author: JUSTICE McNULTY

text:
    CLEVELAND WRECKING COMPANY, Plaintiff-Appellee and Cross-Appellant, v. CENTRAL NATIONAL BANK IN CHICAGO, as Trustee, et al., Defendants-Appellants and Cross-Appellees.
    First District (5th Division)
    Nos. 1 — 88—0826,1—88—1281 cons.
    Opinion filed June 28,1991.

      Brydges, Riseborough, Morris, Franke & Miller, of Chicago (Thomas A. Morris, Jr., and Thomas Gerling, of counsel), for appellants.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Gary W. Leydig, and Robert G. Black, of counsel), for appellee.
   JUSTICE McNULTY

delivered the opinion of the court:

On January 20, 1981, a contract was finalized between Cleveland Wrecking Company (Cleveland) and Contractors and Engineers, Inc. (C&E), in which Cleveland agreed to perform demolition and strip-out work on the Sheridan Plaza Apartments (Sheridan Plaza). While the contract identified the owner of the Sheridan Plaza project as the Egidi Group, title to the real property was in the name of Central National Bank, with beneficial ownership in Sheridan Plaza Associates, a limited partnership whose general partners were Mario, Robert, Kenneth and Dennis Egidi. All of the Egidis were also officers of C&E.

Sheridan Plaza, the subject of the demolition contract, was a 12-story building formerly used as a hotel. Its physical configuration was in the shape of a “U” with the opening facing south. Within the opening of the U-shaped area was a 21/2-story lobby. Connected to the east side of the main structure was a B^-story ballroom running north about two-thirds of the length of the main structure. The exterior walls of the southern facades of the lobby and ballroom were covered by terra cotta tiles. Extending out from the northeast one-third of the main building, and to the north of the ballroom, was a 12-story wing, topped by 13th- and 14th-floor penthouses.

The contract for demolition work called for: strip-out and demolition of the 12-story wing and the 13th- and 14th-floor penthouses; removal of the roof over the lobby of the main .building; and demolition of the entire 21/2-story ballroom, including the front wall and terra cotta facade. The strip-out and demolition work was preparatory to the owners’ plans to completely renovate and rehabilitate the remaining structure and to build a new structure in the former location of the ballroom and multistory wing.

While the contract specified no completion date, it indicated “time is of the essence.” The parties agreed when the contract was entered into that Cleveland’s work should be completed in mid-June 1981. However, delays pushed Cleveland’s demolition into July of 1981, when a general strike of operating engineers in the Chicago area caused it to halt all activity on the project. That strike ran until mid-September of 1981, at which time Cleveland was able to resume operations. Cleveland completed its job and left the Sheridan Plaza project on December 11, 1981.

In February of 1982, Cleveland filed a lien claim with the recorder of deeds against both C&E and the Egidi Group’s interests in the Sheridan Plaza building property. Cleveland later filed a complaint to foreclose the mechanic’s lien and for other relief against C&E, the Egidi Group, Mario, Kenneth, Dennis and Robert Egidi individually, the Sheridan Plaza Associates, and other defendants associated with the project or who claimed to have an interest in the property.

On January 15, 1988, following a four-week bench trial, the trial court found that Cleveland had perfected its lien rights on the Sheridan Plaza property and was entitled to a mechanic’s lien in the amount of $354,411.48 (which constituted damages flowing from C&E’s delays on the job as well as extras and the unpaid balance due Cleveland under the original contract), plus 5% annually. It further ordered that Cleveland was entitled to a judgment in the same amount under count II of its amended complaint (the breach of contract count), plus costs.

On February 4, 1988, the court entered a judgment of foreclosure and sale specifically adopting the findings of fact of the January 15 opinion and order. The court’s judgment order found C&E alone indebted to Cleveland in the amount of $460,007.67, representing a principal balance of $354,441.48 and interest at the rate of 5% per annum beginning January 11, 1982. The court also found in favor of Cleveland on the defendant’s counterclaim for damages. It further denied Cleveland’s subsequent motion for entry of judgment as against all additional named defendants.

C&E appeals from the February 4, 1988, judgment of foreclosure and sale and from the denial of its counterclaim against Cleveland. C&E also appeals the trial court’s denial of its motion to dismiss count I of Cleveland’s complaint. Cleveland appeals the denial of its post-trial motion to include all additional named defendants in the entry of judgment.

Opinion

I

In its appeal of the judgment of foreclosure and sale, C&E argues among other matters that Cleveland’s demolition work did not constitute a lienable activity under the Illinois Mechanics’ Liens Act (Ill. Rev. Stat. 1981, ch. 82, par. 1 et seq.). Cleveland contends that this issue has not been preserved for review, and that even if it has, case law and a liberal construction of the statute require this court to affirm the trial court’s finding that Cleveland’s work was lienable activity under the Mechanics’ Liens Act.

Cleveland asserts that C&E has not preserved its lienability claim for review based on the following procedural history: On August 9, 1982, C&E filed a motion to strike count I of Cleveland’s original complaint, arguing not only that Cleveland’s lien claim failed to meet the requirements of section 1 of the Mechanics’ Liens Act, but also that the claim for extras was substantially deficient as it failed to allege that such extras were ordered or approved by defendants. On October 19, 1982, the trial court denied the defendants’ motion to dismiss, though giving Cleveland leave to file an amended complaint. Cleveland filed an amended complaint, curing only the defects as to the extras issue. C&E answered, but never renewed its motion to strike. Cleveland therefore asserts that any objection to the denial of the motion to strike is waived on appeal.

In support of this argument, Cleveland cites Decatur Memorial Hospital v. West Lincoln Township (1976), 38 Ill. App. 3d 356, 347 N.E.2d 804. In Decatur, plaintiff filed an original and an amended complaint. The amended complaint cured the defect contained in the original. Defendant then appealed its motion to strike the original pleading. The reviewing court found that the issue raised by defendant was not properly before the court, as the pleading against which the motion to dismiss was directed had been superseded by amendment. The original motion to dismiss could not therefore be used to test the subsequent pleading; it was only valid as to the original. Decatur, 38 Ill. App. 3d 356, 347 N.E.2d 804.

The case at bar, like Decatur, contains a complaint, an amended complaint, a motion to strike the original complaint, and an appeal of the denial of the motion to strike. There the similarity ends. While the appealed motion to strike in Decatur involved a defect which had been subsequently cured, the present appeal does not. In the case at bar, the amended complaint did not revise or “cure” the original as to the grounds alleged in the motion to strike (the lienability of demolition work). Rather it cured the original as to its demand for extras. Thus, the original and amended complaints remain identical as to the grounds asserted in the motion to strike, making the reasoning in Decatur inapplicable.

Cleveland’s claim that C&E has waived its objection to the denial of its motion to strike by failing to renew such objection following the amended complaint is not supported by case law. In fact, to require a defendant to renew an objection to a pleading which had not been revised would be duplicative and a waste of the court’s time.

Assuming, arguendo, that the lienability issue has been preserved for review, C&E contends that the Mechanics’ Liens Act and the case law interpreting it do not support the trial judge’s finding that the demolition work and debris removal performed by Cleveland was lien-able activity.

The Mechanics’ Liens Act (Ill. Rev. Stat. 1981, ch. 82, par. 1) provides in relevant part that a lien shall be provided to:

“Any person who shall by any contract or contracts *** with the owner of a lot or tract of land *** to improve the lot or tract of land *** for the purpose of *** building, altering, repairing or ornamenting any house or other building *** or raise or lower any house thereon or remove any house thereto, or remove any house or other structure therefrom ***.” (The italicized language was added by amendment in 1980.)

Case law has recognized that the basis for such a lien is the performance of work or the furnishing of materials which constitutes an improvement on the land. (See Robinette v. The Servite Fathers (1977), 49 Ill. App. 3d 585, 587, 364 N.E.2d 679.) The focus of the inquiry to determine whether a mechanic’s lien should be granted is whether the work performed has enhanced the value of the land to be charged with the lien. D.M. Foley Co. v. North West Savings & Loan Association (1984), 122 Ill. App. 3d 411, 461 N.E.2d 500.

The overall intent of the contract between Cleveland and C&E was to prepare the Sheridan Road property for the completion of new construction work. For this purpose Cleveland was to use its expertise to strip out and demolish all existing structures which stood in the way of new construction. The demolition work was thus an integral part of the new construction. Relying on these facts, the trial judge found that Cleveland’s demolition work constituted a permanent improvement on the Sheridan Road property, and thus, was properly lienable.

In spite of the uncontroverted fact that Cleveland’s wrecking constituted an improvement on the land, thus ostensibly bringing it within the purview of the Mechanics’ Liens Act, C&E argues that case law, specifically Robinette v. The Servite Fathers (1977), 49 Ill. App. 3d 585, 364 N.E.2d 679, does not support such a finding. In this case, the plaintiff contracted to haul away debris after full demolition of a building by another party. The Robinette court found that the plaintiff was not entitled to a mechanic’s lien for merely hauling away debris. This court went on to state that hauling and demolition are not lienable activities as they do not fall within the express language of the relied-upon statute. Robinette, 49 Ill. App. 3d 585, 364 N.E.2d 679.

Cleveland contends that the Robinette decision should not control the outcome of the instant action as the ruling was overbroad and the language concerning demolition work was merely dicta. While Cleveland is correct that Robinette’s language concerning demolition is dicta (since such a finding was not necessary to the outcome of that case), this court may still consider and rely on such dicta if it finds this reasoning persuasive.

