a witness in his own behalf, defendant retracted virtually the entire statement he had given to the police at the time of his arrest. He testified that he had falsely incriminated himself because Antonio had threatened to kill Linda and her child if defendant told the police that it was Antonio and Roberto who had beaten Lupe with the tree limbs. As for the true story, defendant stated that the victim and Roberto had a fist fight. After the fight, Roberto pulled a knife on the victim, but Antonio took the knife away. The victim then accosted the defendant for helping break up the fight between him and Roberto. The victim took from his clothes a chain with a lock at the end and threatened defendant; however, Antonio took the chain and threw it in the river. The victim then accosted Antonio for throwing his chain in the river. A short time later, Antonio attempted to take the victim’s jacket from him. As a result, Antonio and the victim started to fight. Roberto entered into the fight by picking up a stick and hitting the victim. Antonio also picked up a stick and struck the victim until he collapsed. Defendant told Antonio and Roberto to calm down, but Antonio hit the victim twice more on the head while he lay on the ground. At this time, defendant believed the victim had died from the beating.

Defendant, Antonio and Roberto returned to the car and started to drive to Antonio’s residence. On the ride back, Roberto told defendant they would kill him if he told the police. After driving almost to the residence, Antonio pulled a knife on defendant and told him to drive back to the location of the victim’s body. Roberto and Antonio, armed with knives, took defendant to the victim’s body, and Antonio told him to cut the victim’s throat. When defendant refused, Antonio threatened to cut defendant’s throat. Antonio then gave defendant a knife and pushed him onto the victim’s body. Believing him to be already dead, defendant cut the victim’s throat. Antonio and Roberto then had defendant throw the knife into the river. Later, Antonio and Roberto threatened to kill defendant’s girlfriend and child if he told the police about the killing. Although defendant testified that, prior to the killing, he had consumed 15 beers, smoked one marijuana cigarette, and was very intoxicated, he denied ever striking the victim with a stick. Defendant’s belief that the victim was already dead when defendant cut his throat was supported by the autopsy physician’s testimony that the victim died from blunt trauma to his head and larynx before his throat was cut.

Shortly after the killing, defendant picked up Linda at Antonio’s residence, and the two of them returned to the motel. Defendant told Linda to place the clothes he wore that evening in a dumpster. When she refused, defendant placed the clothes in the dumpster. On cross-examination defendant admitted that, on the night of the killing, he told Linda that Roberto and the victim had been in a fight; that he, the defendant, had beaten the victim with either logs, branches, or tree limbs; and that he had slashed the victim’s throat and thrown the knife in the river. Defendant claimed he told Linda that story because of the threats by Antonio and Roberto, although he did not tell Linda that he had been threatened. Defendant denied that he knew the police were looking for him prior to his arrest. Defendant, who was age 34 at the time of the trial, stated that he grew up with Antonio, having known him since he was eight years old, and they were the best of friends. Roberto and Juan were Antonio’s first cousins, and defendant was good friends with each of them.

Defendant first argues that his trial attorney had a conflict of interest, either per se or one resulting in substantial prejudice. In support of his argument, defendant observes that Linda Lara, a State’s witness, paid the fees for his attorney and that his attorney had two years previously been Linda’s lawyer in her divorce case. In support of his substantial prejudice argument, defendant points out that his attorney (1) did not cross-examine Linda as to certain parts of her testimony, and (2) did not call defendant as a trial witness to deny that Linda drove him and Antonio to work the day following the alleged murder and to rebut Linda’s testimony that he stated the victim was a “poor-stupid guy.” Defendant also relies on points one and two to support his complementary argument that his trial attorney provided ineffective legal assistance.

The fact that Linda Lara paid the attorney fees for defendant’s trial was first brought to the court’s attention when defendant’s counsel, following post-trial motions and sentencing, appeared in court on a motion to appoint the appellate defender for purposes of appeal and the following dialogue occurred:

“THE COURT: Did I appoint the Appellate Defender?
MR. CANNING [defense attorney]: No, you didn’t, Judge. That’s what I am here to ask the Court to do.
MR. RAGO [State]: That’s what we are here to do today.
THE COURT: I have to have a hearing to see if he has no money.
MR. CANNING: Judge, in my petition I have sworn under oath as a representative of court that — as you may remember, he testified at the last hearing date he had no property, the Defendant, or income.
THE COURT: You were paid by the girlfriend, weren’t youl [Emphasis added.]
MR. CANNING: Yes. And-
THE COURT: All right.”