Cleveland further discredits any reliance on Robinette as this decision not only involved a different version of the Mechanics’ Liens Act, but is factually distinguishable from the case at bar. Robinette was decided under the 1973 version of the Mechanics’ Liens Act (111. Rev. Stat. 1973, ch. 82, par. 1), while the instant action involves the amended 1981 statute, which added the phrase “or remove any house or other structure therefrom.” Cleveland asserts that the new language expressly makes lienable what the Robinette court had found was not. The validity of this argument is apparent when the controverted phrases are compared. While the 1973 statute restricted coverage to raising or lowering any house thereon or removing any house thereto, the 1981 version expanded coverage to any house “or other structure” and included removing “therefrom” as well as the previous removing “thereto.” Certainly Cleveland’s demolition and hauling away of debris is encompassed by the “removing other structure therefrom” language. Although C&E argues that both versions of the statute should be similarly construed as both employ the same verb, “remove,” what it neglects to note is that the corresponding sections of the statute employ different adverbs, namely “thereto” and “therefrom,” which substantially change the meaning of their common verb.

Furthermore, as noted by Cleveland, Robinette is factually distinguishable from the case at bar. The Robinette plaintiff merely removed debris from a building someone else had demolished. Cleveland, on the other hand, contracted to strip out and demolish certain structures in order to make way for new construction. Cleveland’s work, unlike that of the Robinette plaintiff, was an integral part of an overall plan to improve the land, and thus, should be considered lien-able activity under the Mechanics’ Liens Act.

C&E also argues that even if Cleveland’s demolition work constitutes lienable activity, its removal of debris does not. C&E maintains that since the contract in question specified a lump sum for both types of work, the activities are inseparable and nonlienable. Illinois case law does support the proposition that where a lump sum contract includes both lienable and nonlienable work, and such items cannot be separated, the entire lien must fail. (Adler v. World’s Pastime Exposition Co. (1888), 126 Ill. 373, 18 N.E. 809; Flader Plumbing & Heating Co. v. Callas (1988), 171 Ill. App. 3d 74, 524 N.E .2d 1097.) What C&E fails to note about the above-mentioned cases is that both involve clearly demarcated lienable and nonlienable activities. Adler involved the nonlienable activities of keeping books, auditing accounts, and making settlements with various contractors. (Adler, 126 Ill. 373, 18 N.E. 809.) Flader concerned a plumber who admitted that certain items in his lien claim, such as plugged gas lines and connected water lines, were not lienable. (Flader, 171 Ill. App. 3d 74, 524 N.E.2d 1097.) The activities in the case at bar are not so clearly delineated as lienable and nonlienable. Rather, a liberal construction of the statute, considering its remedial purpose, leads to a finding that both are indeed lienable.

Furthermore, the demolition and debris removal as performed by Cleveland Wrecking are inseparable and interdependent activities, for without the demolition work there would be no debris to remove, and without the removal of the demolition debris the value of the property would not be enhanced. In Verplank Concrete & Supply v. Marsh (1976), 40 Ill. App. 3d 742, 353 N.E.2d 27 (a case cited by C&E to support the proposition that a lien must fail if lienable and nonlienable activities are combined), the appellate court held that even though truck rental is a nonlienable activity (since the concrete could not be mixed without the trucks), to deny plaintiff’s lien claim for concrete and truck rental would be to elevate form over substance and not in any way advance the purposes of the Mechanics’ Liens Act.

C&E additionally contends that the Mechanics’ Liens Act must be strictly construed as it created rights in derogation of common law. However, as Cleveland notes, Illinois courts have applied the rules of strict construction only as to the technical, procedural requirements of the Act. See Du Page Bank & Trust Co. v. DuPage Bank & Trust Co. (1984), 122 Ill. App. 3d 1015, 462 N.E.2d 25; Armco Steel Corp v. La Salle National Bank (1975), 31 Ill. App. 3d 695, 335 N.E.2d 93.

For the above-mentioned reasons, we find that Cleveland’s work constituted lienable activity within the meaning of the Mechanics’ Liens Act.

II

On appeal C&E also asserts that Cleveland, and not C&E and the owners, is responsible for project delays and resulting damages. The delays at issue relate to C&E’s changed decision regarding retention of the front ballroom wall (and Cleveland’s corresponding stoppage of work until a written change order was forthcoming) and its failure to timely install column 14A, a major support structure, the presence of which was integral to the demolition of the multistory wing.

In 1980, when Cleveland entered into the demolition contract with C&E, it developed a sequencing methodology for the job. This plan called for work to commence with the strip-out operations. Next, Cleveland was to totally demolish the 21/2-story ballroom. Although the original plan called for the entire ballroom to come down, the owners planned to save pieces of the terra cotta facade from the front wall. A third party would salvage the terra cotta for the owners ahead of time, after which Cleveland would initiate its demolition of the ballroom. On March 23, 1981, after the contract had been executed and the strip-out work had begun, Cleveland received formal notice from C&E that the entire front wall was to remain. Cleveland tried to obtain a written change order from C&E acknowledging the change in work as well as additional compensation. When none was forthcoming, Cleveland refused to proceed.

C&E argues that the change at issue was within the general scope of the contract, and that Cleveland was bound by article 12 of the general conditions of the contract for construction put out by the American Institute for Architects (AIA), and was required to continue with its work on the project and establish any extra costs at a later time. Cleveland points out that the AIA conditions were not attached to the contract and argues that such conditions were therefore not part of the contract. This argument fails because the conditions were incorporated by reference by the principal contract, and case law establishes that if conditions are incorporated by reference, a contractor may not neglect to read them. See Luczak Brothers, Ine. v. Generes (1983), 116 Ill. App. 3d 286, 451 N.E.2d 1267.

Assuming, arguendo, that the AIA conditions were a part of the contract, the trial judge found that such conditions were not controlling, as the change regarding retention of the front ballroom wall involved a major change in the scope of the demolition contract and justified Cleveland’s failure to proceed until a written change order acknowledging additional reasonable compensation was received.

Although case law does support the proposition that minor changes by the owner may be accepted as modifications, it also states that for a modification there can be no material change so as to constitute a radical or substantial departure from the original contract. (See Bulley & Andrews, Inc. v. Symons Corp. (1975), 25 Ill. App. 3d 696, 701, 323 N.E.2d 806, 810.) In the case at bar, C&E contends that Cleveland’s contract was not substantially changed by the decision at issue and in fact argues at one point that Cleveland’s work was actually decreased because it had less to demolish. This reasoning is inaccurate.

As a result of the decision to retain the front wall, Cleveland had to perform the delicate task of detaching the front wall without allowing it to be damaged by the surrounding demolition. To accomplish this, Cleveland deemed it necessary to leave the front wall attached to the balance of the ballroom as long as possible. The decision to retain the front wall not only entailed a slower, more delicate demolition operation, but also dictated a complete reversal of Cleveland’s demolition schedule and sequencing. Now, rather than beginning with the demolition of the ballroom front wall, and proceeding with the balance of the ballroom to the north, Cleveland had to work in the opposite direction, commencing with the multistory wing and working south toward the wall which was to remain. The manner of demolition also had to be modified by the changed decision as Cleveland could not risk the vibrations caused by a large wrecking ball.

Thus, the facts support the trial judge’s determination that the decision to retain the front wall, and the serious repercussions that decision had on Cleveland’s work sequence constituted a major change in the scope of its contract and entitled it to a written change order acknowledging the additional costs involved. Consequently, any delay resulting from this significant decision was correctly chargeable to C&E rather than Cleveland.

C&E also maintains that it was not properly notified, as required by contract conditions, of the cost of the extra work to be performed by Cleveland in connection with the ballroom wall. C&E negleets to note that Cleveland’s requests for meetings to discuss the change in demolition met with opposition at every stage. As the trial judge noted, when Cleveland did submit figures as to what it believed would be the increased cost to demolish the ballroom, leaving the front wall standing, C&E belittled the method used to arrive at the cost. C&E should therefore not be heard to complain that either notification or itemization was inadequate.

Cleveland further argues that the major delay in the demolition project was due, not to C&E’s failure to issue a written change order regarding the ballroom front wall, but to C&E’s failure to timely construct column 14A.

Running through the multistory wing to be demolished was a column — old column 14a. It supported each floor through an attached beam running east and west connected with another vertical column, column 14 in the main building. The demolition and removal of floors 1 through 12 of the multistory wing and the 13th- and 14th-floor penthouses required demolition and removal of old column 14a as well as the eastern half of the beam running between old column 14a in the wing and column 14 in the main building. However, the removal of these structural elements would have left the beam unsupported at the eastern end, in turn leaving each floor in the northeast corner of the main building unsupported. To remedy this, the architect’s plans called for construction of a new column 14A directly to the west of where the beam would be severed during construction. This new column 14A would run in a single line the full height of the building from the floor of the basement to the ceiling of the penthouse.

It was understood that C&E was to have column 14A fabricated and installed prior to Cleveland’s instituting demolition work in that area. All of the Egidis understood that installation of column 14A was prerequisite to Cleveland’s ability to demolish the multistory wing. This task was spelled out in Cleveland’s bid proposal and in the final contract, which stated that “temporary and permanent shoring and bracing required for the support of the remaining structural members is the owner’s responsibility in all areas.”

Although C&E’s contractual responsibility for column 14A was quite clear, this structure was not in place as of April 16, 1981, when Cleveland had completed its strip-out of all floors. In fact, Cleveland was unable to begin demolition of the multistory wing prior to June 1 when it received notice from C&E that this column had been installed. Thus, no matter how early Cleveland could have demolished the ballroom, with or without the wall, the demolition of the multistory wing could not have begun before it did, in the first part of June 1981.

C&E maintains that it did not have column 14A ready before June 1981 because it had anticipated that Cleveland would be working on the ballroom till that time. C&E further asserts that Cleveland unilaterally changed its demolition sequence and was thus itself responsible for any delay due to column 14A not being ready. As noted above, it was C&E’s failure to provide written notice of its decision to retain the front ballroom wall which caused Cleveland to restructure its plan for demolition. The restructuring of this plan further impacted Cleveland’s ability to quickly demolish the multistory wing, as it was no longer able to situate its crane close to the multistory wing as planned because the ballroom was still standing.

As the trial court found, Cleveland did not in any way prevent C&E or the owners from installing column 14A in a timely fashion. The trial court further found that "but for” the delays associated with the failure of C&E and the owners to timely install column 14A, Cleveland would have completed its demolition contract no later than July 11, 1981, before the onset of a strike by the operating engineers which lasted from July 22 to September 15, 1981, and further delayed completion of the project till December 1981.

For the above reasons we find, as did the trial judge, that all project delays were chargeable to C&E.

Ill

C&E further maintains that the trial judge’s conclusion that it was responsible for the six-month delay in completing the demolition contract and its corresponding award of delay damages to Cleveland is not supported by the judge’s other findings of fact. C&E maintains that even if it is charged both with the period of delay attributable to the operating engineers strike, (56 days between July 22, 1981, to September 15, 1981), and the period of delay attributable to its failure to timely install column 14A (53 days between April 17, 1981, and June 8, 1981), such delays amount to only 109 days and not the six months charged to it by the trial judge. On this basis, C&E urges that it should be entitled to at least an apportionment of delay damages.

C&E’s calculations fail to include periods of delay caused by its changed decision regarding the front ballroom wall, and its failure to complete its contractual obligations as regards marking and rerouting of utilities in the basement. Even though these delays were not precisely calculated by the trial judge, they must have contributed to his overall award of delay damages to Cleveland and his denial of C&E’s claims for apportionment of damages. Based on the totality of C&E’s conduct throughout this operation, the judge’s determination that delay damages should not be apportioned is indeed reasonable.

IV

C&E additionally contends that the trial court incorrectly found that it had breached its contractual requirements with regards to marking and rerouting of utility lines. The disputed contract provisions provide:

WORK INCLUDED

“5. Owner is responsible for marking existing telephone service and utility lines to remain; also marking all others in the basement that are to remain.
6. Owner is responsible for protection and maintenance of the existing water, sewer, and all utilities to remain.
7. All cut off and rerouting to be done by others prior to the start of the demolition work.”

In the opinion and order of January 15, 1988, the trial judge interpreted these provisions as follows:

“Prior to strip-out work in the basement, the utilities lines and service lines for sewer and water had to be rerouted. This was necessary because there were existing stores occupied by the tenants. The court finds that all cut off work, rerouting of utilities and marking of the lines were to be done by others than Cleveland prior to start of demolition work. This was not to be a cooperative effort, but the sole responsibility of C&E defendant. There is no question in the Court’s mind that the owner was responsible for protection of and maintenance of the water, sewer, and utility lines that were to remain. No serious concentrated effort was made to reroute and mark the utility and service lines. The Court finds that when C&E attempted in a haphazard manner to mark the lines they shifted their contractual obligation to Cleveland. The Court further finds that C&E determined it would not be economically feasible to them to mark and reroute the lines.”

C&E argues that the above-quoted language of the opinion interpreted contract provisions 5, 6, and 7 as requiring it to reroute all lines. While this interpretation of the judge’s opinion is arguable, a more precise reading is that the trial judge acknowledged not all lines would be rerouted when he stated that the owner was responsible for protection and maintenance of the water, sewer, and utility lines that were to remain. A more accurate interpretation of the judge’s opinion leads to the conclusion that C&E would reroute existing lines where required and mark everything else. This marking and rerouting were necessary in order to allow Cleveland to perform its strip-out work in the basement as quickly as possible without exposure to the hazards presented by live wires.

The judge’s conclusions that C&E’s attempts at marking and rerouting were minimal and perfunctory are supported by the record. Ben Wilson, Cleveland’s general superintendent, testified that when Cleveland began its basement strip-out operations virtually none of the utility lines which were to remain were so marked. When he arrived in the basement, Wilson testified that operating electrical and plumbing lines were “all over the place.” He saw no yellow flags where the lines would have been. Also, no rerouting or cut-off work had been accomplished. Wilson also testified that he complained almost every day to C&E’s superintendent, who assured him the problem would be taken care of, but in fact never was. Finally, on May 8, written notice was provided to C&E officially complaining about the basement situation. (Although Robert Egidi, who testified for C&E, said that he believed all utilities had been marked as of May 8, his testimony was refuted by Ben Wilson.) Even the most generous interpretation of C&E’s obligations as to the utility and plumbing lines would support the trial judge’s conclusion of breach of contract and his subsequent award of additional costs to Cleveland necessitated by the “shifting” of C&E’s obligation and the extra man hours required to work around the unmarked pipes and live wires.

C&E also argues that the trial court erred in admitting parole evidence in the form of precontract negotiations in order to clarify C&E’s obligations as regards basement strip-out. Assuming, arguendo, that such testimony was erroneously admitted, and that this issue was preserved for appeal, any error would be harmless as the trial judge gave the contract language its plain and unambiguous interpretation. Furthermore, as noted above, any construction of C&E’s obligations as regards basement strip-out operations would support a finding of breach.

C&E also contends that because Cleveland did not timely notify it of problems surrounding basement strip-out, it could not correct the situation. This argument was contradicted at trial by Ben Wilson’s testimony that he complained almost daily to C&E about the live wires and unmarked pipes in the basement, although no formal written complaint was made until May 8, about one month after basement strip-out operations had begun. Furthermore, C&E was in breach of its contract obligations from the day basement strip-out began. It cannot therefore shift the blame for its own failure to perform responsibly by claiming lack of notification.

We therefore find that the trial court correctly interpreted contract requirements pertaining to basement strip-out and appropriately assessed additional damages against C&E.

V

Supreme Court Rule 220 (134 Ill. 2d R. 220) requires disclosure of “the identity of an expert” when he was not identified prior to trial in response to a Rule 220 interrogatory request. That rule requires disclosure of an expert who is retained to render an opinion at trial. Failure to do so disqualifies that witness at trial. 134 Ill. 2d R. 220(b)(1).

During the operating engineers strike, while Cleveland was not on the project site, the Egidis ordered their men to sever the front wall from the ballroom, leaving it free standing. When Cleveland learned of this, it had a structural engineer, Larry Reiss, investigate the safety and structural stability of that wall. Reiss’ written report of September 26, 1981, was later forwarded to C&E.

During rebuttal, Reiss was called to testify under subpoena as to his report. Reiss testified that the front wall had been cut loose at the floor and the roof, and that no temporary bracing wall had been erected. He opined that this detachment weakened the wall’s stability, creating a hazardous condition. Reiss felt that vibrations from surrounding demolition would tend to weaken the wall, increasing the likelihood of damage and collapse. C&E noted its standing objection to Reiss’ testimony based upon his failure to be identified before trial pursuant to Supreme Court Rule 220.

Cleveland maintains that C&E’s characterization of Reiss as an expert witness is incorrect, as Reiss was not an expert retained for trial. Rather, he was consulted in 1981 during the course of Cleveland’s demolition work in order to determine the structural integrity of the wall as it then existed after it had been cut loose by C&E. The trial judge found this explanation persuasive, and relying on the appellate court opinion in Diminskis v. Chicago Transit Authority (1987), 155 Ill. App. 3d 585, 508 N.E.2d 215, allowed Reiss’ testimony.

In Diminskis, defendant Chicago Transit Authority contested the propriety of the court’s allowing plaintiff’s treating physician to testify at trial when he had not been disclosed prior to trial as an expert witness. The reviewing court found that pursuant to a Rule 220 request, a plaintiff was not required to disclose the identity of a treating physician as an expert witness. The Diminskis court determined that under Rule 220 only experts retained to render an opinion at trial fall within the definition of a Rule 220 expert. A typical treating physician is not retained by the patient for the purpose of giving trial testimony. On the contrary, the patient’s relationship with the treating physician becomes necessary only because the patient has sought out the physician’s assistance for treatment of .a particular physical or mental illness. A treating physician’s relationship with his patient is therefore not triggered by the filing of a lawsuit.

Since the Diminskis case, the Illinois Supreme Court has held that treating physicians, whose opinions are developed in the course of treating a patient, whether or not litigation is even pending or contemplated, are not expert witnesses within the meaning of Rule 220, and do not have to be disclosed even if their opinions have some value at trial. See Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525.

We conclude that Larry Reiss was similarly situated to a treating physician who was called on to diagnose a particular situation at the time it occurred. This situation was created by the unilateral action of the Egidis in ordering severance of the front wall of the ballroom during the operating engineer’s strike when Cleveland was not on the project site. Even though litigation was unavoidable at the time Reiss rendered his opinion, he was not specifically called in anticipation of litigation. Therefore, he was not an expert whose identity was required to be revealed before trial pursuant to Supreme Court Rule 220.