It is abundantly clear that the right to effective assistance of counsel under the sixth amendment to the Constitution of the United States entitles the criminal defendant to the undivided loyalty of counsel, free from conflicting interests or inconsistent obligations. (People v. Flores (1989), 128 Ill. 2d 66, 83, citing Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457.) Where defense counsel has represented a State’s witness, a per se conflict of interest exists if “ ‘the professional relationship between the attorney and the witness is contemporaneous with counsel’s representation of the defendant.’ ” (Flores, 128 Ill. 2d at 83, quoting People v. Free (1986), 112 Ill. 2d 154, 168, and referencing People v. Robinson (1979), 79 Ill. 2d 147, 161; People v. Strohl (1983), 118 Ill. App. 3d 1084.) Whether a per se conflict exists is dependent on the particular facts of each case. (People v. Grigsby (1977), 47 Ill. App. 3d 812, 817.) To determine whether a defense attorney has a conflict of interest, a court should look not to technicalities of the law of offer and acceptance for guidance; rather, the court should base the determination on a realistic appraisal of defense counsel’s professional relationship to someone other than the defendant under the circumstances of each case. (People v. Palmer (1986), 141 Ill. App. 3d 234, 241.) Where a per se conflict of interest is not established, it is the defendant’s burden to demonstrate prejudice resulting from any conflict of interest which may exist. Flores, 128 Ill. 2d at 84.

We find no per se conflict of interest based on defense counsel’s representation of Linda Lara in her divorce case or because Linda paid the fees of defendant’s trial attorney. The attorney’s representation of Linda Lara in her divorce case terminated long before he became defendant’s attorney in the murder trial. Because the attorney’s professional relationship relating to the divorce case was not contemporaneous with his representation of defendant, a per se conflict did not exist.

Defendant relies on the case of People v. Palmer (1986), 141 Ill. App. 3d 234, to support his argument that Linda Lara’s payment of attorney fees constituted a per se conflict. Palmer was convicted of aggravated arson and aggravated battery of his spouse. During the trial, defendant’s attorney attempted to withdraw because of a conflict of interest premised on defendant’s wife being a potential State’s witness, having paid some of defendant’s attorney fees, and owing a balance thereon. The court denied the motion to withdraw, and defendant’s wife voluntarily testified as a State’s witness on the aggravated battery charge. On appeal, the court reasoned that the positions of defendant and his wife were clearly antagonistic and therefore a per se conflict of interest existed. We find Palmer distinguishable from the case before us.

In Palmer, defendant’s wife was the victim of the crime. At times she wanted the charges dropped; at other times, she wanted defendant prosecuted. While the wife voluntarily testified at trial as a State’s witness, she also owed money to defense counsel. In contrast, Linda Lara was not the victim of defendant’s crime. There is no indication she wanted defendant prosecuted. On the contrary, because she was engaged to be married to defendant, it could be reasonably presumed she would not want defendant prosecuted. Importantly, the record does not show that she owed any balance of fees to defendant’s attorney.

Defendant fails to cite any authority supporting the position that the mere payment of defendant’s attorney fees coupled with testifying as the State’s witness, without further facts establishing obvious antagonism, constitute a per se conflict of interest. The bare fact that a third person pays the attorney fees for a defendant does not necessarily establish that the attorney is the attorney for the third party in a legal proceeding. There is nothing in the record to show that defendant’s attorney was retained by Linda Lara to provide legal advice to her or in any other way act as her lawyer in the traditional sense of that relationship. On the contrary, the facts indicate that Linda paid the attorney to represent defendant in the criminal proceeding against him, nothing more. We refuse to utilize speculation to create a situation, as suggested by defendant, in which the fees Linda paid the attorney were for the purpose of providing her legal advice or protection of her legal rights as to possible legal charges stemming from the death of Lupe.

Having decided that a per se conflict did not exist between defendant and his attorney, we are next called upon to decide whether defendant was prejudiced by the conflict of interest he alleges on appeal. As we mentioned, defendant points out that counsel previously represented Linda and that Linda paid counsel’s fees in this case. As a result, according to defendant, counsel did not fully and effectively cross-examine Linda Lara and did not call defendant as a witness to refute certain aspects of Linda’s testimony. The resolution of the prejudice issue requires us to apply the same principles we must use to decide defendant’s next issue, i.e., whether his attorney provided ineffective assistance of counsel. (See Free, 112 Ill. 2d at 169.) Accordingly, we will combine our discussion of these two issues.