VI

C&E also argues that the award of deposition costs and witness fees for Wilson and Manzi are not justified by Supreme Court Rule 208(d). (107 Ill. 2d R. 208(d).) While Cleveland does not contest the merits of this appeal, it does contend that C&E’s notice of appeal filed April 26, 1988, was prior to the court’s May 5 award of these costs and that, therefore, the appeal does not include such costs. C&E asserts, and is supported by Illinois case law, that when a party appeals from a judgment, the appellate court has jurisdiction over a subsequent motion relating to a component of the judgment order, even though it is not specified in the notice of appeal. See Oh Boy Grocers v. South East Food & Liquor, Inc. (1979), 79 Ill. App. 3d 252, 398 N.E.2d 269.

C&E further maintains that the trial court improperly taxed to it the costs of depositions necessary to Cleveland’s lawsuit. Here again, case law supports C&E’s argument. In Galowich v. Beech Aircraft Corp. (1982), 92 Ill. 2d 157, 441 N.E.2d 318, the Illinois Supreme Court found that although Rule 208(d) does allow for certain expenses incurred in the taking, transcribing, and filing of depositions to be taxed as costs, only when a deposition was a necessity, such as when a crucial witness died or disappeared at trial, could it properly be taxed as a cost to the losing party. (Galowich, 92 Ill. 2d at 162.) The Galowich court further noted that in Illinois, litigants must bear their own litigation and trial preparation expenses. Although this decision involved the issue of deposition costs in a circumstance of a voluntary dismissal, its principles have been followed when a full scale trial and preparatory depositions have been at issue. See Galowich v. Beech Aircraft Corp. (1991), 209 Ill. App. 3d 128, 568 N.E.2d 46 (which held that depositions used to refresh a recollection or impeach a witness were not “indispensable”). But see In re Marriage of Lefler (1988), 185 Ill. App. 3d 677, 542 N.E.2d 1 (which did award costs for a deposition without distinguishing the Supreme Court’s narrow interpretation of Rule 208(d)).

Relying on the two Galowich decisions, we find that the trial court’s award of deposition costs to Cleveland was improper, as such depositions were not strictly indispensable to the trial of the case, as the witnesses involved had not died or disappeared.

C&E additionally argues that witness fees were also incorrectly assessed as costs. C&E provides no supporting case law for this argument. Furthermore, Galowich does allow for witness fees to be awarded against the losing party while denying deposition costs. In Lorsch v. Gibraltar Mutual Casualty Co. (1970), 127 Ill. App. 2d 350, 262 N.E.2d 313, the appellate court held that witness fees may be taxed even when the witnesses have not testified. Since there seems to be no precedent for a narrow construction of the court’s discretion to award witness fees, we find that the trial court’s determination in this regard is correct.

VII

Cleveland appeals the denial of its motion to amend the judgment of foreclosure to make the additional named defendants (the Egidis) directly responsible for the money judgment without resort to a foreclosure sale. Cleveland grounds this argument on two separate theories. First, Cleveland argues that it is entitled to direct relief against these additional defendants based on its breach of contract claim. Cleveland asserts that because of the identity of interest between C&E and the Egidis, the contract it entered into with C&E was in actuality a contract with the Egidis, and that, therefore, actual privity exists between it and the Egidis, thus providing the basis for breach of contract relief. An alternative form of this argument presents C&E as an agent of the Egidis and establishes direct liability through an agency theory.

In support of its breach of contract, unity of interest theory, Cleveland cites the Illinois Supreme Court decision of Seymour v. Woodstock & Sycamore Traction Co. (1917), 281 Ill. 84, 117 N.E. 729. The Seymour court did determine that a contract with a construction company was in actuality a contract with a defendant railroad, as the ownership of the construction company and the railroad was identical, officers, stockholders, and directors were the same, and in fact, the construction company had been organized for the sole purpose of constructing the railroad and had no other business. While these unity of interest arguments might be theoretically applicable to the case at bar, they were not developed in the trial court. The evidence adduced at trial established only that there was a written contract between Cleveland and C&E, Inc., a viable corporate entity. There was no evidence which would allow the trial judge to pierce the corporate veil and thus find privity of contract between the Egidis and Cleveland. Furthermore, there was no evidence which would support a finding that C&E was an agent of and controlled by the Egidis. Even though the trial judge did find a unity of interest between the Egidis and C&E, he specifically stated in the post-trial hearing that such findings pertained only to plaintiff’s claim under the Illinois Mechanics’ Liens Act and were not intended to be a ruling on corporate matters or whether C&E was a viable corporate entity, separate and distinct from its owners. Because these issues regarding identity of corporate interests had not been addressed during trial, the trial judge declined to find the Egidis liable to plaintiff on a breach of contract theory.

As an alternative to its breach of contract, unity of interest theory, Cleveland argues that the Egidis should be directly responsible for the money judgment awarded by the trial court based on section 28 of the Illinois Mechanics’ Liens Act (Ill. Rev. Stat. 1981, ch. 82, par. 28), which does allow a subcontractor to secure a money judgment against the owner of a property without resort to foreclosure. Again, this cause of action may have held theoretical entitlement for Cleveland, but it was not pled and proved in the trial court.

In a post-trial hearing, Cleveland argued that a liberal construction of its pleadings would allow the court to grant this additional form of relief. To buttress this argument, Cleveland relied on the decision of Bethlehem Steel Corp. v. Tishman-Adams, Inc. (1977), 45 Ill. App. 3d 1003, 360 N.E .2d 475. In Bethlehem, a plaintiff subcontractor had requested a lien on the property as well as “other appropriate relief.” The trial judge in that case liberally construed the pleadings to allow for a direct money judgment against the owners of the property. In the instant action, Cleveland’s prayer for relief requested the various remedies available under the Act. At paragraph (b) of count I of its amended complaint, Cleveland requested that the court adjudge the defendants jointly and severally liable to Cleveland in the amount of $301,119.86 plus interest. Cleveland argues that based on this language and the precedent established by Bethlehem, the trial judge incorrectly denied its motion to amend the judgment of foreclosure to include the Egidis.

The language of Cleveland’s complaint and the precedent established by Bethlehem present a strong argument in favor of adding the Egidis to the initial judgment of foreclosure. However, as the trial judge noted in denying Cleveland’s motion, relief under section 28 requires the plaintiff to submit additional evidence including proof of its pro rata share of available monies plus proof of improper payout procedures. This issue of additional required proofs was not addressed by the Bethlehem court. A determination which allowed Cleveland to include the Egidis as additional named defendants would ignore this requirement set out by section 28 of the Illinois Mechanics’ Liens Act.

For the above reasons, we uphold the trial court’s denial of Cleveland’s motion to amend the judgment of foreclosure and sale to include additional named defendants.

We do not address the priority of liens in this case, as this issue was not before the court.

Accordingly, the judgment of the circuit court of Cook County is affirmed except for its award of deposition costs, which is reversed.

Affirmed in part, reversed in part.

LORENZ, P.J., and MURRAY, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    MARILYN WONG et al., Plaintiffs-Appellants, v. DARLENE STEVENS, Defendant-Appellee.
    First District (5th Division)
    No. 1 — 89—1661
    Opinion filed June 28,1991.

      Martin Tiersky, of Skokie, for appellants.
    Michael S. Froman, of Skokie, for appellee.
   JUSTICE McNULTY

delivered the opinion of the court:

On November 12, 1984, Stevens, Wong and Reilly entered into an agreement in which Stevens agreed to execute a previously assigned option to purchase a single-family residence at 1027 North Gibbons Avenue, Arlington Heights, Illinois. In consideration for the assignment of this option, Stevens granted Wong and Reilly a two-year lease with rental payments equal to her mortgage, insurance, and tax payments, as well as an option to purchase the premises from her on or before November 12, 1986. In the event that Wong and Reilly did not exercise the option to purchase on or before November 12, 1986, the agreement provided that Stevens would have the right to sell the premises to any party, would realize her costs plus a $5,000 bonus from the net proceeds, and pay the remaining net proceeds to Wong and Reilly. Stevens’ right to sell the premises to any party would accelerate if Wong and Reilly fell three or more consecutive months in arrears on their mortgage payments.

Due to a dispute, Wong and Reilly stopped making their monthly payments, and on March 5, 1987, Stevens entered into a contract to sell the premises to another party. In the litigation which ensued, Stevens first filed a complaint in forcible entry and detainer and later a motion for eviction and other relief. Wong and Reilly filed a complaint for an equitable mortgage which was dismissed without prejudice by the trial court. They then filed an amended complaint alleging a resulting trust which did not reassert an action for equitable mortgage. The chancery court granted the motion for eviction, entered summary judgment for back rent, and dismissed Wong and Reilly’s amended complaint alleging a resulting trust for failure to state a cause of action. Wong and Reilly appeal the judgment for back rent and the dismissal of their claim. They do not appeal the eviction order.

Appellants first contend that the trial court erred in entering summary judgment against them for rent, as no pleading was filed requesting rent. While Illinois statutes do provide that separate claims shall be stated in separate counts of a complaint (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 603), and that every complaint shall contain a prayer for relief (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 604), the purpose of these provisions is to give notice to the court and to the parties of the claims being presented and the relief being sought. Complaints are to be liberally construed with an eye toward doing justice between the parties. In the instant action, Stevens filed a complaint on March 18, 1987, for forcible entry and detainer. This complaint contained traditional boiler plate language requesting possession only. In September 1987, after the law and chancery cases were consolidated, Stevens filed a motion for eviction and other relief. In May 1987, she filed a petition for emergency and other relief, asking that an appraiser be given full access to the premises and that Wong and Reilly pay $11,990 in back rent. This motion was granted as to the appraiser, but denied without prejudice as to the other relief. In June 1987, Stevens again filed a motion for relief of $15,587 in back rent which was then due and owing. This motion was denied without prejudice and the court ordered the depositions of Wong and Reilly to be taken as to the rent. Stevens again filed a motion for eviction and other relief on July 14, 1987, which the chancery court granted, awarding back rent in the amount of $17,985.

The numerous motions filed by Stevens were sufficient to put Wong and Reilly on notice that rent was being sought. Furthermore, Wong and Reilly admitted in their depositions that they had stopped paying rent and had not made any payments to Stevens under the agreement in 1987. Equity dictates that Stevens’ motions be liberally construed as amended complaints, properly requesting the remedy of rent. To do otherwise would be to elevate form over substance and deny justice to the defendant.

Wong and Reilly further allege that an entry of an order for rent is improper as the agreement between the parties allows Stevens reimbursement for expenses, plus a $5,000 bonus. Although the contract between the parties does so provide, this remedy is not exclusive, and does not operate to foreclose the independent contractual obligation of Wong and Reilly to pay rent during the time they occupied the premises. It would be an outrage, as stated by the trial judge, to allow the plaintiffs to live in the premises and require Stevens to pay their rent.

Additionally, Wong and Reilly argue that the entry of summary judgment for Stevens was improper both because defendant’s motion was not supported by affidavits, as required by statute, and also because there were material facts in dispute. While Stevens’ motion was not strictly a summary judgment motion, it very closely approximated one, as it had attached the sworn deposition testimony of Wong and Reilly, admitting that they had withheld rent over a long period of time. Moreover, there was no response by Wong and Reilly to this motion. Since there was no dispute about rent not being paid, and no dispute about the agreement requiring the payment of rent, and because the motion was supported by sworn testimony, the trial judge correctly determined that there was no genuine issue of material fact as to the rent and correctly entered an order for summary judgment.

The amount set in the order for summary judgment ($17,895) was determined from Stevens’ pleadings, which represented the only figures available. However, a judgment in this amount is supported by combining Wong’s deposition testimony that the last rental payment was for May 1986, with the fact that she and Reilly had not vacated the premises until October 1987, and the agreement called for rental payments in the amount of $1,199 per month.

Wong and Reilly also maintain that the dismissal of their second amended complaint for failure to state a cause of action for a resulting trust was improper. Illinois case law supports the determination of a resulting trust where property is purchased with the funds of one person and title is taken in the name of another. See Wright v. Wright (1954), 2 Ill. 2d 246, 118 N.E.2d 280, in which an elderly plaintiff wished to buy a rooming house, and being unable to finance her purchase, had her son obtain a Veterans Administration loan. The son agreed with the express understanding that while title would be taken in his name, his mother would make payments on the house. The son was not interested in buying the house and was the purchaser in name only. Based on these facts, the Wright court found the existence of a resulting trust in favor of the mother. See also In re the Estate of Wilson (1980), 81 Ill. 2d 349, 410 N.E.2d 23, Scanlon v. Scanlon (1955), 6 Ill. 2d 224, 127 N.E.2d 435, and Johnson v. Johnson (1953), 1 Ill. 2d 319, 115 N.E.2d 617, all of which determine the existence of a resulting trust only when there is a clear indication at the time of the transaction that the purchaser of the property has no beneficial interest in such property, and is taking title in name only.

The facts in the case at hand do not establish that Stevens purchased the property at issue with Wong and Reilly’s money and held title solely for their benefit. Rather, Stevens purchased the property with her own funds (though she was to be repaid by Wong and Reilly) and executed a lease with option to purchase with plaintiffs. If plaintiffs chose not to exercise their option, Stevens was free to sell the property to another party, deduct her expenses plus a bonus and pay the difference to Wong and Reilly. Even a liberal reading of these facts cannot construe a resulting trust from this lease with option to purchase.

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

Affirmed.

MURRAY and GORDON, JJ., concur.


text:
    ROBIN YOUNG et al., Plaintiffs-Appellees, v. JOHN HUMMEL, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 89—3472
    Opinion filed June 28,1991.

      Beermann, Swerdlove, Woloshin & Barezky and Parrillo, Weiss & O’Halloran, both of Chicago (Alvin R. Becker, Jon R. Parrillo, Joel M. Horwich, and Timothy M. Kelly, of counsel), for appellant.
    Robert A. Rosin & Associates, Ltd., of Chicago (Robert A. Rosin, of counsel), for appellees.
   JUSTICE McNULTY

delivered the opinion of the court:

This is an appeal from judgment entered in the circuit court of Cook County in favor of plaintiffs Robin Young and John Young against defendant John Hummel. Plaintiffs filed a two-count complaint against defendant for injuries and property damage allegedly resulting from a collision between vehicles driven by Hummel and Robin Young. The jury awarded plaintiffs a total of $77,411. Defendant is appealing on the basis that the jury was improperly instructed on the issue of punitive damages and awarded excessive compensatory damages.

The relevant facts are as follows. On April 19, 1979, John Hummel collided into the rear of plaintiffs’ vehicle as both vehicles traveled southbound on York Road in Elmhurst. Robin Young was driving and John Young was a passenger in her car. After impact, the defendant’s car continued to push the plaintiffs’ car for more than a block. Once the vehicles were separated, defendant’s automobile struck the left rear comer of Robin Young’s vehicle a second time. After the second impact, defendant fled the scene of the collision. An officer who responded to the collision found that the license plate from the front of defendant’s vehicle had been embedded into the rear of Robin Young’s car. The officer traced the license plate to John Hummel and discovered both the vehicle and Hummel at his home.

Following the collision, Robin Young was taken to Elmhurst Hospital and treated for a laceration above her eye and given a cervical collar. At the time of the accident, Robin was employed as a waitress at Jo-Jo’s Restaurant earning $400 a week. She remained off work for two weeks after the accident. When she returned to work, she worked part time as a hostess rather than as a waitress since her injuries prevented her from carrying food trays. Even 10 years later, at the time of trial, Robin testified that she was still unable to either carry food trays or work full time.

Dr. Engelhart, a licensed chiropractor, testified that he treated Robin Young for musculoskeletal disorders which she suffered as a result of the collision. This treatment involved chiropractic adjustments of her spine which consisted of straightening the spine. Robin had seen Dr. Engelhart in excess of 150 times over the 10-year period between the accident and the trial. Throughout her treatment with Dr. Engelhart, Robin complained of headaches, pain in the shoulders, neck, arms, back and hips.

Robin testified that at the time of trial, she was still experiencing soreness, stiffness and headaches. Furthermore, she was still unable to sit comfortably for long periods of time, or lift heavy objects. She continues to see Dr. Engelhart in order to receive some relief from these problems.

The jury returned a verdict in favor of both plaintiffs and awarded them a total of $77,411. Plaintiff Robin Young was awarded a total of $62,911 for compensatory damages and $12,000 for punitive damages. Plaintiff John Young was awarded a total of $500 for compensatory damages and $2,000 for punitive damages. Final judgment was entered upon the verdict.

Defendant initially maintains that the trial court improperly instructed the jury on the issue of punitive damages when such damages were not prayed for in the complaint. Defendant contends that he was unaware that plaintiffs were even seeking punitive damages until they were mentioned by plaintiff’s counsel during the jury instruction conference.

Since defense counsel was retained to defend Hummel by his liability insurer, and under Illinois law there can be no coverage for punitive damages under a liability policy like the one issued to Hummel (Beaver v. Country Mutual Insurance Co. (1981), 95 Ill. App. 3d 1122, 420 N.E.2d 1058), defendant contends that he was denied a fair trial by virtue of the fact that there was a conflict of interest over the issue of punitive damages. Defendant contends that had defense counsel been aware of the potential imposition of punitive damages, he would have not only conducted the trial much differently, but he would also have advised Hummel to consider retaining independent counsel. In addition, defense counsel would have made a specific disclosure to Hummel that an award of punitive damages would not be covered under his policy of liability insurance.

A defendant is entitled to be apprised of the precise charge brought against him, the nature and extent of the relief sought, and the property which may be affected. He must also be given an opportunity to defend the charge. (Klehm v. Klehm (1963), 41 Ill. App. 2d 423, 191 N.E.2d 69.) The plaintiffs’ complaint contains two counts. It is undisputed that count I sought compensatory damages for defendant’s alleged negligence. Count II sought damages for defendant’s alleged willful and wanton misconduct, but it is unclear whether the damages sought were compensatory or punitive.

Although the complaint did not specifically request punitive damages, the trial court allowed plaintiffs to seek such damages, apparently based on the belief that the presence of a willful and wanton count in a complaint automatically results in a claim for punitive damages. This position is, however, inconsistent with Illinois law. In Kubajak v. VerBrugge (1965), 59 Ill. App. 2d 344, 207 N.E.2d 344, the court determined that the giving of a punitive damages instruction where plaintiff alleged willful and wanton misconduct, but did not pray for punitive damages, did not warrant a reversal since the amount of the verdict indicated that punitive damages had not in fact been awarded. The court did, nonetheless, state a preference that the defendant not be surprised by a claim for punitive damages. Subsequently, the decision in People ex rel. Scott v. Police Hall of Fame, Inc. (1978), 60 Ill. App. 3d 331, 376 N.E.2d 665, relied on Kubajak to reverse an award of punitive damages where the complaint charged the defendants with egregious conduct but failed to include a specific request for punitive damages in its prayer for relief.