The standard for showing a want of effective assistance of counsel stated in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and adopted by our supreme court in People v. Albanese (1984), 104 Ill. 2d 504, 525-27, is that the defendant must establish that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, were it not for counsel’s professional shortcomings, the result of the proceedings would have been different. When considering defendant’s claim of ineffective assistance of counsel, we entertain a strong presumption that defendant’s counsel acted within the wide range of reasonable, competent assistance. (People v. Johnson (1989), 128 Ill. 2d 253, 266; People v. Joyce (1992), 234 Ill. App. 3d 394, 408.) We also generally refuse to second-guess defendant’s attorney’s trial strategy. (People v. Potthast (1991), 219 Ill. App. 3d 714, 720; People v. Bell (1987), 152 Ill. App. 3d 1007, 1011.) In some cases, where counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, prejudice is presumed and defendant need not show- that his counsel’s errors resulted in actual prejudice. (United States v. Cronic (1984), 466 U.S. 648, 659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047; People v. Hattery (1985), 109 Ill. 2d 449, 461.) Courts will presume prejudice only in an extremely narrow class of cases where there has not been a true adversarial relationship between defendant and the State. People v. Watts (1992), 226 Ill. App. 3d 519, 523; People v. Pickett (1991), 217 Ill. App. 3d 426, 428-29.

First, defendant specifically argues that he was denied effective assistance with resultant prejudice when his attorney failed adequately to cross-examine Linda Lara’s testimony that she drove defendant, Antonio, and Juan to work the day following the alleged murder; that during the ride, defendant stated- the .victim was a “poor-stupid guy”; and that on the date of his arrest she drove defendant to Antonio’s house. Defendant also attacks counsel’s decision not to put him on the stand to rebut Linda’s testimony. Defendant asserts that prejudice resulted because Linda’s testimony inferentially contradicted his defense that Antonio’s threat to kill Linda and her baby compelled defendant to cut the .victim’s throat. The State responds that defense counsel’s decision not to attempt impeachment of Linda Lara’s testimony concerning defendant’s contacts with Antonio the day following the murder was a matter of trial strategy.

A defendant cannot generally make out a claim for ineffective assistance of counsel based on his counsel’s trial strategy. (People v. Shum (1987), 117 Ill. 2d 317, 370; People v. Madej (1985), 106 Ill. 2d 201, 214; People v. Whittaker (1990), 199 Ill. App. 3d 621, 628-29.) We believe that defense counsel’s decision not to impeach Linda Lara, either through more vigorous cross-examination or putting defendant on the witness stand to rebut her testimony, was a matter of trial strategy. The biggest obstacle defendant faced in the trial was rationally to explain away his statement to the police that he, and not Antonio and Roberto, caused the victim’s death by beating him with tree branches. Evidence based on the autopsy showed that the victim died as a result of injuries inflicted by being beaten with tree branches, not as a result of his throat being cut. Although the State impeached her with her prior inconsistent statement to the police, Linda gave support to defendant’s testimony by stating that she did not remember defendant telling her that he beat the victim with a tree branch. While she was again impeached, this time by her prior failure to tell the police, Linda nevertheless gave additional support to the defense by testifying that she saw defendant, Antonio, and Roberto between 8 p.m. and 8:30 p.m. on June 5 in a car which sped away from Antonio’s house without stopping. Linda further reinforced defendant’s testimony that he was extremely intoxicated when she observed him at 9:30 p.m. on June 5.

Focusing on evidence that his engagement to Linda had ended, defendant urges that Linda therefore had a possible motive to give false testimony, i.e., that she drove defendant and Antonio to work on June 6. We find this argument too specious to deserve comment. Defendant also argues that a possible reason for Linda lying is the possibility of the State charging her with being an after-the-fact accessory to the murder. However, the record nowhere reflects that Linda was aware the police were seeking to apprehend defendant prior to his arrest on June 10. Therefore, evidence of her aiding a fugitive was totally speculative.

The only parties having first-hand knowledge about the person or persons responsible for the victim’s death were defendant, Antonio, Roberto, and Juan. The last three of these were generally not available as witnesses for defendant because charges were pending against them for the victim’s murder. More so, Antonio and Roberto were not reasonably available because defendant accused them of the victim’s murder. Hence, Linda Lara was the only witness who could give some credibility to defendant’s defense. Under the circumstances, it would have been rather difficult for counsel to argue to the jury that they should believe Linda on certain aspects of her testimony and disbelieve her on others. Counsel himself indicated this when, before the court on post-trial motions, he stated that “[tjhere was one issue, Judge, where the witness, Linda Lara, had testified that the day after the murder, she drove the defendant, Miguel Hernandez, and several other individuals and Antonio Mendez to work. Mr. Hernandez had brought to my attention that Antonio Mendez was not in that car that morning, and, in my opinion, I chose not to open a can of worms by going into that morning after the murder.” In sum, we believe that the decision of defendant’s counsel not to impeach Linda Lara’s testimony by further cross-examination or putting defendant on the witness stand to give testimony contradicting Linda was a matter of trial strategy and did not fall below the objective standard of reasonableness required by Strickland. Thus, defendant cannot prevail on his claim of ineffective assistance of counsel. Nor can he succeed on his conflict of interest argument. A conflict, if any, did not result in a substandard performance on counsel’s part, and defendant, therefore, has not carried his burden of showing prejudice resulting from the alleged conflict.