More recently, in Yates v. Brock (1989), 191 Ill. App. 3d 358, 547 N.E.2d 1031, the court held that since plaintiffs had not prayed for punitive damages in their complaint, the issue of punitive damages could not be raised at trial. The complaint in Yates alleged that defendant was guilty of willful and wanton misconduct by driving while intoxicated, but did not contain a specific prayer for punitive damages. The question of punitive damages first arose during voir dire. Defense counsel objected on the basis of surprise and because the possible award of punitive damages placed him in conflict with his client since he was retained by the client’s insurance company. The court concluded that where the question of punitive damages is first raised the morning of trial, the defendant is likely unprepared to address the issues raised and, therefore, under such circumstances the question of punitive damages could not then be raised at trial. Yates, 191 Ill. App. 3d at 363.

At first glance, defendant’s claim of surprise in the instant case would appear to be even more compelling than that presented in Yates in light of the fact that the question of punitive damages here was not raised at the start of the trial but rather at the instruction conference at the end of trial. As defendant points out, a review of the record indicates that defendant may have had some knowledge that punitive damages were at issue in the willful and wanton claim. At the commencement of the trial, plaintiff presented a motion in limine to bar reference to the pecuniary position of either plaintiffs or the defendant. Defense counsel objected to the motion stating that “There is a willful and wanton Count and I think that is relevant at least to the defendant.” Based on this comment, we could reasonably conclude that defense counsel was aware that defendant’s pecuniary status was relevant based on the fact that plaintiffs were seeking punitive damages. On the other hand, we would be equally justified in concluding that since plaintiffs sought to exclude evidence of the pecuniary position of either the plaintiffs or the defendant, defendant was led to believe that plaintiffs were not seeking punitive damages.

Accordingly, while we can not definitively ascertain whether defendant was indeed surprised by the request for punitive damages, we do know that the plaintiffs’ complaint did not specifically request punitive damages. As a result of their penal nature, punitive damages are not favored in the law, and, accordingly, courts must take caution to see that punitive damages are not improperly or unwisely awarded. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.) Adherence to this standard of caution leads to the conclusion that because we cannot unequivocally determine whether the defendant had actual knowledge that plaintiffs were seeking punitive damages, the portion of the verdict awarding punitive damages against defendant should be reversed.

Defendant next contends that the jury awarded excessive compensatory damages to Robin Young. Defendant maintains that the trial court improperly instructed the jury that it could consider the permanency or future pain of Robin’s injury. Although defense counsel objected to the instruction on the basis that there was no medical testimony that Robin Young’s injury was permanent so as to cause any future pain and suffering, the trial court gave the instruction based on Robin’s testimony as to her own condition. Defendant maintains that it was reversible error for the trial court to instruct the jury on future pain and suffering when there was absolutely no medical evidence introduced to indicate that Robin’s condition was permanent or that she would experience pain in the future.

“Some evidence" as to plaintiff’s future pain and suffering warrants the giving of a jury instruction. (Onion v. Chicago & Illinois Midland Ry. Co. (1989), 191 Ill. App. 3d 318, 547 N.E.2d 721.) As the court in Onion noted, Illinois case law provides little guidance as to the degree of proof that constitutes “some evidence” required for a pain and suffering instruction. In Harvey v. Norfolk & Western Ry. Co. (1979), 73 Ill. App. 3d 74, 390 N.E.2d 1384, and McNealy v. Illinois Central R.R. Co. (1963), 43 Ill. App. 2d 460, 193 N.E.2d 879, expert testimony as to the permanence of pain and suffering was held to meet the standard. In Onion, the court stated that “some evidence” from either an expert or a layperson warrants the giving of a future pain and suffering instruction to the jury. In reaching this conclusion, the court noted:

“The only expert testimony which clearly addresses the permanence of plaintiff’s injury is Dr. Meyer’s testimony that reinjury of plaintiff’s back and neck injury was possible. Nonexpert testimony concerning plaintiff’s future pain and suffering was elicited from plaintiff himself. Illinois law does not require that the evidence supporting a jury instruction on future pain and suffering be only in the form of expert testimony, and we see no reason for changing this rule of law. Jurors are capable of properly evaluating a plaintiff’s testimony as to pain and suffering, and they will no doubt take into account a plaintiff’s interest in the outcome of the lawsuit as well as plaintiff’s lack of technical expertise on what his or her future physical condition, and related pain, may be.” (Onion, 191 Ill. App. 3d at 322.)

Thus, while the Onion court noted that layperson testimony alone warrants the giving of a future pain and suffering instruction to the jury, it concluded that the testimony of the plaintiff, combined with the testimony of Dr. Meyer, met the standard of presenting “some evidence” of plaintiff’s future pain and suffering. Onion, 191 Ill. App. 3d at 322.

Accordingly, while an instruction on future pain and suffering may generally be improper where only layperson testimony has been presented to the jury, such is not the case here. In the case at bar, expert testimony as to the permanency of Robin’s injury would have been presented to the jury had the trial court not erroneously sustained defendant’s objections to this testimony. A chiropractor is indeed competent in a personal injury action to express his opinion as to the permanence and future pain and suffering in connection with the injury, provided that the matter relates to the chiropractic profession and practice. Furthermore, anyone who is shown to have special knowledge and skill in diagnosing and treating human ailments is qualified to testify as an expert if his learning and training show that he is qualified to give an opinion upon the particular question in issue. It is not the province of the court to pass upon the merits now in use and practice in the treatment and cure of diseases and it is the duty of the court to admit a chiropractor’s testimony as an expert. Voight v. Industrial Comm’n (1921), 297 Ill. 109, 130 N.E. 470; see Morehead v. Peyton (1979), 73 Ill. App. 3d 809, 392 N.E.2d 433 (where several chiropractic experts testified that plaintiff would require future medical services, trial court erred in refusing plaintiff’s instruction which related to future medical expenses).

We therefore conclude that, based on the particular facts of this case, where plaintiff attempted to present expert testimony as to the permanency of her injury, but was erroneously prevented from doing so, plaintiff’s lay testimony as well as the testimony of her expert, which we can safely assume would have corroborated her testimony, presented “some evidence” sufficient to warrant giving a future pain and suffering instruction to the jury.

Defendant next contends that the verdict for compensatory damages awarding plaintiff Robin Young damages for past pain and suffering is against the manifest weight of the evidence presented at trial and is merely the result of passion or prejudice.

It is well settled that the amount of a verdict is largely within the discretion of the jury and should not be disturbed on review unless it is obviously the result of passion or prejudice. (Lau v. West Towns Bus Co. (1959), 16 Ill. 2d 442, 158 N.E.2d 63.) Whether a damage award falls within the necessarily flexible limits of fair and reasonable compensation or is so large as to shock the judicial conscience must be determined from consideration of the permanency and extent of the injury, possible future deterioration, medical expenses, and restrictions on daily activity because of the injury. Mondelli v. Checker Taxi Co. (1990), 197 Ill. App. 3d 258, 554 N.E.2d 266.

In light of Robin’s continuing pain and medical expenses, and the effect her injuries have had and continue to have on both her professional and personal life, we cannot say that the compensatory damage award to her “shocks the judicial conscience.” At the time of the accident, Robin was in excellent health. Following the collision, she suffered from neck and back pain, soreness, stiffness and headaches. She received over 150 treatments for these injuries from Dr. Engelhart, and she continues to see Dr. Engelhart in order to increase her mobility. Although her condition has improved, plaintiff claimed that even at the time of trial she was still experiencing pain and was still unable to lift heavy objects, carry her child, or sit comfortably for long periods of time.

Robin also testified that her professional life has been affected by her injuries. Prior to the collision, she was employed full time as a waitress, earning $400 a week. Although Robin did return to her employment at Jo-Jo’s restaurant, she returned as a hostess rather than as a waitress since her injuries prevented her from carrying food trays. At the time of trial, Robin was working two days a week as a cocktail waitress, earning about $75 per night. She testified that although additional hours of employment were available to her, her injury prevented her from working on a full-time basis.

Furthermore, the accident affected Robin’s personal life. Prior to the collision, Robin engaged in gymnastics and bike riding. Due to her back injury, she is no longer able to engage in these activities.

Defendant next contends that the trial court erred when it precluded defense counsel from addressing the issue of proximate cause in his closing statement. During the instruction conference, plaintiffs’ counsel tendered and the trial court agreed to submit to the jury an instruction that each plaintiff has the burden of proving that the willful and wanton conduct of the defendant was a proximate cause of the injury to the plaintiffs. Defendant contends that when defense counsel attempted to address this precise issue in his closing argument, plaintiffs’ counsel objected and the court sustained the objection. A review of the record indicates that the objection was properly sustained in light of the fact that defendant was misstating the case. What defendant stated in closing argument was that “since its really the second impact that they are claiming is the willful and wanton part of their case, you have to consider [whether] the second impact was the cause of the injury.” Essentially, defendant was asserting that count II of the complaint, alleging willful and wanton misconduct, was based solely on the fact that after the initial impact between the two vehicles, Hummel hit plaintiffs’ car a second time while attempting to leave the scene of the accident. At issue was not whether defendant’s willful and wanton misconduct in causing the second collision was the sole proximate cause of the plaintiffs’ injury, but whether defendant’s course of conduct in twice colliding with plaintiffs’ vehicle and then leaving the scene was a proximate cause of the occurrence which gave rise to plaintiffs’ injury. Thus, the trial court properly sustained the objection since aspects of defendant’s conduct other than the second impact gave rise to the plaintiffs’ injury.

Lastly, it should be noted that plaintiffs, although defending the judgment on appeal, also allege error in the trial court. The plaintiffs are concerned with the trial courts’ decision to bar evidence of defendant’s intoxication at the time of the accident. Plaintiffs request that in the event that this case is remanded, the court issue an order finding that the evidence of defendant’s intoxication was improperly barred.

Plaintiffs are not, however, the proper party to raise the issue of an error in the trial court. A party cannot complain of error which does not prejudice it, and a party who obtains by judgment all that has been requested cannot appeal from that judgment. (In re East Lake Fork Special Drainage District (1985), 137 Ill. App. 3d 473, 484 N.E.2d 507.) Furthermore, a party cannot avail himself of those parts of a judgment which are beneficial to him and afterward appeal seeking to reverse the parts of the judgment unfavorable to him. (Schroeder v. Meier-Templeton Associates, Inc. (1984), 130 Ill. App. 3d 554, 474 N.E.2d 744.) Accordingly, we need not address whether the trial court erred in barring evidence of defendant’s intoxication since the the only issues properly before the court are those raised by defendant, since he is the only party with a right to appeal in this case.

Accordingly, for the reasons stated above, we reverse the award of punitive damages and affirm the award of compensatory damages.

Affirmed in part and reversed in part.

LORENZ, P.J., and GORDON, J., concur.


author: JUSTICE MURRAY

text:
    NEAL CAAUWE, Plaintiff-Appellant, v. POLICE PENSION BOARD OF THE VILLAGE OF MIDLOTHIAN, Defendant-Appellee.
    First District (5th Division)
    No. 1 — 90—2720
    Opinion fled June 28,1991.

      Stanley H. Jakala, of Berwyn, for appellant.
    John B. Murphey, of Rosenthall, Murphey, Coblentz & Janega, of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Neal Caauwe (Caauwe), plaintiff, appeals a trial court’s affirmance of a decision of the Police Pension Board of the Village of Midlothian (Pension Board) denying him a line of duty disability pension. The Pension Board denied Caauwe’s application for a 65% policeman’s disability pension under the Illinois Pension Code (Ill. Rev. Stat. 1987, ch. lOSVz, par. 3 — 101 et seq.). Caauwe has filed this timely appeal.

This is the second time this case has been before this court. The facts have been adequately set forth in the first opinion. (Caauwe v. Police Pension Board (1989), 184 Ill. App. 3d 482, 540 N.E.2d 453.) Briefly, according to Caauwe’s testimony, he first injured his back on June 1, 1977, during an altercation with a prisoner, when the prisoner tossed him against the wall of a jail cell. Caauwe, a veteran policeman with the Midlothian police department, applied for a policeman’s disability pension. The Pension Board denied him a pension, and he filed an administrative review action to review the Pension Board’s denial. (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.) The trial court affirmed the Pension Board’s decision. This court reversed and remanded to the Pension Board on the ground that the Pension Board failed to follow a provision of the Illinois Pension Code. (Ill. Rev. Stat. 1985, ch. 108x/2, par. 3 — 115.) The pertinent provision of the Illinois Pension Code reads:

“A disability pension shall not be paid unless there is filed with the board certificates of the police officer’s disability, subscribed and sworn to by *** 3 practicing physicians selected by the board. The board may require other evidence of disability.” Ill. Rev. Stat. 1985, ch. 108½, par. 3 — 115.

In the first appeal in this matter this court reversed and remanded the cause “to the Pension Board for it to receive certifications of the three doctors of petitioner’s disability or lack thereof.” Caauwe, 184 Ill. App. 3d at 486.

Pursuant to the directive of this court, the Pension Board sent out a letter and his original medical report to each of the examining doctors: Dr. Albert V. Bosch, Dr. James T. Bianchin and Dr. Anthony L. Brown. The Pension Board received a certification from Dr. Bosch certifying that Caauwe was disabled. A certification was received from Dr. Bianchin certifying that as of the date of his examination he “cannot determine physically disabled.” A certification was not received from Dr. Brown and, instead, a letter was received from Dr. Brown. In its order the Pension Board states that “[n]umerous attempts were made to contact Dr. Brown to explain exactly what was required regarding the Certification, but one was never received. Visits were made to the hospital to attempt to meet with Dr. Brown with no success.”

The January 10, 1990, finding and decision of the Board articulated the following findings:

“[B]ased upon the mandate of the Court to obtain Certifications, and based upon the State Statute referred to, which requires that no disability pension is to be paid unless the Board has 3 Certifications of Disability, and the Board does not have 3 Certifications so stating, and based upon the fact that one Certification indicated that the doctor could not make a determination of disability and another Certification was not received, based upon the totality of the evidence in the original hearing, and based upon all of the above, the Board reaffirms its decision and denies Neal Caauwe’s application for a Disability Pension. In the alternative, even assuming 3 Certifications of Disability were so provided, the Board based upon the totality of the evidence in the original record, determines that Detective Neal Caauwe has failed to present sufficient credible evidence to support his Application for Disability Pension, and the Board hereby reaffirms its decision to deny the Application for Disability Pension.”

Two of the physicians responded with the certification; one that Caauwe was disabled, the other that he was unable to determine whether Caauwe was disabled. The third physician corresponded with the Pension Board to the effect that it was impossible to provide a certification in part because of “the lengthy period which had elapsed subsequent to the time of evaluation.”

The Pension Board concluded, Caauwe “failed to present sufficient credible evidence to support his application for disability pension and the Pension Board hereby reaffirms its decision to deny the application for disability pension.” Caauwe again sought a review of the Pension Board’s action. Again the trial court affirmed the action of the Pension Board. Once again Caauwe appealed to this court in the matter.

In this appeal Caauwe raises the single issue that the failure of the Pension Board to obtain three certifications is a violation of Caauwe’s due process right under the fifth and fourteenth amendments of the United States Constitution.

Caauwe argues since this court stated in the first appeal that the language of the pension statute mandatorily requires the Pension Board to secure three sworn certificates of a pensioner’s disability or lack thereof and since the Pension Board failed to secure three sworn certifications from two of the doctors, its failure amounted to a loss of a benefit without cause to the plaintiff, thereby violating the plaintiff’s property right to have such sworn certifications attached to his application for disability pension, resulting in a violation of his due process rights for having such sworn certificates available.

Caauwe’s failure to raise the constitutional question before the Pension Board in the original proceedings constitutes a waiver of the issue on appeal. (Smith v. Department of Professional Regulation (1990), 202 Ill. App. 3d 279, 559 N.E.2d 884.) “The rule of waiver applies equally to issues involving constitutional due process rights.” Smith v. Department of Professional Regulation (1990), 202 Ill. App. 3d 279, 287, 559 N.E.2d 884; see also Commonwealth Edison Co. v. Department of Local Government Affairs (1984), 126 Ill. App. 3d 277, 466 N.E.2d 1351.

Caauwe argues that there was no waiver of the due process right argument, since the appellate court, in this instance, in its original opinion, Caauwe v. Police Pension Board (1989), 184 Ill. App. 3d 482, 540 N.E.2d 453, was a decision of first impression when it interpreted the Illinois pension statute as mandatorily requiring a pension board to produce three doctors’ certifications to prove disability or lack thereof. Caauwe maintains that as a consequence, he could not have waived the mandatory requirement of the three certifications before the Pension Board hearing, since there was no court opinion that held that these certifications were mandatorily required. Caauwe’s reply brief states: “As a result, when this matter was remanded to the pension board, and the board did not comply with the requirement for the three certifications as required mandatorily by statute, which the plaintiff-appellant considers substantive due process property right, then this plaintiff-appellant, upon receipt of the board’s decision for remand, raised the issue in the current proceedings before this court; namely, the issue of the due process violation ***.” However, not only did Caauwe fail to raise the issue in the original proceeding before the Pension Board, he failed to raise the issue on remand to the Pension Board, after receiving the mandate from this court.

This court recently stated in Smith:

“plaintiff’s argument that he preserved the error for appeal by raising it in the circuit court is meritless. The waiver rule specifically requires first raising an issue before the administrative tribunal rendering a decision from which an appeal is taken to the courts. (Leffler, 14 Ill. 2d 225, 151 N.E.2d 342; A.R. Barnes, 173 Ill. App. 3d 826, 527 N.E.2d 1048.) Given that, in administrative review cases, including those involving defendant [Department of Professional Regulation], the circuit courts act as the first-tier courts of review (Ill. Rev. Stat. 1989, ch. 110, pars. 3 — 104, 3 — 110; Ill. Rev. Stat. 1983, ch. 111, par. 4447), the reason and logic behind that requirement are clear.” Smith v. Department of Professional Regulation (1990), 202 Ill. App. 3d 279, 287, 559 N.E.2d 884.