Defendant next argues that the attorney appointed to represent him in post-conviction proceedings provided ineffective assistance because he failed to review the entire trial record and bring to the attention of the trial court the conflict of interest rising from trial counsel’s fee arrangement with Linda Lara. The court appointed separate trial counsel to represent defendant in his post-trial claim of ineffective assistance of trial counsel based on the trial attorney’s failure to impeach Linda Lara’s testimony concerning the incidents on June 6. Based on our review of the record, we find no merit in defendant’s argument.

The first record notice that Linda Lara paid defendant’s attorney fees was March 8, 1991, when the trial attorney appeared in court on post-trial motions. Defendant’s post-trial attorney was appointed to represent defendant for the limited issue of what had occurred during that part of the trial decided by the jury. Thus, even if defendant’s post-trial attorney reviewed the entire transcript relating to the jury aspect of the trial, he would not have discovered that Linda Lara paid defendant’s attorney fees. We find no ineffective assistance with respect to defendant’s post-trial attorney.

As a final matter, defendant asks that we find certain testimony concerning the victim’s family to be reversible error requiring a new trial. The State called the deceased’s father to testify. He entered the courtroom through a side door accompanied by his daughter, who was allowed to sit near him while he testified. After identifying his deceased son from a living photograph, he informed the jury, over the defendant’s continuing objection, that he had six remaining children: Irma, age 26; Angelina, age 23; Sacramento, age 21; Ernesto, age 20; Jose Luis, age 9; and Augustino.

Defendant relies on People v. Bernette (1964), 30 Ill. 2d 359, People v. Hope (1986), 116 Ill. 2d 265, and People v. Dukes (1957), 12 Ill. 2d 334, as his basis for legal error. In Bernette, the defendant’s conviction was reversed because there were numerous references throughout direct testimony and argument to the jury regarding the murder victim’s young children. The Hope and Dukes cases also concerned numerous references to the surviving spouse and children of the murder victim which were elicited by the State. A defendant’s guilt must be established by legal and competent evidence, and evidence in a murder prosecution that the deceased left a family has no relationship to the guilt or innocence of the accused but normally serves only to prejudice the defendant in the eyes of the jury. (Hope, 116 Ill. 2d at 275.) However, every mention of a deceased’s family does not per se entitle the defendant to a new trial, since in certain instances, dependent on the facts, such statements can be harmless; this is particularly true when the death penalty is not imposed. (People v. Hope, 116 Ill. 2d at 276.) “Common sense tells us that murder victims do not live in a vacuum and that, in most cases, they leave behind family members.” People v. Free (1983), 94 Ill. 2d 378, 415.

In examining the evidence that was introduced by the State concerning the family of the deceased, we note the following: the State’s stated purpose in eliciting information about the deceased’s family was to corroborate statements by the defendant to the police that he killed decedent partly because he was afraid of the decedent’s brothers. When the State asked the deceased’s father to state the names and ages of his sons, he nonresponsively added the names and ages of two daughters. Although defendant’s attorney made a continuing objection to testimony about the decedent’s family, no objection was made to the nonresponsive answers; nor did the State move to strike the nonresponsive answers. The only other indication of decedent’s family was the fact that the father’s daughter accompanied him to the witness stand. The challenged testimony does not rise to the level of error.

We find the cases defendant relies on to be distinguishable. In each, the State made numerous emotionally premised references to decedent’s family, consisting of spouse and children, in both the evidence and argument parts of the trial. In contrast, in defendant’s case, there was only one reference to the family — a family which consisted, not of a spouse and children, but instead brothers and sisters. This occurred only during the evidence portion of the trial. Moreover, the testimony relating to decedent’s adult brothers was arguably relevant as corroboration of testimony before the jury. Testimony about the sisters, while clearly not relevant, was volunteered. However, none of the testimony about decedent’s family was brought out in a manner which would inflame the jury. Consequently, the error was harmless.

The judgment of the circuit court is affirmed.

Affirmed.

INGLIS, P.J., and GEIGER, J., concur.