Even if we could hold that it was plain error not to consider the constitutional issue, we would have to affirm the trial judge. Caauwe is contending that he has an absolute right to be examined by three physicians selected by the Pension Board and he has the additional absolute right that those three reports be certified to by the physicians whether confirming or denying the existence of a disability. As a general proposition of law, pensions or annuity benefits of public employees are not vested property rights entitled to the protection of due process as guaranteed by the United States Constitution. (Jordon v. Metropolitan Sanitary District (1958), 15 Ill. 2d 369, 381-82, 155 N.E.2d 297.) There are exceptions of course, i.e., in the case where the pension annuity benefits become vested.

“It is fundamental that the constitutional guarantees of procedural due process only become operative where there is an actual or threatened impairment of deprivation of ‘life, liberty or property.’ ” (Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 293-94, 395 N.E.2d 1376; U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2.) Procedural due process safeguards are triggered only when the property rights have vested. (Board of Regents v. Roth (1972), 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701.) The United States Supreme Court concluded in Roth, “[t]o have a property interest in a benefit, a person clearly must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” (Roth, 408 U.S. at 577, 33 L. Ed. 2d at 561, 92 S. Ct. at 2709.) In other words “[t]he Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits.” Roth, 408 U.S. at 576, 33 L. Ed. 2d at 560, 92 S. Ct. at 2708.

At best that expectation in this case is predicted upon the filing with the Pension Board certificates of the police officers disability “by *** 3 practicing physicians selected by the board.” (Ill. Rev. Stat. 1985, ch. ÍOS1^, par. 3 — 115.) In the first appeal in this case this court stated, “[t]he Pension Board in the case at bar, did not require the ‘3 physicians selected by the board’ to furnish certificates of the applicant’s disability and the three physicians did not submit such certificates.” (Caauwe, 184 Ill. App. 3d at 486, 540 N.E.2d at 456.) The record indicates that on remand the Pension Board required the physicians to provide certifications of Caauwe’s disability or lack thereof. The Pension Board made every attempt to follow the mandate of the court.

Caauwe contends that, since he is without fault in not being able to establish his disability without the Pension Board’s total involvement as mandatorily required by the statute, he should be awarded his 65% disability pension based upon one sworn certificate establishing Caauwe’s disability; or, alternatively, a 50% pension should be awarded if the other evidence does not substantiate a 65% disability.

We note the Pension Board’s decision included the language that “[i]n the alternative, even assuming 3 Certifications of Disability were so provided, the Pension Board based upon the totality of the evidence in the original record, determines that Detective Neal Caauwe has failed to present sufficient credible evidence to support his Application for Disability Pension.”

Since we find that there is no constitutional question involved, we examine the record under pertinent provisions of the Illinois Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.).

In reviewing a pension board decision a reviewing court does not reweigh the evidence, but rather determines whether the board’s decision is against the manifest weight of the evidence. (English v. Village of Northfield (1988), 172 Ill. App. 3d 344, 526 N.E.2d 588.) After a careful review of the record we cannot conclude that the decision of the Pension Board is against the manifest weight of the evidence. Evidence presented at the first hearing indicated that no original incident report of the June 1, 1977, arrest made mention of an injury to Caauwe. Caauwe testified that he did not file a report on his injury because he didn’t think it was that serious, but that he did, however, file a detailed written report in 1978 when a piece of paper blew up from his clipboard and nicked his eye. Caauwe acknowledged that in 1976 he had back problems. Caauwe admitted telling the hospital when he was admitted on October 24, 1977, that he hurt his back while mowing his grass on June 15, 1977, two weeks after the arrest incident and four days before he initially went to the hospital. Betty Caauwe, plaintiff’s wife, testified that she and her husband owned a “wholesale variety” store and her husband sometimes did some lifting of merchandise in and out of the store. The administrative aide to the chief of the police department testified that he was involved in the June 1 incident and testified that Caauwe never gave him any indication that he had injured his back during that struggle. He further testified that when he spoke to Caauwe about Caauwe’s admission to the hospital for back problems, Caauwe told him that “he injured it while he was cutting the grass *** I know he had a pull-start on his lawnmower.” The Michael Reese history given by Caauwe in June of 1977 contained a reference that there was no history of back trauma and that Caauwe’s chief complaint was of lower backaches for the past 11 years.

Since the Pension Board’s action was not unconstitutional, the Pension Board complied with our previous order, and the decision is not against the manifest weight of the evidence, we affirm the decision of the trial court reaffirming the decision of the Pension Board denying Neal Caauwe a line of duty pension.

Judgment affirmed.

LORENZ, P.J., and GORDON, J., concur.


author: JUSTICE EGAN

text:
    JUAN C. BOOKER, Plaintiff-Appellant, v. THE DEPARTMENT OF EMPLOYMENT SECURITY et al., Defendants-Appellees.
    First District (6th Division)
    No. 1 — 88—3489
    Opinion filed June 28,1991.
    Juan C. Booker, appellant pro se.

    Roland Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff brought this action for administrative review of a decision of the Board of Review of the Illinois Department of Employment Security (Board) determining that he was ineligible for unemployment compensation benefits because he had voluntarily left his employment without good cause attributable to the employer, Illinois Bell Telephone Company, Inc. (IBT), under section 601A of the Illinois Unemployment Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 431A). The circuit court affirmed the Board’s decision. The plaintiff has appealed pro se, contending (1) the manner in which the action was conducted violated due process of law and (2) the trial court decided the matter without considering evidence which entitled him to unemployment benefits.

When the plaintiff initially applied for unemployment compensation benefits, he attached a letter to his office manager at IBT stating in part:

“I did advise you that I was going to take an early retirement from the company to pursue my career in writing. This letter is to affirm my resignation from the company. I decided to make it official by presenting this letter to you, even though you had acknowledged it several weeks ago. Please note the date we discussed, 5th February 1988, to be the official date.
Please forward any and all correspondence to the above address. If I have any money from the profit sharing plan, insurance, or pension plan, please advise respective departments to forward all property.
Your kind and considerate response to these matters will be appreciated.
It was lovely working for you and the Company as a whole. I’ve learned a lot of valuable information and marketing skills; especially bookkeeping.
Again, it has been a pleasure.”

In applying for benefits, the plaintiff explained that he voluntarily quit because he was demoted and the company was determined not to advance him. He had spoken to a supervisor about the problem. When he started questioning the pension system of IBT, he was told that he would be discharged eventually so it was best that he quit. A claims adjudicator found that the plaintiff had voluntarily quit his employment on February 5, 1988, for personal reasons, and took an early retirement so he could become self-employed.

The plaintiff unsuccessfully sought a rehearing claiming that he was harassed for no reason and that IBT was trying to destroy him financially. He appealed further and testified at a hearing before a referee that he quit after 11 years of employment at IBT because he was harassed by IBT. He complained that his property was confiscated by IBT when his wages were garnished based on an order for child support. He explained that he told IBT that he wished to leave to pursue a career in writing, but there were other reasons, such as harassment and his property being confiscated by the garnishment proceedings which prompted his departure. He considered the court order garnishing his wages as a malicious act in which he was required to pay monthly child support of $1,415 although his take-home pay was $423 every two weeks. This resulted in the proceeds of his pay check being seized.

The referee found that the plaintiff was disqualified from benefits because he voluntarily left his employment for a purely personal reason and not for any good cause attributable to the employer. The Board confirmed the referee’s decision, and the circuit court affirmed the Board.

The plaintiff’s first contention is that he was denied due process of law during the administrative proceedings. He complains that various labor department documents were included in the record; that IBT had the opportunity to come to court to refute his allegations but chose not to come forward; and that the transcript of the administrative hearing contains “inaudible” portions. He suggests that some documents submitted to the hearing examiner are not contained in the record and that the Board did not actually listen to the tape of the hearing before rendering its decision and “rubber stamped” the decision of the referee. He also makes additional general allegations of fraud in connection with incompleteness of the record.

The transcript of the administrative hearings demonstrates that the plaintiff received a fair hearing at which he had full opportunity to present evidence in support of his position. (Minfield v. Bernardi (1984), 122 Ill. App. 3d 97, 101, 460 N.E.2d 766.) With regard to the charge that parts of the recording of the proceedings are inaudible, we judge that the plaintiff has not demonstrated how he was prejudiced. The mere fact that portions of the record of the proceedings may be inaudible, does not, of itself, establish a denial of due process. After examining the record, we find no basis for the plaintiff’s claims of a denial of due process.

The plaintiff’s brief deals primarily with his claims of deprivation of constitutional rights without argument or citation of authority concerning his underlying claim that he was improperly denied unemployment compensation benefits. The reason for the Board’s denial of benefits was the plaintiff’s admission that he had voluntarily left his employment, as shown by his handwritten letter of resignation. We do not consider that the trial court acted improperly in affirming the Board’s decision which is not contrary to the manifest weight of the evidence. (See Paddock v. Department of Employment Security (1989), 184 Ill. App. 3d 945, 951, 540 N.E.2d 1053.) It is clear that following his resignation and upon applying for benefits and throughout the administrative proceedings, the plaintiff sought to qualify his resignation by setting forth several additional explanations other than his desire to pursue a course in writing, such as the claim of harassment by IBT and the wage garnishment he claimed was unjust. The charge of harassment was not established, and the fact that the plaintiff’s wages were garnished does not constitute good cause for the plaintiff to leave his employment.

For these reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McNAMARA and LaPORTA, JJ., concur.